Ritter v. Drainage District No. 1, Poinsett County

• Decision Date: 30 April 1906
• Parties: RITTER v. DRAINAGE DISTRICT NO. 1, POINSETT COUNTY
• Court: Arkansas Supreme Court

94 S.W. 711

78 Ark. 580

RITTER v. DRAINAGE DISTRICT NO. 1, POINSETT COUNTY

Supreme Court of Arkansas

April 30, 1906

Appeal from Poinsett Circuit Court; Allen Hughes, Judge; affirmed.

Judgment affirmed.

L. C Going, for appellant.

1. The act is unconstitutional, in that it provides for the taking of property without just compensation or due process of law. Under the act of Congress of September 28, 1850, the State took the lands as trustee for the reclamation of the lands by the construction of levees and drains. The object of the act was not that these lands should be used as a means of revenue to the State.

2. It is also unconstitutional because it does not restrict the assessment to the value of the benefit conferred upon the landowner. 9 Am. Dec. 634; 6 Vroom (N. J.), 497.

3. The act is also defective in that it does not provide for sufficient notice to the landowner. 74 N.Y. 234; 95 U.S. 733; 92 U.S. 480; 102 U.S. 586; 7 Neb. 258; 16 P. 549.

4. The petition does not comply with the act in that it fails to show where the ditch is to begin.

5. The act is further not complied with in that the schedule filed by the viewers with their report makes no showing as to floodgates, waterways, farm crossings, bridges and dimensions thereof, nor the number of feet in length of the proposed ditch through each tract of land.

6. The viewers overestimated the benefits to be derived by appellant, and the assessment is therefore, as to his lands excessive. 34 Ill. 203; 51 Ill. 130.

7. The proof is insufficient to show the necessity of the construction of the ditch.

R. L Cowan, Benj. Harris and J. J. Mardis, for appellee.

1. The act is the same as the act of April 23, 1891, with slight modifications. Its constitutionality has been sustained by this court. 64 Ark. 555. Courts generally have sustained the constitutionality of such acts. 96 U.S. (L. Ed.), 617; 47 Cal. 222; 158 Ind. 159; 28 Wash. 38; 164 U.S. 112, 163. The act is directed to the drainage of low and marshy lands as a menace to public health, etc., and is within the police power of the State. 152 U.S. 133; 151 U.S. (38 L. Ed.), 269. Its validity can not be attacked on the theory that it impairs the obligation of a contract. 111 U. S. (28 L. Ed.), 573. As to the contention that under the act property is taken without just compensation, the public good is to be considered rather than private interests. Cooley on Tax. (2 Ed.), 617.

2. The act requires a general description of the ditch or drain, stating the starting point, route and terminus. This does not mean an exact and accurate description thereof in the petition. 64 Ark. supra; 66 Ind. 178; 42 N.E. 207; 36 N.E. 672; 65 Cal. 635; 47 N.E. 679; 45 N.W. 345.

3. The necessity for floodgates, waterways, etc., is not shown to exist. Inasmuch as the viewers recommended that the construction of the ditch and laterals be let to contract, it was of no moment to report the exact distance in feet through the separate holdings of owners.

4. The benefits to be derived from the construction of the ditch is fully shown by the evidence. The court's finding on this point is conclusive.

5. As to the necessity for the construction of the ditch, it is sufficient to allege in the petition that the drain will benefit the public health or be of public utility. It is unnecessary to show how these objects will be attained. 93 Ind. 360. Moreover, the question of the necessity for the proposed improvement and whether the public health and convenience requires it, is for the lower court to decide, and, in the absence of an allegation of fraud, such questions are not subject to review on appeal. 66 Ark. 302. See also 44 L.Ed. S.Ct. 636.

OPINION

MCCULLOCH, J.

This is a proceeding commenced in the county court of Poinsett County to establish a drainage district under the act of April 23, 1903 (Kirby's Digest §§ 1414-1450 for the purpose of constructing a ditch or drain along a certain route through lands described into the St. Francis River.

The petition for the establishment of the district was signed by eight landowners whose lands were to be affected by the proposed improvement, in accordance with the requirements of the statute, and was duly filed and presented to the county court, and the petitioners gave bond as provided by the statute.

The court made an order appointing viewers and a civil engineer to make examination and survey of the lands to be affected, and caused notice to be published of the hearing of the report thereof. The report was made and approved, and the court made an order establishing the district, and directed the viewers and engineer to make a survey and plat of lands to be benefited by the proposed ditch, and an estimate of the cost of improvement and assessment on the lands. The report and assessments of the viewers were filed, notice thereof to landowners was duly served and published, and upon hearing the said final report and assessments were approved and confirmed by the court. Appellant, Ritter, the owner of land affected by the improvement, appeared and filed his exceptions to the judgment of the court in establishing the district and in approving the assessments, and appealed to the circuit court, where the same judgment was rendered, and he appealed to this court.

He attacks the validity of the statute, and the proceedings pursuant thereto, upon the following grounds:

1. That the terms of the statute impose an improper and illegal burden upon the owner of "swamp and overflowed lands" which were granted to the State of Arkansas by the United States, under the act of Congress of September 28, 1850.

2. That the statute is unconstitutional and void because it does not limit the assessment upon the lands to the value of the benefits conferred by the improvement.

3. That the statute is void because the notice required thereby to landowners of the establishment of the district and assessment of lands is unreasonable and insufficient, so that the effect of the assessment is a taking of property "without due process of law."

4. That the petition and notice fail to sufficiently describe the proposed beginning and route of the ditch, so as to give the court jurisdiction and put the landowners upon notice of the proceedings.

5. That the report and schedules of the viewers were insufficient because they failed to make any showing as to floodgates, waterways, farms or crossings, bridges and dimensions, or the number of feet in length of the proposed ditch through each tract of land.

6. That the necessity for the proposed improvement was not made to appear by sufficient proof in the proceedings.

He also attacks the assessment upon his own lands, on the ground that, according to the proof, as he alleges, they will not be benefited by the ditch, and that the viewers overestimated the value of the benefits to his lands.

The second, third and fourth grounds of attack are settled...