Sain v. Cypress Creek Drainage District

• Decision Date: 24 December 1923
• Docket Number: 64
• Parties: SAIN v. CYPRESS CREEK DRAINAGE DISTRICT
• Court: Arkansas Supreme Court

257 S.W. 49

161 Ark. 529

SAIN v. CYPRESS CREEK DRAINAGE DISTRICT

No. 64

Supreme Court of Arkansas

December 24, 1923

Appeal from Desha Circuit Court; T. G. Parham, Judge; affirmed.

Judgment affirmed.

Williamson & Williamson, for appellant.

1. The liability upon which appellants rely is found in the formation of the drainage district by the Legislature, and in the construction thereof in conformity with the requirements of the act, and is based upon the provisions of the State Constitution, art. 2, § 22, and of the United States Constitution, art. 14, § 1. As a necessary result of the construction authorized and directed by the Legislature there was an actual taking of the lands of the appellants. 140 Ark. 241; 15 Ann. Cases 909; 94 F. 613, 36 C. C. A. 418; 128 F. 125; 236 Ill. 36; 15 Ann. Cases 904-908; 188 U.S. 446 23 S.Ct. 349; 149 Ark. 15. This court has repeatedly held that the Legislature cannot arbitrarily declare property benefited which naturally cannot be, and that it cannot arbitrarily so tax lands as to amount to a confiscation of property without benefit. 147 Ark. 181; 152 Ark. 573; 89 Ark 513; 118 Ark. 294, 300.

2. The circuit court has jurisdiction to enforce liability in cases of this kind. 140 Ark. 241, 247-248.

3. No limitation has run against appellants in these suits. The cause of action accrued when, and limitations did not begin to run until, canal No. 19 was constructed in 1919. 157 Ark. 125; 92 Ark. 406.

4. The liability in these suits is not concluded by the legislative assessment in 1915. The attempted assessments, notices and actions prior to June 23, 1913, were adjudicated to be a nullity. They deprived the appellants of nothing. 109 Ark. 60. The lower court erred in going out of the pleadings and declaring that, by the act approved February 25, 1915, the Legislature ratified the assessment, etc., and that the board of commissioners made due allowance for damages to plaintiffs in determining the benefits to the tract as a whole, making a reduction to that extent in the total benefits assessed against the whole tract, etc. 149 Ark. 15; Page & Jones, Taxation by Assessment, vol. 1, p. 67; 66 Minn. 161. See also 140 Ark. 241; 147 Ark. 191, 194; 83 Ark. 54.

5. Appellants are not concluded by the chancery decree.

6. Appellants are not concluded by any statutory notice. The only legal evidence of the notice and its publication must be found, if at all, in the record of the board. Act No. 80, Acts 1915, p. 309, § 4; Id. p. 303, § 3; Act No. 455, Acts 1911, p. 1231, § 2; 55 Ark. 218, 221. Since the record does not show this notice, nor that the board fixed a day for the hearing, the notice and subsequent proceedings are void. 127 Ark. 165, 168; 64 Ark. 556, 569; 135 Ark. 528; 154 Ark. 46.

DeWitt Poe, E. E. Hobson and Coleman, Robinson & House, for appellee.

1. Appellants are concluded by the Legislative assessment. Acts 1915, p. 309, § 2; 220 S.W. 56; 83 Ark. 344; 112 Ark. 357; 107 Ark. 285; 133 Ark. 122; 100 Ark. 369; 108 Ark. 421.

2. They are concluded by the consent decree. Acts 1915, pp. 309, 310, § 5. This is a collateral attack both upon the assessment of benefits and on the chancery decree, which cannot be maintained. 151 Ark. 484; 139 Ark. 168; Id. 277; 144 Ark. 632; 147 Ark. 469.

3. They are concluded by the finding of the board of commissioners that the lands were not damaged, and by their failure to assail this finding in the manner and within the time prescribed by law. Act 1915, § 6 et seq; 138 Ark. 477.

4. Appellants are concluded by the court's finding of facts. 114 Ark. 170; 126 Ark. 587; 90 Ark. 512; Id. 494; Id. 371; 91 Ark. 108; 92 Ark. 41; 100 Ark. 166.

MCCULLOCH, C. J. WOOD, J., disqualified. HART, J. dissenting.

OPINION

MCCULLOCH, C. J.

