Sudberry v. Graves & Stephens

• Decision Date: 24 June 1907
• Citation: 103 S.W. 728
• Parties: SUDBERRY et al. v. GRAVES & STEPHENS et al.
• Court: Arkansas Supreme Court

103 S.W. 728

SUDBERRY et al. v. GRAVES & STEPHENS et al.

Supreme Court of Arkansas.

June 24, 1907.

Appeal from Mississippi Chancery Court; J. H. Edwards, Special Chancellor.

Suit by J. G. Sudberry and others against Graves & Stephens and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

D. F. Taylor, for appellants. J. T. Coston, for appellees.

McCULLOCH, J.

This is a suit in equity instituted by appellants to restrain the construction of a public ditch, and to cancel, as clouds upon their titles, the assessments levied upon their lands to pay the costs of construction of the ditch. At the July term, 1905, of the county court of Mississippi county, a petition was presented to said court for the establishment of a drainage district to construct a public ditch in accordance with the laws of the state along the route described in the petition. The court appointed viewers, in accordance with the statute, to survey the line for the proposed ditch, and to make report thereof to the court. The viewers made their report on a subsequent day, recommending the construction of the ditch along the route indicated in the report, and the court entered an order establishing the ditch and constituting the lands effected thereby or to be assessed therefor a drainage district, and directing the viewers to prepare and file at the next term of the court their report of plans for the construction of the ditch, the estimated costs thereof, the list of lands that would be damaged or benefited thereby, and the assessments upon each tract of land benefited by the improvement. The viewers made their final report in accordance with the direction of the court, and the same was confined by the court at a subsequent term thereof. It is alleged in the complaint that the orders of court establishing the drainage district and confirming the assessments reported by the viewers were made without the notices required by the statute having been given, and this is conceded to be true. The chancery court, upon final hearing of the cause, dismissed the complaint for want of equity, and the plaintiffs appealed.

The statute upon which the proceedings for the establishment of the drainage district and the construction of the public ditch are based provide that the county court of any county shall have power, upon petition of landowners, to establish drainage districts for the construction of ditches; that upon the filing of such petitions with bond viewers shall be appointed to make preliminary survey of the line of the proposed ditch, and to report whether the proposed improvement is necessary, practicable, and conducive to public health, convenience, etc.; that notice of the pendency of the proceedings and report of said viewers shall be given by publication in a newspaper published in the county; that, if the county court shall find from the report in favor of making the improvement, the lands which will be affected thereby or assessed therefor shall constitute a drainage district, which shall be designated by number, and the court shall enter an order directing the viewers to go upon the proposed line of the ditch, report plans for the construction thereof, and the cost thereof, and make report of all lands to be damaged or benefited thereby, with separate estimates of the amount of damage or benefit to each tract or lot, and apportion the cost of the improvement in proportion to the damages or benefits which will result; and that the court shall upon examination and hearing of "the report of the viewers and the appraisement by them made, and if it is in all things fair and just, according to benefits, shall approve and confirm the same." The statute also provides that notice of the time fixed for hearing the last report of the viewers shall be given to each owner of land affected by the proposed improvement by personal service of summons upon owners who are residents of the county, and by publication upon owners residing without the county or owners whose places or residence are not known. The assessments, when thus levied and confirmed, are placed upon the tax books to be collected, and, if not paid according to requirements of the statute, are enforced by action in the circuit court. Act April 23, 1903; Kirby's Dig. §§ 1414-1436.

Appellants show no grounds for restraining the construction of the ditch. It does not appear that their lands have been or will be encroached upon or damaged in the construction of the ditch; hence they have no right to interfere. The only ground for complaint, if any, is that an assessment alleged to be illegal has been levied upon their property. The provision of the statute requiring notice to be given to the landowners of the assessments sought to be levied is mandatory, and the failure to give the notice rendered the assessments void. The provision of the statute is plain. It requires that, "upon the filing of the report of the viewers, the county clerk shall immediately set the hearing of the same for the first day of the next regular term of the county court," that summons shall be issued and served, etc., that the court shall first determine whether the required notice has been given, and, when it is found that due notice has been given, the court shall then "examine the report of the viewers and the apportionment by them made, and if it is in all things fair and just" it shall be approved and confirmed. Kirby's Dig. §§ 1422, 1423. The giving of the notice is jurisdictional, and the court cannot proceed until that is done. The assessments, when approved by the county court upon notice to the landowners, become final and conclusive, and it would not do to say that they were valid without the notice having been given, as required by the statute.

Since the submission of the cause in this court the General Assembly passed an act which was approved by the Governor on May 22, 1907, validating the organization of this and other drainage districts and the assessments levied on lands to pay the cost of locating and constructing the ditches. Section 1 of the act provides that "all defects and irregularities occurring in the organization of said drainage districts Nos. 3, 4, 5 and 7 in said county be, and the same are hereby, cured and the assessments for the location and construction of said ditch are hereby ratified and confirmed." Section 2 provides...