Norton v. Bacon
| Decision Date | 06 July 1914 |
| Docket Number | 85 |
| Citation | 168 S.W. 1088,113 Ark. 566 |
| Parties | NORTON v. BACON |
| Court | Arkansas Supreme Court |
Appeal from Lincoln Chancery Court; John M. Elliott, Chancellor reversed.
Reversed and remanded.
Danaher & Danaher, for appellant.
The only question in this case is whether the mistake in the description of the land invalidated the formation of the district. The law plainly requires that the petition shall describe the territory to be included, and shall be accompanied by a plat, etc. Proper notice is jurisdictional. Act 402, 1909, p. 1153; 104 Ark. 298.
E. L Carter, for appellees.
104 Ark. 298, was based upon different grounds. Kirby's Dig § 5665; Acts 1909, p. 1153. The plat filed distinctly showed that part of section 6 was included in the district. The burden was on appellant to show that a majority of the property owners did not sign the petition or that there was fraud. 98 Ark. 543.
A road improvement district in Lincoln County was formed by an order of the county court, made upon petition of property owners in the district to be affected, pursuant to Act No. 402 of the General Assembly of 1909.
Appellant owned property in the district, and, after the district was formed and proceedings were begun thereunder toward the assessment of property for the improvement, he instituted this action to restrain such proceedings, alleging that the order of the county court is void for the reason that neither the boundaries of the district nor the lands situated therein were described in the published notice.
The chancery court sustained a demurrer to the complaint, and an appeal has been prosecuted to this court.
According to the allegations of the complaint, the petition for the improvement undertook to describe the tracts of land to be affected, and a plat was filed with the petition giving a description of the lands to be included in the district and also showing the boundaries of the district; but the published notice which preceded the order of the court only set forth the description of the land as stated in the petition.
Section 6, township 9 south, range 5 west, is, as alleged in the complaint, an irregular section, according to the plat of the public survey, and the subdivisions thereof are numbered as lots. A portion of that section is included in the boundaries as shown in the plat and also by description of certain lots set forth in the petition and notice; but there is a variance between the description in the petition and notice and in that portion of the section included in the boundaries shown on the plat. That is to say, there is a variance if it be true, as alleged in the complaint, that the lots described inside of the boundaries do not answer to the description of those lots according to the plat of the public survey. Those lots contain 200 acres and lie along the west boundary line of the section and the east boundary of the districts. The lots included in the boundaries shown on the plat are described in the Government surveys as west half lot 5 and lots 6 and 17; whereas, in the petition and plat and in the published notice that territory is described as lots 4, 5, 12, 13 and 20.
The plat of the public survey, as exhibited with the complaint, shows that lots 4, 12, 13 and 20 are situated in another portion of section 6 and are not contiguous to the other territory embraced in the district.
We have, therefore, according to the allegations of the complaint, a case where the notice does not conform to the plat filed with the petition, and the question raised is whether or not that avoids the proceedings.
The statute under which the district was formed reads as follows:
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Sanders v. Wilmans
...the district, and the notice of the hearing of the petition could have been raised by them to invalidate the district. 147 Ark. 352; 113 Ark. 566; 50 Ark. 116. The lower court held that they could not raise the question now, since it would be a collateral attack on the judgment. The authori......
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Castle v. Sanders
... ... that the district is not created without it. Crane ... v. Siloam Springs, 67 Ark. 30, 55 S.W. 955; ... Norton v. Bacon, 113 Ark. 566, 168 S.W ... 1088; Voss v. Reyburn, 104 Ark. 298, 148 ... S.W. 510; McRaven v. Clancy, 115 Ark. 163, ... 171 S.W. 88. In ... ...
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American State Bank, Charleston, Ark. v. Street Imp. Dist. No. 3
... ... 762, 9 S.W.2d 43 ... [7]McRaven v. Clancy, 115 ... Ark. 163, 171 S.W. 88. See, also: Voss v ... Reyburn, 104 Ark. 298, 148 S.W. 510; Norton ... v. Bacon, 113 Ark. 566, 168 S.W. 1088; Bell ... v. Phillips, 116 Ark. 167, 172 S.W. 864; ... Paschal v. Swepston, 120 Ark. 230, 179 S.W ... ...
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Dorsey Land & Lumber Co. v. Board of Directors of Garland Levee District
...property owners on notice the statute is void. Ferrell v. Keel, 105 Ark. 380, 151 S.W. 269; Norton v. Bacon, 113 Ark. 566, 168 S.W. 1088, 168 S.W. 1088; Morgan Engineering Co. v. Cache River District, 122 Ark. 491, 184 S.W. 57; Heinemann v. Sweatt, 130 Ark. 70, 196 S.W. 931. On the other ha......