Tarleton Drainage District No. 15 v. American Investment Co.

• Decision Date: 20 June 1932
• Docket Number: 4-2676
• Citation: 52 S.W.2d 738,186 Ark. 20
• Parties: TARLETON DRAINAGE DISTRICT NO. 15 v. AMERICAN INVESTMENT COMPANY
• Court: Arkansas Supreme Court

52 S.W.2d 738

186 Ark. 20

TARLETON DRAINAGE DISTRICT NO. 15 v. AMERICAN INVESTMENT COMPANY

4-2676

Supreme Court of Arkansas

June 20, 1932

Appeal from Arkansas Chancery Court, Southern District; Harvey R Lucas, Chancellor; reversed.

Decree reversed, and cause remanded.

Ingram & Moher, for appellant.

G. W Botts, for appellee.

OPINION

BUTLER, J.

In 1917 the appellant district was organized under the provisions of § 3607 et seq. of Crawford & Moses' Digest for the purpose of constructing a drain in the Southern District of Arkansas County. After the original district was organized, the assessment of benefits levied and bonds sold the commissioners discovered that other lands would be benefited by the making of the improvement, and, under the provisions of § 3614 of the Digest, caused the benefits accruing to said lands to be assessed reporting the same to the court with a description of the lands and praying that the assessments be confirmed and the district extended so as to include the lands described.

The county court caused the notice required by said section to be published, but, on account of typographical errors in the notice furnished the printer, one tract of land was entirely omitted, and section 33, which was intended to be included, was described as section 3. The lands sought to be included and correctly described in the report of the commissioners filed with the court, were the west one-half of section 26, west one-half of southeast section 26, east one-half of section 27, all of section 33, northeast one-fourth of section 34, township 3, range 2 west, while the notice as shown by the proof of publication omitted the west one-half of section 26, and, instead of describing the whole section as section 33, described it as section 3. These errors appear not to have been noticed, for when the matter came on for hearing before the court the prayer of the petition was granted, the assessments confirmed and the boundaries of the district extended as prayed for in the report and the assessments extended against the lands therein described.

This order was made at the October term, 1919, of the county court. Afterward, on a petition filed by the commissioners, additional bonds of the said district were authorized in the sum of $ 3,000, and the revenues of the district as extended were pledged therefor. The annual installments of the assessment of benefits were extended on the tax books against the lands above described for the years 1919 to 1922, both inclusive, and paid by the landowners without protest. Inadvertently the clerk of the court omitted to extend the annual installments of the assessed benefits on the tax books for the years 1923 to 1927, both inclusive. The original commissioners had moved away or died, and it became necessary to appoint a new board in the latter part of 1927. This board caused an audit to be made, and the omission above mentioned was discovered. By appropriate proceeding the delinquent assessments were extended on the tax books, and, not having been paid, this suit was brought to recover the taxes delinquent.

It was the contention of the appellees (landowners) in the court below that:

(a) The notice published in an annexation proceeding which left out one tract and misdescribed another was jurisdictional and fatal to all subsequent proceedings.

(b) That appellant's right to subject the lands to the payment of said assessments was barred by the three year statute of limitation.

(c) That the failure of appellant to attach a certified list of the lands to its complaint was jurisdictional, and the court had no jurisdiction to hear and determine this cause.

The appellant contended in the court below and also in this court that the landowners were estopped from setting up the defense interposed in this suit because of their acquiescence in the order of the court extending the district and approving the assessments by having paid the installment of benefits for four years without protest.

The commissioners reported, and the court found, in 1919 that the contemplated improvement would benefit the lands of the appellees to the extent of the benefits assessed, and on a hearing of this case the preponderance of the evidence established the fact that these lands, because of their slashy and low and flat character, were valueless before the improvement was made, and that the drain constructed has made the lands fit for tillage. When the order was made including the lands of appellees in the district, the drain was extended so as to practically parallel the northeast quarter of section 34 and touch the south boundary of the west one-half of section 26, and a lateral drain was made to approximately the center of section 33. This appears from a plat filed and introduced in evidence.

By reason of the annual installments extended against the lands of appellees for the years 1919 and 1920 as early as January 1920, they had knowledge that the drains were being constructed so as to drain their property. An additional bond issue of $ 3,000 necessitated by the extension of the district was issued and sold, which became a burden not only upon the lands of the appellees, but upon all the lands of the district. It is clear therefore that they...