Stevens v. Shull
| Decision Date | 17 June 1929 |
| Docket Number | 29 |
| Citation | 19 S.W.2d 1018,179 Ark. 766 |
| Parties | STEVENS v. SHULL |
| Court | Arkansas Supreme Court |
Appeal from Miller Chancery Court; C. E. Johnson, Chancellor affirmed.
STATEMENT OF FACTS.
The appeals in both these cases are by landowners to reverse decrees of the chancery court sustaining the validity of a street improvement district and the assessment of benefits therein. They are companion cases to Stevens v Shull, 178 Ark. 269, 10 S.W.2d 511.
On September 6, 1928, certain landowners brought suit in equity against the commissioners and assessors of a street improvement district organized for the purpose of paving certain streets in the city of Texarkana, Arkansas. The complaint attacked the validity of the district on the ground that the plans were too indefinite and uncertain to be the basis for the levy of assessment of benefits against the lands in the district, and that the proposed improvement varied from the purposes for which the district was formed. The complaint also alleged that the cost of the improvement would exceed fifty per cent. of the assessed value of the real property in the district as prayed for in the petition asking for the formation of the district.
The chancery court made a specific finding that the plans for the improvement were proper, legal and valid, and that the estimate of the cost of the improvement did not exceed fifty per cent. of the assessed value of the property in the district according to the last county assessment. The court further found, however, that the assessment of benefits made by the board of assessors was arbitrary and void. A decree was entered in accordance with the findings of the chancery court, and the landowners have duly prosecuted an appeal to this court. Upon hearing of the appeal, the landowners abandoned all grounds of attack on the district except that the estimated cost of the improvement exceeded fifty per cent. of the assessed value of the real property in the district as prayed for by the landowners seeking to form the district.
Our statute makes it the duty of the council to determine whether the proposed improvement will exceed the percentage of the assessed value of the real property in the district, and the form and nature of the evidence the council is to act on is the last county assessment. The court held that the statute meant the assessment roll in existence at the time the council determined whether the estimated cost of the improvement was less or more than the value of the real property in the district as shown by the last county assessment in force when the cost of the improvement, as estimated, and the assessment of benefits were filed with the council. Therefore the decree of the chancery court was affirmed.
On the 21st day of November, 1928, certain landowners in the district filed what they termed an amended and substituted complaint in the chancery court against the board of improvement, attacking the validity of the district as being illegal for certain specified reasons, and also attacking the new assessment of benefits which had been made. On the 5th day of January, 1929, the chancery court entered of record a decree sustaining the validity of the district and approving the assessment of benefits as a proper and valid one. It was therefore decreed that the complaint in that case be dismissed for want of equity. That case is on appeal as No 1213, under the style of Stevens et al. v. Shull et al. The evidence relating to the assessment of benefits made by the board of assessors will be referred to under an appropriate heading in the opinion.
On the 25th day of February, 1929, certain landowners of the district brought another suit in equity against the board of commissioners, attacking the validity of the district and the assessment of benefits. Certain additional grounds of attack were alleged in the complaint, and they will be stated under appropriate headings in the opinion. Upon the hearing of the case, the validity of the district was again sustained and the assessment of benefits held to be valid. The decree was entered of record on the 6th day of April, 1929, and an appeal was duly prosecuted to this court; and the case number is 1173.
A plea of res judicata was filed by the defendants in each case, and on appeal the cases were consolidated for hearing. 1
Decree affirmed.
James D. Shaver and Frank S. Quinn, for appellant.
J M. Carter and B. E. Carter, for appellee.
OPINIONHART, C. J., (after stating the facts).
It will be noted from our statement of facts that in each of the above cases the validity of the paving district was attacked by landowners in the district. In the first case the court sustained the validity of the district, and upon appeal to this court no ground for reversal was insisted upon except that the estimated cost of the improvement exceeded fifty per cent. of the value of the real property in the district as prayed for by the landowners, within the meaning of the statute on the subject. Stevens v. Shull, 178 Ark. 269, 10 S.W.2d 511. Under the settled rules of this court this constituted an abandonment of other grounds stated in the complaint.
When the second case was filed, an assessment of benefits had been made in accordance with the holding of the chancery court in the first case, and this was held by the chancery court to be a proper and...
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