Cypress Creek Drainage District, composed of a large area embracing certain lands in Chicot, Desha and Drew counties, was created by special statute in the year 1911 for the purpose of constructing drains to relieve the lands in the district from accumulated waters. Theretofore the surface water from a considerable portion of the area included in this district had drained into the Mississippi River through Cypress Creek, and, in order to protect the lands from the Mississippi River overflow in times of high water, it was desired to close up the gap in the levee by damming up the levee across the mouth of Cypress Creek, and, in order to provide other means of draining this area, this district was created under a plan to carry the surplus waters in another direction; that is to say, to gather them up and carry them through a main drainage canal to the head of another stream, called Bayou Macon, through which the waters would be carried south, parallel with the Mississippi River, into Chicot County. Plans were formed for the construction of the improvement, and assessments of benefits to the lands in the district were made, but, in litigation which arose between the district and certain landowners, before further progress had been made in the affairs of the district, it was decided that the plans exceeded in scope the authority conferred by the statute creating the district. Cypress Creek Drainage District v. Wolfe, 109 Ark. 60, 158 S.W. 960. After that decision was rendered, further legislation was found necessary to give authority for the construction of the improvement which would be adequate to the demands of the situation, so the General Assembly of 1915 enacted a statute (Acts 1915, p. 297) amending the original statute creating this district by enlarging the powers with respect to the extent of the improvement to be constructed, and, among other things, it was provided in that statute (§ 5) "that the assessment of benefits heretofore made by said district, as the same appears upon the assessment books therefor, is just and equitable, and the same is hereby confirmed and declared to be the assessment of benefits of said district." The improvement was then constructed in accordance with the plans, which contemplated the construction of a large ditch, or canal, beginning in the northern portion of Desha County and running thence southerly about nineteen miles to the head of Bayou Macon, thus gathering up the surface waters and waters which drained through Cypress Creek and other streams and carrying them into the head of Bayou Macon, through which they flowed, as before stated, southward.

The plaintiffs (appellants) are owners of lands included in said district which abut on Bayou Macon, and they instituted separate actions at law (fifteen in number) against the district, to recover damages alleged to have been caused by the flooding of portions of their lands which abut on Bayou Macon. It was alleged in the complaint, in each of the cases, that, by the construction of the main canal and other ditches and drains, the defendant district had diverted the waters of other creeks and streams, which were natural watercourses and carried large volumes of water, from their usual and ordinary courses into Bayou Macon, causing that stream to "overflow its banks and spread out over large quantities of plaintiff's land, overflowing said land belonging to the plaintiff which was never overflowed before, and overflowing other lands belonging to plaintiff much quicker than was ever done before said ditch was constructed, and causing the same to remain inundated for a much longer period of time, resulting in permanent injury to the land of plaintiff, which injury became apparent after the construction of said ditch."

There are also allegations in each of the complaints, which are supported by the evidence, that the volume of water passing through Bayou Macon was greatly increased by reason of the construction of the drainage canal which emptied into the head of that stream, and that, prior to the construction of the canal, Bayou Macon carried only a small volume of water; that on each side of the bayou the banks were sloping, thus forming a low-lying area, or terrain, between the first bank or water's edge and the second bank, or, as expressed by some of the witnesses, the "ultimate bank," and the allegations as to overflowing of the lands of the abutting owners relate to portions of the land which thus lie between the first and second banks.

The evidence shows that, prior to the construction of the drainage canal in question, these lands were subject to cultivation, and were in fact cultivated from year to year, and rarely ever overflowed, but that, since the construction of the canal and the increased volume of water carried through the bayou, the lowlands between the two banks overflowed with such frequency as to prevent the cultivation of crops.

In each of the cases an answer was filed, tendering issues hereinafter discussed, and all of the cases were consolidated and tried together before the court sitting as a jury. After hearing the evidence, the court found the facts against the plaintiffs, and decided against them. Judgment was rendered accordingly, and appeals have been prosecuted to this court by all of the plaintiffs.

Counsel for the district present two grounds upon which liability now asserted should be denied and the judgments affirmed.

1. The anticipated benefits to the whole of the tracts of land owned by each of the plaintiffs, including the lands now claimed as those damaged by the overflow, were assessed in accordance with the original statute creating the district, and, as has already been referred to, there was a section of the statute enacted in 1915 (supra) ratifying and confirming those assessments. This constituted a legislative determination of the correctness and validity of those assessments, which will not be disturbed in a judicial review unless shown to be arbitrary and unfounded. Sudberry v. Graves, 83...