Oates v. Cypress Creek Drainage Dist.

• Decision Date: 01 July 1918
• Docket Number: (No. 92.)
• Citation: 205 S.W. 293
• Parties: OATES et al. v. CYPRESS CREEK DRAINAGE DIST.
• Court: Arkansas Supreme Court

Page 293

205 S.W. 293

OATES et al. v. CYPRESS CREEK DRAINAGE DIST.

(No. 92.)

Supreme Court of Arkansas.

July 1, 1918.

Appeal from Circuit Court, Perry County; G. W. Hendricks, Judge.

Proceedings for the organization of the Cypress Creek Drainage District, wherein L. T. Oates and others filed objections. From the orders organizing the District, the objectors appeal. Affirmed.

T. S. Buzbee and H. T. Harrison, both of Little Rock, and W. P. Strait, of Morrillton, for appellants. Chas. C. Reid, of Little Rock, and John L. Hill, of Perry, for appellee.

HUMPHREYS, J.

This is an appeal by about 40 property owners and the Chicago, Rock Island & Pacific Railway Company from the circuit court of Perry county, attacking the validity of the organization and assessment of benefits on their lands in the Cypress Creek drainage district in Conway and Perry counties, Ark. The district, as organized, contains 18,000 acres of land lying in the two counties.

It is contended that the orders organizing the district were made by the circuit court when not legally in session. An examination of the complete record of the proceedings shows that all court orders for the organization of the district were made by the circuit court either at a regular or adjourned term thereof.

It is next contended that legal notice and legal petitions for the formation of the district were not filed. Only one notice is required to be given preliminary to the organization of a district. That notice must be published by the circuit clerk after the report of the engineer appointed for the district has been filed, calling upon all landowners in the district to appear before the court to show cause for or against the creation of the improvement district. The record shows that such a notice was given by the clerk in both Perry and Conway counties by publication in the Perry County News, of Perry county, and the Morrillton Headlight, of Conway county. Likewise only one petition is required in order to form a drainage improvement district under Act 279, Acts 1909, as amended by Act 221, Acts 1911. This is the initial and preliminary petition required to be signed by three or more property owners in the district, calling upon the court to establish a drainage district to embrace their property, describing generally the region which it is intended shall be embraced within the district. The record shows that such a petition was filed on August 11, 1916. Some contention is made by appellants that the petitions, purporting to show that a majority of the property owners in number and acreage forming the district, were not marked "Filed." Such a petition was not necessary under section 2, Act 221, Acts 1911, amending section 2, Act 279, Acts 1909; but, if that were necessary, the record shows that a petition was filed December 4, 1916, purporting to have been signed by a majority in number and acreage of all property owners in the district, and that said petition was considered by the circuit court in creating the district.

It is again contended that the maps, profiles, estimates, etc., required to be filed by the engineer, preliminary to the formation of the district, were not filed in the manner provided by law. The law requires that the engineer shall make a survey ascertaining the limits of the region benefited by the proposed drainage system and shall file with the circuit clerk a report showing the territory which shall be benefited by the improvement, giving a general idea of its character and expense, and making such suggestions as to the size of the drainage ditches and their location as he may deem advisable. The record shows that the preliminary report and estimate of the cost of the improvement, as required by section 1, Act 221, Acts 1911, amending section 1, Act 279, Acts 1909, was filed on October 16, 1916.

It is insisted that the commissioners are disqualified on account of being landowners in the district. Section 6, Act 177, Acts 1913, amending Act 221, Acts 1911, and Act 279, Acts 1909, requires the commissioners of a drainage district lying in more than one county to be the owners of real property within said district. It is mandatory that the commissioners be interested in a material way in the district, so the argument that the district should be invalidated and that the assessment should be canceled because the promoters of the district and the commissioners making the assessments were interested cannot avail appellants in this case. The further fact that John S. Harris, commissioner, purchased an interest in timber on lands in the district, contingent upon the organization of the district, is not sufficient to invalidate the district for fraud. The evidence is not sufficient to show that the commissioners improperly assessed benefits against the lands on account of Harris' contingent interest in timber on a large tract of land included in the district.

It is also insisted that the assessment of benefits to the property in the district was not made and filed by the commissioners and notice thereof published as required by law. The manner of making and filing an assessment of benefits to the lands and improvements thereon, and the notice to be given thereof, is particularly set out and designated in section 7, Act 177, Acts 1913, amending section 7, Act 279, Acts 1909. These requirements were literally complied with. The assessment book was prepared, as required, subscribed by the commissioners, and filed on March 29, 1917. Notice to property owners that the assessment of benefits to be filed was published in the Perry County News, Perry county, and the Morrillton Headlight, of Conway county, calling on all property owners to appear before the court on April 24, 1917, and present objections, if any, to the assessments. Appellants are therefore in error in this contention.

It is insisted by appellants that no benefits will accrue to their property by reason of the improvement and that the benefits assessed are excessive. The chief reason urged is that their lands are high, and not subject to overflow and distant from the canal and laterals. This court has committed itself to the doctrine that:

"The amount of benefit which an improvement will confer upon particular land, indeed whether it is a benefit at all, is a matter of forecast and estimate." Louisville & Nashville Ry. Co. v. Barber Asphalt Paving Co., 197 U. S. 430, 25 Sup. Ct. 466, 49 L. Ed. 819.

In adopting this doctrine, this court said:

"The assessment of future benefits is largely a matter of estimate and to some extent speculative. * * * We must depend largely upon the opinions of men of sound judgment and reasonable information on the subject to determine what the future benefits will probably be. If it were necessary to find an...