Tucker Lake Reclamation District v. Winfrey

• Decision Date: 24 September 1923
• Docket Number: 129
• Citation: 254 S.W. 460,160 Ark. 205
• Parties: TUCKER LAKE RECLAMATION DISTRICT v. WINFREY
• Court: Arkansas Supreme Court

254 S.W. 460

160 Ark. 205

TUCKER LAKE RECLAMATION DISTRICT v. WINFREY

No. 129

Supreme Court of Arkansas

September 24, 1923

Appeal from Jefferson Circuit Court, W. B. Sorrels, Judge; affirmed.

Judgment affirmed.

Mike Danaher and Palmer Danaher, for appellant.

Crawford & Hooker, for appellees.

This appeal is from the findings of fact made by the trial court sitting as a jury. Such findings are conclusive on appeal. 90 Ark. 512; 91 Ark. 108; 92 Ark. 41; 90 Ark. 494; Id. 375; Id. 372; 100 Ark. 166; 86 Ark. 504; 80 Ark. 57; 82 Ark. 188; 250 S.W. 33; 84 Ark. 626; 97 Ark. 374; 80 Ark 249; 96 Ark. 606; 82 Ark. 260; 86 Ark. 259; 126 Ark. 219; Id. 318; Id. 587; 98 Ark. 367; 114 Ark 170; 107 Ark. 281; 125 Ark. 136.

OPINION

SMITH, J.

Appellant is an improvement district formed under the general statutes of the State under the orders and judgment of the county court of Jefferson County. After the assessment of the benefits accruing to the lands of the district was made, appellees, who are owners of land lying within the district, filed a protest against their assessments. The county court heard the protests and overruled them, and entered an order confirming the assessments, and from this order appellees appealed to the circuit court.

The hearing in the circuit court was de novo, as required by the statute, and at the conclusion thereof the court entered an order reducing the assessments, and this appeal is from that judgment.

During the hearing before the circuit judge, that official made the following observation: "I am satisfied, from what proof I have heard, that this project ought to be put there, and I think it should go through, unless it amounts to practically confiscating a man's land; that is a different proposition. I want to hear proof on that." It is now insisted that this remark of the judge showed that his finding was based upon an erroneous basis, in that his finding was not controlled by a consideration of the betterments to the lands or the enhanced value to result from the improvement, but was based upon a consideration of the ability of the owners to pay the tax from rents and profits derived from the land.

This would, of course, be an improper basis upon which to assess betterments for a proposed improvement district of any character. To adopt that basis would prevent the assessment of benefits against undeveloped and non-income producing lands. The thing to be considered is the enhanced value which it is anticipated will result from the proposed improvement. But the law of the subject has been defined in many cases, and need not be reviewed here. We think, however, that the remarks of the court and the record in its entirety do not support the contention of appellant that the court considered the income-producing quality of the land and the ability of the owner to pay, rather than the enhanced value of the lands which would result from the construction of the proposed improvement.

The court found the fact to be that the lands would be greatly benefited by the proposed improvement; but the court also found that the assessed benefits were excessive, and that the lands would not be benefited to the extent of the assessments made, and, upon this finding, reduced the assessments.

We have carefully reviewed the conflicting testimony in this case, and are constrained to say that the preponderance of the testimony appears to establish the fact that the betterments assessed by the commissioners and approved by the county court are not excessive; but this testimony is by no means undisputed, and we are unable to say that the testimony is not legally sufficient to support the findings of the court below.

This is an appeal from a trial at law, and involves a finding of fact made by a circuit court, and in such case it is our duty to give to the testimony tending to support that finding its highest probative value.

The case of Gibson v. Lawrence County, 155 Ark 319, 244 S.W. 341, involved the assessment of certain lands for general taxation purposes, and in affirming the findings of the circuit court we there said: "The sole question which concerns us is, whether or not there is legally sufficient...