Miller v. Cache River Drainage Dist. No. 2, 7024.

• Decision Date: 05 April 1943
• Docket Number: No. 7024.,7024.
• Citation: 170 S.W.2d 371
• Parties: MILLER et al. v. CACHE RIVER DRAINAGE DIST. NO. 2 OF GREENE COUNTY.
• Court: Arkansas Supreme Court

170 S.W.2d 371

MILLER et al. v. CACHE RIVER DRAINAGE DIST. NO. 2 OF GREENE COUNTY.

No. 7024.

Supreme Court of Arkansas.

April 5, 1943.

Rehearing Denied May 3, 1943.

Appeal from Chancery Court, Greene County; J. F. Gautney, Chancellor.

Suit by Cache River Drainage District No. 2 of Greene County against S. M. Miller and others to foreclose lands occupied by defendant under eight donation deeds executed by land commissioner. From an adverse decree, defendants appeal.

Affirmed.

Bratton & Coleman, of Paragould, for appellants.

Kirsch & Cathey, of Paragould, for appellee.

GRIFFIN SMITH, Chief Justice.

March 18, 1936, the land commissioner executed the state's donation deed to J. F. Grooms, conveying lands described in the margin.¹

Exactly a year later S. M. Miller, in similar manner, acquired certain property, shown in the footnote.² State and county taxes were paid by Miller for 1934-1940 and intervening years. Like payments were made by Grooms for 1936-1940 and intervening years.

In February, 1941, Cache River Drainage District No. 2 of Greene county filed its complaint, alleging that certain lands, including those claimed by Miller and Grooms, were embraced within the District and that betterments were delinquent. There was a prayer for foreclosure.³

The defendants (appellants here) denied legal existence of the District. They asserted that its corporate status was dissolved by an order of the federal court. All limitation statutes were pleaded. Specifically, it was contended that Miller's property was not in the District. As to Grooms, insistence is that title to forty acres was confirmed under authority of Act 296 of 1929, and the District lost its lien by failing to pay state and county taxes; hence, it is argued, there was no tax for which the District could sell, and the donation deed is paramount.

The District was created by county court order of September 17, 1919. Lands in township seventeen were not included. An engineer's map showing that lands in township eighteen were embraced within the District was filed January 9, 1920. Estimates and plans filed by the engineering firm January 9 recite proposals to dig a lateral ditch extending from township eighteen along the east line of section one in township seventeen. The commissioners' assessment roll was filed with the county clerk February 2, 1920. It included charges against lands in township seventeen. Concurrently the county clerk attached his certificate that benefits would aggregate $691,841.44.

Miller's attack upon the District alleges disregard of § 4462 of Pope's Digest. Effect of the pleading is that there was want of due process.

It must be conceded that appellant Miller is correct in his contention that the statute was not complied with. If the record ended here we would readily agree that the decree should be reversed. But there is more. The county clerk, testifying from records, stated that although assessed benefits were $691,841.44, reductions by the [county] court amounted to $13,960.65, leaving $677,880.79.

May 1, 1920, commissioners asked the county court for assessments payable in installments to retire a proposed bond issue of $550,000. In this petition it was recited that assessed benefits aggregated $677,880.79. The court authorized issuance of the bonds, to be dated January 1, 1920. An undated county court judgment approved "all matters" relating to organization of the District, employment of engineers and attorneys, and other transactions.⁴

W. A. Branch, county judge when the District was formed, was permitted, without objection, to testify that a tax was extended against lands in section one, township seventeen, "the very first year, which was 1921, and payments were made by the respective land owners for a number of years."

Evidence is decisive of the proposition that commissioners and the county court, in all dealings subsequent to February 2, 1920, regarded lands in section one of township seventeen (and in other sections of the same township) as being a part of the District. This conclusion is inescapable when it is seen that the court's order reducing benefits left net assessments at $677,880.79. The records do not disclose that any of the reductions applied to the acreage now claimed by Miller — lands owned by Bertig and Kitchens when the District was formed.

Anticipating that legality of the District as it affected township seventeen would be questioned, a curative Act was passed by the Extraordinary Session of the Forty-Second General Assembly. It appears at page 2322 as Act No. 273, approved February 20, 1920 — eighteen days after the county clerk received from the commissioners assessment rolls including lands in township seventeen.

Section 1 of Act 273 not only undertook to cure organizational defects, but contains this language: "* * * said district is duly established as a drainage district, organized under the provisions of Act No. 279 * * * of the year 1909."

It is contended this Act has no application because, as appellant Miller says, legislative intent related to Cache River Drainage District No. 2; and, since the District as legally created did not embrace the questioned lands, the so-called curative Act did nothing more than repair irregularities pertaining to a District with boundaries extending no farther south than the south boundary of township eighteen.

Approval of Act 273 was anterior to the county court's finding that assessed benefits were $677,880.79, but subsequent to the filing of assessment rolls. Act 273, with an emergency clause, gave property-owners twenty days within which to protest in chancery court.

Validity of Cache River Drainage District Number Two⁵ was upheld by this court December 11, 1922, when W. C. Taylor and others appealed from an adverse decree. In the opinion it is said that authority of the legislature to assess betterments in improvement districts has been repeatedly recognized. Also, the legislature may validate assessments made by other agencies. See Burton v. Harris, 202 Ark. 696, 152 S.W.2d 529.

In the Taylor case commissioners of the District sought judgments for delinquent betterments and a decree foreclosing liens. Although the property here contended for by Miller was not involved — taxes having been paid — the east half of lot one, the west half of lot one, and lots two and three in the northeast quarter of section one, township seventeen, were ordered sold, as were other lands in township seventeen. The court found that the District was established under provisions of the general drainage laws enacted in 1919, * * * and that "the list of lands set out as exhibits to plaintiff's complaint are within the limits of Cache River Drainage District No. 2, and there has been levied against the benefits previously assessed in said district the amount of taxes due for the year 1921."

The fact that lands now claimed by Miller were not in the decree prevents the Taylor decision from being res judicata in respect of the instant suit. But the decree is conclusive that lands in township seventeen were in the drainage district. Without doubt it was sought to annex them by action of the commissioners in approving and filing the assessment roll aggregating $691,841.44, pertaining to lands in townships seventeen, eighteen, and nineteen, and by the county court's act in making assessments of $677,880.79 after reductions of $13,960.65 had been allowed.

We think the decree which resulted in the appeal of Taylor and others...