Keith v. Drainage Dist. No. 7 of Poinsett County, 233.

• Decision Date: 04 April 1932
• Docket Number: No. 233.,233.
• Citation: 48 S.W.2d 236
• Parties: KEITH et al. v. DRAINAGE DIST. NO. 7 OF POINSETT COUNTY.
• Court: Arkansas Supreme Court

48 S.W.2d 236

KEITH et al. v. DRAINAGE DIST. NO. 7 OF POINSETT COUNTY.

No. 233.

Supreme Court of Arkansas.

April 4, 1932.

Rehearing Denied May 2, 1932.

Appeal from Poinsett Circuit Court; Neil Killough, Judge.

Petition for mandamus by Harry A. Keith and others to compel Drainage District No. 7 of Poinsett County to pay petitioner's judgment against it. From the judgment denying the writ, petitioners appeal.

Reversed and remanded with direction.

See, also, 181 Ark. 30, 24 S.W.(2d) 875; 183 Ark. 384, 36 S.W.(2d) 59; 183 Ark. 786, 38 S.W.(2d) 755.

C. T. Carpenter, of Marked Tree, for appellants.

Archer Wheatley, of Jonesboro, as amicus curiæ.

Chas. D. Frierson, of Jonesboro, for appellee.

HUMPHREYS, J.

This is an appeal from a judgment of the circuit court of Poinsett county dismissing appellants' petition for a writ of mandamus to compel the commissioners of drainage district No. 7 of Poinsett county to pay appellants' judgment against it out of the revenues of said district.

The only two questions of importance involved on the appeal under the pleadings and testimony are: First, whether appellants' right to have their judgment satisfied out of the revenues of said district is superior and paramount to liens created on said revenues for money with which to construct levees and other improvements incident to said district; second, whether mandamus is an available remedy.

1. Appellants' judgment was obtained for the value of lands taken by the district under the power of eminent domain vested in it. For a full statement of the facts under which said judgment was based and the judgment itself, reference is made to the case of Keith v. Drainage District No. 7 of Poinsett County, reported in 183 Ark. 384, 36 S.W.(2d) 59. Compensation for lands thus appropriated is guaranteed by the Constitution of 1874, art. 2, § 22, which is as follows: "The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor."

This provision of the Constitution is impliedly written into and becomes a part of every mortgage, bond, or conveyance of real estate thus acquired for the purpose of obtaining money to make improvements incident to any district. The property and revenues arising therefrom by taxation or otherwise carries the burden of paying the owners for real estate thus appropriated. This rule or principle of law was announced in the case of Organ v. Memphis & Little Rock Railway Co., 51 Ark. 235, 11 S. W. 96, which principle finds support in the great weight of authority.

The trial court found in the instant case that the...