Stone v. Sewer Improvement District No. 1, City of Fayetteville

• Decision Date: 17 March 1913
• Citation: 155 S.W. 99,107 Ark. 405
• Parties: STONE v. SEWER IMPROVEMENT DISTRICT NO. 1, CITY OF FAYETTEVILLE
• Court: Arkansas Supreme Court

155 S.W. 99

107 Ark. 405

STONE v. SEWER IMPROVEMENT DISTRICT NO. 1, CITY OF FAYETTEVILLE

Supreme Court of Arkansas

March 17, 1913

Appeal from Washington Chancery Court; T. H. Humphreys, Chancellor affirmed.

STATEMENT BY THE COURT.

The appellants are the owners of land in improvement districts in the city of Fayetteville.

In the case of Board of Improvement v. Pollard, reported in 98 Ark at page 543, appellants contested the validity of the assessment made and levied upon these lands for the year 1909. That cause originated in the chancery court in an action instituted by the board of the improvement district to collect the assessment for that year. The decision of the chancery court was in favor of the appellants here, and the cause, on appeal to the Supreme Court, was reversed.

The contention of the owners was that the land was not benefited by the improvement. The contention of the district was that the owners, having failed to attack the assessments at the time and in the manner pointed out by the statute, were precluded from setting up their invalidity in the chancery court.

This court, in its opinion in the case, upon the issues and facts presented, found and declared as follows: "In the case at bar, while the chancellor found that the property of defendants was not benefited by the improvement, and his finding is sustained by a preponderance of the evidence nevertheless, there was substantial evidence on the part of the plaintiff showing that the property received additional benefits from improved sanitation, and that it could be connected with the sewer system so as to successfully drain the sewage from this property, and thereby receive benefits. Under such circumstances, the assessment made can not be invalidated, or set aside in this proceeding." And the court remanded the case with directions to enter a decree in favor of the plaintiffs (appellees here).

The present proceedings were instituted by the appellants in a bill of review filed in the chancery court with the permission of the chancellor to review the cause in which the decree of the chancellor was reversed, and decree ordered to be entered by the Supreme Court, supra, and to have the collection of the assessment, under the mandate of the Supreme Court, enjoined.

The complaint set up the facts showing the creation of the improvement districts and the former proceedings in the chancery court and the Supreme Court, making those proceedings exhibits, and alleged, among other things, the following: "That the defendants, Sewer Improvement District No. 1 and Water Improvement District No. 1 aforesaid, are so interrelated that full and complete relief can not be given these plaintiffs without joinder herein of both said boards of improvement, and for the further reason that there can be no sewer benefits unless there be a full and sufficient water supply of such volume and power as to flush and drain said sewer pipes. That the sewer system has no source of revenue, and for the cost of construction and maintaining a sewer system it must draw upon the funds and revenues of said water system.

"These plaintiffs further allege that at no time has there been made any provision to supply these plaintiffs with an adequate, or indeed, any water supply; nor is any water supply or system intended to be furnished these plaintiffs. That no estimated cost of constructing a water supply system to afford these plaintiffs any water benefits have been made, and none is intended to be made. These plaintiffs allege that the erroneous cost of supplying these plaintiffs with a water supply or constructing a system which would place water within reasonable reach of these plaintiffs, was not included within the original cost of such system, as hereinbefore alleged.

"These plaintiffs further allege that whatever plans and estimates of cost for either sewer or water service, or improvements have heretofore been made; that since the trial of this cause originally in this court, being the case of Sewer Improvement District No. 1 v. A. B. Stone, et al., have been now wholly and fully abandoned for a total lack of funds to make any extensions, and for the further reason that the said defendants herein are now fully convinced that the same is wholly impracticable, and that the limited territory, both as a taxing territory and the scanty population to be served can in no way justify the great expenditure of the funds of the district in constructing expensive sewer pumping plants which will be required, to furnish plaintiffs any sewer benefits whatever.

