Wheeler & Silber v. Bogue Phalia Drainage Dist.

• Citation: 106 Miss. 619,64 So. 375
• Decision Date: 16 February 1914
• Docket Number: 17063
• Parties: WHEELER & SILBER v. BOGUE PHALIA DRAINAGE DISTRICT:
• Court: United States State Supreme Court of Mississippi

64 So. 375

106 Miss. 619

WHEELER & SILBER v. BOGUE PHALIA DRAINAGE DISTRICT:

No. 17063

Supreme Court of Mississippi

February 16, 1914

APPEAL from the chancery court of Washington county, HON. E. N THOMAS, Chancellor.

Drainage proceedings by the Bogue Phalia Drainage District. From a decree confirming an assessment by the drainage commission Wheeler and Silby appeal.

The facts are fully stated in the opinion of the court.

Affirmed.

Watson & Jayne, Dabney & Dabney and Sillers, Owen & Sillers attorneys for appellant.

Percy & Percy, attorneys for appellee.

OPINION

SMITH, C. J.

This is an appeal from a decree confirming an assessment made by the drainage commissioners of Washington county, acting for the Bogue Phalia Drainage District. Appellants' assignments of error will be set forth and decided seriatim.

First. "The assessment was void because there was no petition for the organization of a drainage district signed by the required number of landowners owning the required number of acres of land, and the court had no jurisdiction to make any orders in connection with the organization of the drainage district or approving assessment rolls because it never acquired jurisdiction." This assignment raises a question of fact which the court below was required, under section 1689 of the Code, to decide in order to determine its jurisdiction, and under this section of the Code the decree adjudicating that a petition contains the requisite number of signatures is final. It is unnecessary for us to decide whether an appeal will lie from a decree entered under section 1689, or whether the questions there adjudicated can be raised on appeal from the decree to be entered under section 1696, as amended by chapter 189 of the Laws of 1910, for in either event an appeal, under section 14, ch. 196, of the Laws of 1912, must be taken within ten days, and upon failure so to do the decree becomes final and conclusive. The question here presented, therefore, is not open for review upon an appeal taken from a decree confirming the assessment.

Second. "The assessment is void because the commissioners did not go upon the land and view the same, as the law requires, in order to make the assessment." This assignment is predicated upon the following provision of section 2, ch. 196, Laws of 1912: "The drainage commissioners shall go upon the lands of said district and examine the same and assess the benefits to be derived by each separate tract of land," etc. The commissioners did not go upon each acre of the land in this district, nor upon each tract, nor upon the separate land of each owner thereof, nor did the statute require them to do so. All that the statute does require is that the commissioners go upon the lands of the district "and make such an investigation as will enable them to form an intelligent judgment as to the benefits or damages which each tract will receive from the completed work." 14 Cyc. 1038. The wisdom of the legislature in not requiring the commissioners to view each acre of the land, or even each separate tract thereof, is made apparent when we have, as here, a district, twenty-three miles in length, from ten to fifteen miles in width, and containing approximately one hundred and fifty-three thousand acres of land, divided among a multitude of separate owners. These commissioners did go upon the lands of the district and seem to have made rather an extensive examination thereof. This was all there was any necessity for them to do, for they had before them the reports, maps, and plats, made by the engineers who had surveyed the district, showing the different watersheds and levels of the land. Moreover, appellants are not concerned with the method by which these commissioners made their assessment, but only with the correctness thereof. If no objection is made to an assessment no question as to the method by which it was made arises, and when an objection is made, the amount of the assessment is then determined, not by the report, though the commissioners may have literally followed the statute in making it, but upon the evidence then introduced before the court or chancellor in support of and in opposition to it. Laws of 1910, chapter 190, and sections 4 and 5 of chapter 196, Laws of 1912.

Third. "The commissioners did not assess the land according to the...