Protho v. Williams

• Decision Date: 28 February 1921
• Docket Number: 199
• Citation: 229 S.W. 38,147 Ark. 535
• Parties: PROTHO v. WILLIAMS
• Court: Arkansas Supreme Court

229 S.W. 38

147 Ark. 535

PROTHO v. WILLIAMS

No. 199

Supreme Court of Arkansas

February 28, 1921

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Chas Jacobson, for appellant.

Appellants by their conduct did not lead appellee to believe that they were going to change the route of the ditch. There is no proof of misrepresentation or deception. Appellee had an opportunity for her day in court, which she chose to ignore and the court erred in sustaining the demurrer and granting the injunction. 224 S.W. 334. The county court had power to change the location of the ditch and the route. 91 Ark. 79 120 S.W. 402; Drainage act of 1909, § 8. The demurrer should have been sustained, as the chancery court had no jurisdiction. All those matters are for the county court. Appellee should have protested, as she and her counsel had ample notice and had full knowledge of all the facts and records.

Chas. T. Coleman, W. H. Pemberton and W. G. Riddick, for appellee.

1. Appellee is not estopped by the statute bar of thirty days in which she should have made protest against the assessment of benefits. The doctrine of estoppel is as old as the law itself, and has often been applied. 36 Ark. 96; 99 Id. 260; 91 Id. 141. The doctrine has often been applied to prevent the bar of the statute of limitation. 60 Ark. 491; 80 Ky. 309; 33 Miss. 173; 56 N.H. 143; 65 Mo.App. 55; 71 Id. 299; 7 N.H. 494; 91 N.C. 398. This doctrine may be invoked by waiver. Wood on Limitations, § 49; 61 S.W. 386; 54 Id. 689. The case in 74 N.E. 123, is a very similar case to this and supports our contention.

2. The cases cited for appellant do not sustain his contention. 91 Ark. 31; Ib. 79.

3. Mrs. Williams was misled by the acts and word of the commissioners and properly acted upon them.

4. She was misled by what the commissioners said and what they did. Under the law the Legislature may levy benefit assessments directly or through a board of commissioners until the indebtedness of the district is paid. 139 Ark. 4; Sand. & H. Digest, § 5855.

5. The commissioners promised to notify Mrs. Williams if a change was not made and they failed.

6. The findings of the circuit court on questions of fact are conclusive as the verdict of a jury. 35 Ark. 445. Where the evidence is conflicting, the finding is conclusive. 84 Ark. 406; 90 Id. 100; 122 Id. 43. The chancellor's finding will not be disturbed on appeal unless against the clear preponderance of the evidence. 129 Ark. 583; 181 S.W. 913; 121 Id. 295. See, also, 91 Ill. 273.

WOOD J. MCCULLOCH, C. J. and SMITH, J., dissenting.

OPINION

WOOD, J.

