Protho v. Williams
| Decision Date | 28 February 1921 |
| Docket Number | (No. 199.) |
| Parties | PROTHO et al. v. WILLIAMS. |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor.
Action by Mrs. Mary Williams against H. Protho and others, as Commissioners of the Faulkner Lake Drainage District. Decree for plaintiff, and defendants appeal. Affirmed.
Chas. Jacobson, of Little Rock, for appellants.
C. T. Coleman, W. H. Pemberton, and W. G. Riddick, all of Little Rock, for appellee.
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 30-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 perpetuated 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 at Mr. Jacobson's office (May 10, 1916). Her testimony further shows that they had cleared a right of way between the Kline place and witness' place on the route that witness desired to have the ditch run, and witness was led to believe from this that they intended finally to adopt that route, and witness did not know that the commissioners had finally located the route where it now is until they unloaded the machinery on the ground. In response to witness' first objection to the location, they had cut the right of way between Mrs. Kline's place and witness' place. In August, 1917, when they began to unload the machinery, witness discovered that appellants had not changed the location. Witness was not sure until then that they intended to finally locate the ditch where it is now located. After the district was organized, witness employed Col. House to represent her, and later, in the summer of 1917, she employed Mr. Pemberton.
The testimony of the commissioners was to the effect that while they had frequent conversations with the appellee, who was protesting as to the location of the ditch, that they never intended, by any word or act of theirs, to give her the impression that any change would be made. They never told her, and no one was authorized by them to tell her, that they would make a change, and that if they did not make such change they would notify her. The commissioners were anxious to accommodate her if possible, provided it was consistent with the best interest of the district; but the route had been fixed by the engineer after a thorough investigation, and the ditch finally constructed as originally located. There was a meeting at the home of Mr. Galloway, one of the commissioners, on February 26, 1917, at which the entire matter was discussed, and again agreed that no change would be made; and on that day the attorney for the district was instructed by the commissioners to write the attorney of the appellee to that effect, which was done. Such was the purport of the testimony by the commissioners and the attorney of the district. The engineer of the district also testified that he never made any statement that would lead the appellee to believe that any change would be made in the route of the ditch other than the report...
To continue reading
Request your trial