155 Ga. 419 | Ga. | 1923
Lead Opinion
(After stating the foregoing facts.)
The plaintiff asserts that the drainage court which established Sweet Water drainage district did not have jurisdiction of any lands which are not situated on Beaver Ruin Creek, Sweet Water Creek, and Jackson’s Creek, up to and including the first Monday in March, 1916; and that any order it may have granted affecting lands owned by him, located outside the district described and on another and larger stream, is absolutely void. The alleged invalidity of such order is based upon the grounds (1) that the drainage court had no jurisdiction of lands not situated upon the named creeks up to the first Monday in March, 1916; and (2) that it affected lands of plaintiff located outside of the district described and on another and larger stream. These grounds are without merit. It is true that the body of lands described in the petition, and sought to be embodied in the drainage district, did not embrace any lands of plaintiff, nor any lands located on Yellow River; but these facts do not render invalid and void the final judgment of the drainage court establishing the district, which, in its final shape and with its final boundaries, takes in the lands of the plaintiff and of others located on Yellow River. The district proposed and the district established may have different boundaries. Land in the proposed district may be left out of the district as it is finally created. Lands embraced in the petition for its creation may be eliminated, and other lands not designated therein may be put in the district in its final shape and form. The drainage act expressly declares that “The board of viewers shall proceed to examine the land described in said peti
So in this case the viewers reported that other lands not included in the proposed drainage district and including those of plaintiff and others located on Yellow Eiver would be benefited by the improvement proposed. They made a map of the drainage district thus enlarged, which showed these other lands, including that of the plaintiff, located on Yellow Eiver as embraced therein. Thus the drainage court acquired jurisdiction of these other lands. The court then fixed a day when this report of the viewers would be further heard and considered; and the notices of this hearing were duly published and given as required by the drainage act. Acts 1911, pp. 108, 111, 112; Park’s Code, §§ 439 (d), (e). No objections were filed by the plaintiff to this report, nor to the inclusion of his lands on Yellow Eiver in the district as finally established. He became thus bound by the judgment establishing this drainage district. Almand v. Board of Drainage Commissioners, 147 Ga. 533 (94 S. E. 1028). This judgment of the drainage court is not void for lack of jurisdiction over these added lands, nor from the fact that these lands are located on a larger and longer stream.
On Jan, 3, 1916, the drainage court passed an order which recited that plaintiff and others owning land in said drainage district had not signed the petition for its establishment, and which directed these parties to appear before said court on the first Monday in March, 1916, to answer the petitioners’ complaint, or
The plaintiff further attacks the judgment establishing this drainage district, upon the ground that the same was obtained by fraud. The drainage court passed an order calling upon certain parties to show cause on the first Monday in March, 1916, why they should not be included in this drainage district. It seems that summonses were served on them for this purpose. Among these parties were G. B. Wright, L. B. Greer, and George M. Brown. On the above date and before the court convened, parties interested in the creation of said district, including its proponents and opponents, held a meeting, George M. Brown and L. B. Greer attended this meeting. Plaintiff was not present. Greer was the spokeman for the owners of lands situated on Yellow Biver, in objecting to their lands being included in said district. The chairman of the meeting referred this matter to the attorney present and representing the petitioners for said district. This attorney announced that these owners of lands on Yellow Biver would not be included in the proposed district; and the chairman then announced that the Yellow Biver people were excused. On his return home, George M. Brown informed plaintiff that landowners on Yellow Biver. were not included in said district, and had been dismissed from the proceeding. Thereafter plaintiff was never notified that his lands on Yellow Biver had been included
The plaintiff further sets up that he signed the petition for the establishment of said district only after he was assured that he would not be affected thereby, and that his signing would be an accommodation to his copetitioners and would aid them in securing its establishment. These facts do not furnish sufficient reason why a court of equity will grant the plaintiff relief against
The plaintiff alleges that his lands on Yellow River have not been benefited by this improvement, but on .the contrary have been injured thereby. This was a matter of defense before the drainage court (Acts 1911, pp. 108, 112; Park’s Code, § 439 (f)), and of appeal from a judgment adverse to plaintiff (Acts 1911, pp. 108, 114; Park’s Code, § 439 (h)). It is too late to make this defense after judgment has been rendered by the drainage court establishing the district. Almand v. Board of Drainage Commissioners, supra.
The rulings in the other headnotes do not require elaboration.
So we reach the conclusion that the plaintiff did not make a case, under his pleading and proofs, which would authorize the court to grant the injunction prayed for by him; and that the court below erred in granting an interlocutory injunction.
Judgment reversed.
Concurrence Opinion
I concur in the judgment of reversal solely upon the ground that the plaintiff in error was one of the original petitioners for the creation of the drainage district.