"These plaintiffs further allege that the pretended survey made by one Knoch in said former suit by which it was pretended that a new sewer system might be constructed along said line, and afford plaintiffs benefits, has been wholly abandoned; and the intention to build along said line to furnish or afford these plaintiffs sewer service and benefits, has also been wholly abandoned, which fact of abandonment will be supported by the testimony of each member of said two boards of improvement, as well as by other conclusive testimony of record. That said witnesses will also testify that there has been a complete abandonment of said projected extension, as to the premises of these plaintiffs, and that no such, or any similar or substituted line of sewer extension, is either contemplated in the future. And in view of the great cost, the project of connecting up plaintiffs' premises with said sewer line as originally established, and which may in the future be established, has been wholly abandoned. That these plaintiffs will also prove beyond any doubt, by said witnesses, that no benefits whatever have been or can be given in the future to these plaintiffs by the said sewer system, as originally planned, and that the same will not be extended to the property of these plaintiffs in the future. They will also prove by these witnesses, that the original assessment was inadvertently made, and that these defendants now desire that the same shall be corrected, and that further payments thereon be made the subject between these parties of compromise, readjustment and probable total remission.

"That the right of these plaintiffs will suffer irreparable injury if the mandate aforesaid is enforced, or the said wrongful and inadvertent assessment allowed to stand against the property of these plaintiffs upon which it is now a lien, to the extent of nearly $ 1,400, and by which the title to their property is unjustly and unlawfully clouded. These plaintiffs further allege that the intention to abandon, and the fact of the abandonment itself, alleged herein, were not known nor could have been known to these plaintiffs by the use of any diligence until long after the trial of the original cause." The complaint concludes with a prayer for relief as above indicated.

The appellees (defendants below) moved the court to strike out the complaint, for the following reasons: "First, because said complaint does not state any facts which will authorize this court to review the decision and judgment prayed for in this complaint. Second, because this court has no jurisdiction to grant the relief prayed for by said plaintiffs. Third, because the evidence of the witnesses set forth in the complaint is not newly discovered evidence, but is cumulative and could have been offered by plaintiffs in the original trial. Fourth, because said evidence is incompetent, irrelevant, and wholly inadmissible."

The motion was sustained, the appellants (plaintiffs below) declined to plead further, and the court dismissed the complaint, and appellants duly prosecute this appeal.

Affirmed.

Appellants pro se.

1. A bill of review on account of newly discovered evidence is in the nature of an original suit in equity, leave to file which must come from the court which tried the case below, and the granting of such leave is the exercise of a judicial discretion which will not be disturbed on appeal, unless a clear abuse of discretion is shown. Such abuse will never be presumed. 33 Ark. 161; 154 Ill. 577, 39 N.E. 623; 8 B. Mon. 340; Story's Eq. Pl., § 408; 34 C. C. A. 240; 92 F. 115; 3 Tenn.Ch. 211; 19 Vt. 219; 36 Ark. 532; 47 Ark. 17; 183 Ill. 132, 55 N.E. 673; 144 Ill.App. 344; 13 W.Va. 256; 25 N.J.Eq. 145; 78 Miss. 41; 25 Ark. Law Rep. 241; 129 S.W. 1079; 102 Md. 456; 84 Ark. 203. It can be attacked and its sufficiency tested only by the established rules of equity pleading. 2 Daniels Ch. Pr. & Pl. 1579; Story's Eq. Pl., § 418; 3 Enc. Pl. & Pr. 574; 36 Ark. 532; 31 Ark. 616; 33 Ark. 661; 6 Enc. Pl. & Pr. 297-298.

2. The bill will not be condemned on demurrer for mere indefiniteness or uncertainty. All its allegations must be construed liberally with a view to substantial justice between the parties. 54 Ark. 449; 31 Ark. 657; 24 Ark. 73; 52 Ark. 378; 24 Ark. 402; 17 Ark. 113; 70 L. R. A. 326; 6 Enc. Pl. & Pr. 346.

3. The evidence alleged in the bill of review would have been competent in the original case as tending directly to prove lack of benefits, in that it would have proved that the supplemental sewer line through appellants' land had been abandoned. Abandonment includes both the intention to abandon and the external fact by which such intention is carried into effect, and, since the intention is the essence of the abandonment, the facts in each particular case are for the court and jury. 94 N.W. 857; 120 Ia. 410; 30 A. 842; 165 Pa. 325; 14 So. 379; 102 Ala. 224; 50 P. 318; 90 Ia. 646.

4. The newly discovered evidence alleged is not cumulative. Evidence is not cumulative when it tends to prove a distinct fact not testified to at the former trial. Here the issue of abandonment was not before the court at all. 36 Ark. 540; 114 Ga. 233; 43 Ia. 175; 148 Mo. 478; 43...