This action was brought by the appellee against the appellants as commissioners of the Faulkner Lake Drainage District. She alleged in substance among other things that the district was created September 18, 1916; that she owned certain lands in the district (described in her complaint); that the benefits assessed against her property were $ 5,004.50; that the assessed valuation of her property was $ 8,600; that before and after the expiration of the thirty day period within which she had the right to make protests in the county court against the action of the commissioners in the assessment of benefits or damages, or to acquiesce therein, she took up with the commissioners the change of the route of the ditch in an endeavor to have them locate the same between her place and the Kline place instead of the place where it is now located; that she represented and showed to the commissioners that the route they had selected would do her property great damage and pointed out to them a more suitable location; that the commissioners represented to her that they would take up the matter of changing the route of the ditch according to her suggestion and expressly stated to her that they would not locate the ditch where it is now located; but, if they did not change the location, they would so inform her; that she relied wholly upon these assurances of the commissioners that they would notify her if they allowed the ditch to remain where they had located it, and she continued to so rely until the time expired for her to protest. She alleged at length and in detail the various conversations that she had with the commissioners and the attorney for the district, and, among other things, stated that as late as March or April 1917, the commissioners through their attorney, told the attorney of the plaintiff to tell the plaintiff that she need not worry any more about the location of the ditch; that the commissioners had agreed to locate it in accordance with her suggestion; that her attorney so notified her, and neither he nor she gave the matter any further thought until some months afterward, to- wit, on the 24th day of August, 1917, at which time she learned that machinery was being placed on the ground at the point where the ditch is now located and on the route where the commissioners assured her the ditch would not run; that at that time her regular attorney was absent, and she employed another attorney, and at her request a meeting of the board of commissioners was called within a few days thereafter, and at that meeting the commissioners again assured the plaintiff that they had not decided where the ditch would be located, and that they would notify her when they did so. There is also an allegation in the complaint to the effect that the commissioners had the right to change the route of the ditch at any time and to revise the assessments in accordance therewith, and that it was provided in the contract for the construction of the ditch that the location, distances, and number of lateral ditches may be altered by the commissioners prior to or after the work had commenced, showing that the commissioners reserved the right to change the location of the ditch at any time as they had agreed to do with the plaintiff. She also alleged that the commissioners utterly failed and refused to keep their word to her; that, through the representations and assurances of the commissioners and their attorney, she was misled, deceived and lulled to rest; that the commissioners, notwithstanding these assurances and promises, proceeded to have the ditch constructed over the route where they had first located the same; that the commissioners thereby perpetrated a fraud upon her by which her property was taken and damaged. She set forth specifically the items of her damage, which amounted in the aggregate to the sum of $ 30,000, for which she prayed judgment. The commissioners answered, setting up the legality of the district, alleging that they had proceeded in all things as the law required in such cases, and specifically denied that they had by any word or act of theirs in any manner misled or deceived the plaintiff as to the route of the ditch. They denied that they had ever agreed to change the same as requested by her, or that they had ever led her to believe that the change would be made, and specifically denied the allegations of fraud. They alleged that plaintiff and her attorney had full knowledge of the route of the ditch where it was finally located in ample time to make their protests to the county court, and that plaintiff had ignored her remedy in that court until long after the time for making such protests had expired. They specifically denied the allegations of damage and prayed that the complaint be dismissed for want of equity.

The testimony on the issues raised was heard ore tenus by the trial court, which rendered a decree in favor of the appellee against the appellants in the sum of $ 11,040, with interest, and restraining them from the further collection of assessments, from which decree is this appeal.

The first questions presented by this appeal are whether or not the appellants as commissioners by their conduct led the appellee to believe that they were going to change the route of the ditch so as to locate it between her place and the Kline place, instead of between her place and the Spence place where it was finally located, and whether or not they told her that if they did not make such change she would be notified. These are purely questions of fact, and it could serve no useful purpose to set out in detail the testimony concerning them. The testimony shows that the district was established September 16, 1916. The assessment of benefits was filed with the county court October 9, 1916. Notice was duly given of the filing of such assessment, as the statute requires, and November 14, 1916, was set for the hearing on the assessments.

The uncontradicted testimony shows that, prior to the order of confirmation, the appellee had protested against the route of the ditch as laid out by the commissioners and finally adopted by them. The undisputed testimony also shows that she continued to protest against the location after November 14 1916, up until the work on the ditch was begun, but there is a sharp conflict in the testimony as to whether or not the commissioners gave the appellee to understand that the route as originally fixed would be changed, and if not changed that she would be notified. The appellee testified positively that she had various conversations with the commissioners and their attorney, and that they told her when she first went to them (which was long before November 14, 1916,) that they would take it up with the engineer and place the ditch somewhere else, if it possibly could be done. They had already determined on the advisability of putting it where it now exists, and after witness pointed out the way it would affect her homestead they said "if they found out there was no other way to go and they had to go that way, the way it now is, they would advise me." This they said at the first meeting, which was...