Indian Bayou Drainage District v. Walt

• Decision Date: 26 June 1922
• Docket Number: 87
• Citation: 242 S.W. 575,154 Ark. 335
• Parties: INDIAN BAYOU DRAINAGE DISTRICT v. WALT
• Court: Arkansas Supreme Court

242 S.W. 575

154 Ark. 335

INDIAN BAYOU DRAINAGE DISTRICT v. WALT

No. 87

Supreme Court of Arkansas

June 26, 1922

Appeal from Lonoke Chancery Court, John E. Martineau, Chancellor affirmed.

Decree affirmed.

Chas A. Walls, for appellant.

Drainage districts continue to exist for the purpose of preserving the same, keeping the ditches clear from obstruction, and for extending, widening or deepening the ditches as may be found advantageous. Sec. 3630, C. & M. Digest. The commissioners may at any time alter the plans of the ditches and drainage. Sec. 3625, C. & M. Digest. The court has held under the drainage act then in force that the county court might establish a ditch on a different route from that mentioned in the petition when it was better and less expensive to do so 64 Ark. 555. The alternative drainage system did not repeal the other drainage laws, and drainage districts can be established under either system. 126 Ark. 518.

Clifton Gray and Murphy, McHaney & Dunaway, for appellees.

The commissioners have power to alter the location of the ditches at any time before constructing the work. Sec. 3625, C. & M Digest; 91 Ark. 30; Id. 79; 147 Ark. 546.

Section 3630, C. & M. Digest, applies only where the item of expense is small, such as cleaning out the ditches. But where the change involves heavy expense the property owner is entitled to be heard.

OPINION

WOOD, J.

The appellees, who were landowners in the Indian Bayou Drainage District of Lonoke County, Arkansas (hereinafter called district) instituted this action against the district and its commissioners. Appellees alleged that the district was established in September, 1912, under act No. 279 of the Acts of 1909 and the amendments thereto that the commissioners, under the authority of the general drainage laws, constructed a drainage system twenty-five miles in length, consisting of a main canal and many laterals leading into same; that the benefits to the lands in the district were assessed and bonds issued and sold in the sum of $ 147,000, and that taxes were levied and collected and were still being collected from the landowners of the district; that in December, 1921, the commissioners filed with the clerk of the county court of Lonoke County what was called "report of board of commissioners on changes in plans, and plans for extending, deepening, widening, straightening, cleaning, and otherwise improving the system of drainage in said district, and transmitting plans, specifications and estimates of the cost of the proposed work," in which it is proposed to construct an additional canal generally paralleling Old Indian Bayou main canal from the point where lateral 8 of the original drainage system enters Snow Brake, through said brake, thence in a south-easterly direction through the lowlands lying west of Indian Bayou main canal, and across the main canal on the east line of said section 1, at a point south of the quarter section line, and to construct an additional outlet through the old channel of Indian Bayou at a point about one thousand feet south of the village of Tomber-lin, where the banks of the Indian Bayou are very steep and the channel well defined. It is alleged that the proposed improvement will cost the landowners, in addition to the taxes already levied in said district, a sum of from one hundred and fifty to two hundred thousand dollars, and that it is contemplated that the commissioners will reassess the benefits and call on the county court to levy additional taxes to cover the cost of making the proposed improvement. The appellees further alleged that the proposed improvement is for the digging of another main canal of more than five miles in length within the boundaries of the district. It is alleged that the county court is without jurisdiction to make the improvement in the manner proposed; that the canal proposed would be of no benefit to the lands in the district, but, on the contrary, would result in great damage, and would be a taking of appellee's property without due process, in violation of sec. 22, art. 2 of the Constitution of the State, and of the Constitution of the United States.

The appellees prayed that the appellants be enjoined from taking any further steps in the proposed proceedings. Attached to the complaint as an exhibit is a copy of a map or blue-print showing the boundaries of the district, with the location of the ditches already constructed and the proposed changes.

The appellants demurred to the complaint on the following grounds: First, that the complaint does not state facts sufficient to constitute a cause of action; second, that the court has no jurisdiction of the subject-matter; and third, that the plaintiffs have an adequate remedy at law.

At the hearing on the demurrer the court sustained the demurrer to all parts of the complaint "except that part relating to the construction of a parallel ditch indicated on the map as from stations 'A' to '0', and overruled the demurrer as to that part of the complaint. The court entered a decree restraining the commissioners from constructing the additional canal as shown on the copy of the blueprint from stations 'A' to '0'," From that decree is this appeal.

Section 22 of act No. 279 of the Acts of 1909, digested as sec. 3630, C. & M. Digest, reads as follows: "The district shall not cease to exist upon the completion of its drainage system, but shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstruction and of extending, widening, or deepening the ditches from time to time, as it may be found advantageous to the district. To this end the commissioners may from time to time apply to the county court for the levying of additional taxes. Upon the filing of such petitions, notice shall be published by the. clerk for two weeks in a newspaper published in each of the counties in which the district embraces lands, and any property owner seeking to resist such additional tax levy may appear at the next regular term of the county court and urge his objections thereto, and either such property owners or the commissioners may appeal from the finding of the county court."

Section 2 of act No. 177 of the Acts of 1913, digested as sec. 3625 C. & M. Digest, reads as follows: "The...