86 Ark. 346 | Ark. | 1908
The case was tried on the complaint, answer and stipulation of counsel, which .will be found in the Reporter’s statement. It will be seen that the county court of Poinsett County, proceeding under sections' 1414, Kirby’s Digest 'et seq., created a drainage district for the construction of a ditch, the object of which was to drain certain lands in Poinsett County. The most feasible route to construct said ditch was to carry it into Crittenden County, where it found, its outlet. The-proceeding was under the act of 1903, before its amendment by the act of 1907, which act is found in Kirby’s Digest, § § 1414 to 1450. Section 1438 provides for proceeding., where a ditch is to be located in more than one county. This section requires that, the applications be made -to the county court of each county by petitions filed by those liable to be benefited. It is only those whose lands are liable to be benefited who can put in motion the machinery to establish a -dual drainage district. Under the agreed statement of facts here, it appears that there were no lands to be benefited in Crittenden County, and therefore it was impossible to proceed by the joint action of the two county courts, as provided in section 1438 et seq. See Albert v. Gilbert, 105 N. W. 19.
The question, therefore, narrows to whether, the district being created by the court of Poinsett County under § § 1414 to 1417, it can lawfully spend its money in Crittenden County to carry the ditch through it to its most feasible outlet? In Indiana there is a statute which authorizes the formation of drainage districts in either county where the proposed ditch runs through several counties, and the court treats the ditch as an entirety, and holds that it is competent to give either county jurisdiction of the proceeding, and that the appraisers appointed in one county may act in the other county. Shaw v. State, 97 Ind. 23; Crist v. State, 97 Ind. 389; Buchanan v. Rader, 97 Ind. 605; Updegraff v. Palmer, 107 Ind. 181.
The value of these cases, as there is no similar statute here, is in treating the ditch as an entirety, and that it may be subjected as an entirety to the jurisdiction of one county, although it extends into several. It may be questioned whether the viewers, under the act in question, could condemn the right of way and assess damages, as prescribed in section 1421 of Kirby’s Digest, in another county without statutory authority therefor. But that is not an'issue here, for the facts are that the right of way was acquired in Crittenden County without condemnation proceedings.
The question is simply, whether a part of a ditch can be lawfully constructed by a drainage district out of the county which created the district, where such district could not be formed pr proceed under section 1438, and such’extraterritorial ditch does not benefit the other county, but is a mere outlet for -the proper drainage of the lands benefited in the county where the district-is created.
The court can see no constitutional or statutory objection thereto. The question is not one of diverting taxes from one county and expending tlfem for the benefit of another county, such as Hundley v. Comm’rs, 67 Ill. 559. (Rector v. Board of Improvement, 50 Ark. 116, proceeds on similar principles.) Nor one of proper apportionment of taxes,.as was Crooks v. State, 26 N. E. 193. It is merely a question of carrying a ditch without the jurisdiction of the county which created it in order to obtain the most feasible drainage of the lands benefited. All the benefit of the ditch is to the lands in Poinsett County. It was to the advantage of the landowners of the district to have selected the most practical route to carry off the surplus water, and no good reason can be seen to compel the ditch to be dug on a more tortuous, difficult and expensive route in order to remain in Poinsett County throughout its course.’ The case is analogous to a sewer being constructed without the limits of a city. Take, for instance, the cities of Little Rock and Port Smith, lying on the Arkansas River, the proper outlet for- the sewers being many miles below them. To properly construct the sewers and their outlet, a considerable sum must necessarily be spent without the limits of the cities. Yet certainly no valid objection can be found to spending money raised by assessments on property within the cities without the cities in order to carry off the sewage of the cities.
Beasley, one of the plaintiffs, also raises a question as to his assessment; but he has had his day in court as to that. Dixon, the other plaintiff, malees allegations which, if “ true, might entitle him to damages against the district; but they would not entitle him to an injunction under his allegations and the agreed facts.
The judgment is affirmed.
