Southeast Arkansas Levee Dist. v. Turner, 91.

• Decision Date: 18 January 1932
• Docket Number: No. 91.,91.
• Citation: 45 S.W.2d 512
• Parties: SOUTHEAST ARKANSAS LEVEE DIST. et al. v. TURNER et al.
• Court: Arkansas Supreme Court

45 S.W.2d 512

SOUTHEAST ARKANSAS LEVEE DIST. et al. v. TURNER et al.

No. 91.

Supreme Court of Arkansas.

January 18, 1932.

Appeal from Desha Chancery Court; E. G. Hammock, Chancellor.

Suit by J. H. Turner and others against the Southeast Arkansas Levee District and others. From a decree in favor of plaintiffs, defendants appeal.

Reversed and remanded with directions.

Streett & Burnside, of Lake Village, for appellants.

Golden & Golden, of Dermott, and Poff & Smith, of McGehee, for appellees.

SMITH, J.

Appellees are landowners in the Southeast Arkansas levee district, hereinafter referred to as the district, and they brought this suit to enjoin the collection of an alleged excessive assessment against their property.

The district was created by Act 83, p. 367, of the Acts of the General Assembly of 1917, which was amended in 1919 (Sp. Acts, No. 93, p. 140), and further amended by Act No. 139, of the Acts of 1923 (Sp. Acts 1923, p. 261).

Section 8 of the original act of 1917 contained a legislative finding as to the extent of the betterments to be assessed against the property of the district, and pursuant to the authority of this section of the act the assessment against the lands was made on an acreage basis, whereas it was provided that real estate in said district "within the limits of any town" in the district should be taxed on the basis of the assessed value thereof "as the same appears assessed for State and county taxes."

This section 8, which had been amended by the act of 1919, No. 93, p. 145, § 3, was further amended by section 1 of Act No. 139, p. 261, of the Acts of 1923, supra, and as thus amended the portions thereof relevant to this case read as follows:

"It is hereby ascertained and declared that all real estate subject to overflow in said district (except the real estate included in the limits of any town or city in said district) is benefited annually to the extent of thirty cents (30c) per acre; and there is hereby levied and assessed against each and every acre of such real estate in the district, outside the limits of any town or city and subject to overflow, a tax of thirty cents (30c) per year.

"That each and all of the parcels of real estate subject to overflow included in the limits of any town or city in said levee district is benefited annually not less than thirty (30) mills on the dollar of the assessed value thereof, as the same is assessed for state and county taxes; and there is hereby levied and assessed against each and all of such parcels of real estate in said district within the limits of any city or town, annually, a tax of thirty (30) mills on the dollar of the assessed value thereof, as the same appears assessed for state and county taxes."

The question involved in this case is the one of fact whether the lands of appellees are "real estate included in the limits of any town or city in said district." Upon this issue of fact testimony was heard by the court, and this testimony was summarized by the court in a finding of fact made a part of the decree, which we accept as correct, and such facts as we find necessary to state are taken from this finding or from the stipulations of fact filed in the case.

The court found that the property in question was situated in Friedman & Willoughby additions Nos. 1, 2, 3, and 4 to the city of McGehee, but that no part of any of these additions were within the corporate limits of the city, and that the city of McGehee as a municipality exercises no control over these additions in the way of taxation or otherwise, and that the owners of these additions who reside therein have no vote in the government of the city of McGehee.

Additions 1, 2, and 4 are platted into five-acre tracts which were designated as lots, the plat of the survey thereof being duly recorded, and addition 3 is platted into lots and blocks of five acres to the lot and the survey and plat of this addition was also duly recorded. The lots in all these additions are contiguous and "but for a bayou and a road which traverses the property and streets as shown on the plats and maps, the four several platted Additions comprise one solid body of land," bounded by the outer lines of the several additions.

The plats of the additions 1 and 2 were filed for record in March, 1921, that of addition 3 on November 11, 1924; and of addition 4 on October 6, 1927; and the respective additions, after the plats thereof had been filed for record, were assessed for general taxes as town lots and as additions to the city of McGehee.

It appears from a map of the city of McGehee and the plats of the additions thereto and the stipulations of counsel concerning them that all the territory in said four additions is bounded by the outer lines of said additions, and that the northwest corner of the tract of land thus divided into additions is directly south of the southeast corner of the city of McGehee and separated therefrom only by the right of way of the Missouri Pacific Railroad. The map further shows that the Arkansas & Louisiana Highway, which is the main artery of travel and commerce into and through the city, is a concrete pavement 14 feet wide and is a continuation south and east of the main street of the city and passes between additions 1 and 2 and the lots of said two additions front thereon. A branch of this pavement running south to Dermott forms the street upon which certain lots of the Second addition and the western part of all the lots in the Fourth addition front, thus connecting up and giving easy access to all parts of the city of McGehee to the residents within said four additions.

Addition 1 is divided into 16 lots and contains 19 residences, a public garage and one store building; the Second addition contains 13 lots upon which there are 16 residences. There are 6 residences in the Third addition, and only 1 in the Fourth addition, but that addition contains only 4 lots.

There appears, therefore, to be 42 residences with the usual improvements on the four additions. Some of these residents have truck patches, orchards, gardens, or chicken farms, and most of these residents are engaged in pursuits related to and carried on in the city of McGehee. The residences are of a permanent and substantial character, and the occupants thereof are furnished with gas, water, electricity, and telephone service...