42 S.W.2d 996 | Ark. | 1931
STATEMENT OF FACTS.
Drainage District No. 7 of Poinsett County, Arkansas, and its directors filed an application against A. L. Hutchins, as chancellor of the Cross County Chancery Court to enjoin him from further exercise of jurisdiction in a case brought in said court by W. M. Smith and numerous other landowners of Cross County to enjoin Drainage District No. 7 of Poinsett County and the directors thereof from proceeding further with work contemplated by a change in the original plans and specifications provided by the act creating said drainage district.
According to the allegations of the complaint, Drainage District No. 7 of Poinsett County, Arkansas, was created by the Legislature of 1917. All the lands within the district are situated in Poinsett County, and the district was created for the purpose of reclaiming the lands therein by drainage ditches and levees. Under the provisions of the act, the commissioners of said district were unable to protect the land within its limits from excessive flood waters by constructing dams, drainage, waterways, parallel levees, and reservoirs. The particular location of the lands is shown by maps and profiles, but the issues raised by the application for the writ of prohibition do not make it necessary for a more particular description of them. The general purpose of the plan was to divert the water from the St. Francis River and its basin to the St. Francis Bay and its basin in Poinsett County. Both of these streams are well-defined water courses running through Poinsett and Cross counties. The commissioners of Drainage District No. 7 have already, by the erection of dams and levees, impounded the natural flow *523 of the waters of Little River, St. Francis River, and St. Francis Lake in Poinsett County. By the change in plans, said Drainage District No. 7 of Poinsett County also proposes to divert the flow of the water out of the present channel of the St. Francis River by constructing parallel levees and diverting the water from the St. Francis River basin and turning the same in a southwesterly direction into an entirely different watershed, known as the St. Francis Bay. This is not the natural outlet for said waters, and said Drainage District No. 7, by the proposed change, will divert the natural flow of the waters of the St. Francis River and its basin into the St. Francis Bay and its basin, whereby the lands of these plaintiffs situated in Cross County, Arkansas, will be flooded and permanently overflowed. The lands of the plaintiff are at this time free of flood waters and are in a high state of cultivation with valuable improvements thereon. Said Drainage District No. 7 of Poinsett County is now insolvent. The complaint is very voluminous, but we think we have set out such facts as will present the issues raised before us.
The chancellor of said chancery court, on the 27th day of August, 1931, at chambers, granted a temporary restraining order against said Drainage District No. 7, and the commissioners thereof, staying further proceedings on the part of said defendants, under an order of the county court of Poinsett County, made on August 25, 1931, authorizing the proposed changes in the drainage district, until the 8th day of September, 1931. The order contained a proviso that it should not prevent the defendants from receiving and filing bids from contractors for said drainage work, but that no further action should be taken. The order further provides that the application for a temporary restraining order would be heard by the chancellor at his office on September 8, 1931. A certified copy of the order was served in Poinsett County upon the directors of said drainage district. Drainage District No. 7 and the commissioners thereof refused to appear in the action in the Cross Chancery *524
Court on September 8, 1931, but appeared exclusively for the purpose of quashing the summons and service thereof upon it. The chancellor overruled the motion of the defendants to quash the service of summons upon the defendants. Drainage District No. 7 and the commissioners refused to appear further; and at the same time the chancellor made an order in vacation restraining said Drainage District No. 7 and the commissioners thereof from proceeding with the plans and specifications for the construction of drainage as authorized by the county court of Poinsett County on the 25th day of August, 1931, until the further orders of said chancery court.
(after stating the facts). The office of the writ of prohibition is to restrain the exercise of jurisdiction by an inferior court over a subject-matter where it has none or over parties where it can acquire none. Order of Railway Conductors of America v. Bandy,
This brings to our consideration the question whether the chancery court had jurisdiction to proceed further under the allegations of the complaint filed in the Cross Chancery Court by the landowners against Drainage District No. 7 of Poinsett County and the commissioners thereof. The whole question has been ably and exhaustively discussed by counsel on both sides in various forms and numerous authorities cited and reviewed with reference thereto. The conclusion which we have reached renders it unnecessary to consider and determine all the points raised by counsel; and in the determination of the question it will be our aim to confine our discussion to the issues necessarily raised by the plea to the jurisdiction of the Cross Chancery Court.
According to the allegations of the complaint, Drainage District No. 7 was created by the Legislature of 1917, and the lands within its boundaries were all situated in *525 Poinsett County. The dam, levees and other improvements, which it is alleged would divert the waters, were to be erected in Poinsett County, whereby the lands of the plaintiffs in Cross County would be flooded and permanently injured.
In a case note to People v. Selby Smelting Lead Co.,
We do not deem it necessary to review the authorities there cited or the numerous other authorities on the question cited by counsel in their respective briefs, for the reason that we believe that the question has been decided otherwise by this court in Cox v. Railway Company,
The statute involved in that case was 4994 of Mansfield's Digest, which is 1164 of Crawford Moses' Digest. The section reads as follows:
"1164. Where the subject of action is situated. Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof, is situated;
"First. For the recovery of real property, or of an estate or interest therein.
"Second. For the partition of real property.
"Third. For the sale of real property under a mortgage, lien or other incumbrance or charge.
"Fourth. For an injury to real property."
It was claimed by counsel for the landowner that the fourth subdivision of the section applies only to actions for the recovery of damages for trespass and other like injuries. The court said that it observed no distinction between proceedings at law and proceedings in equity in the rule prescribed in determining the venue in actions. It was further stated that a cause of action is local under the Code, because the statute has made it so.
It was further argued that, as the remedy by injunction acts only upon the person of the defendant, the venue is transitory; but the court held otherwise. It was expressly stated that if the suit was "for an injury to real property," under the fourth subdivision of the section, then the statute imperatively required it to be brought in Prairie County where the land was situated. The court said:
"The term `injury' is used in 4994 in a technical sense, and as meaning every wrong which in legal contemplation is an injury to real property. This embraces, not only injuries committed directly and forcibly for which an action of trespass was the appropriate remedy under the former practice, but such also as nuisances, the *527 obstruction of light or air, diverting water courses and other similar wrongs for which the remedy at common law was an action on the case. Of the latter class was permissive waste, which, being a failure to repair, was a mere nonfeasance; and yet it was classed as an injury to real property, and the venue was local. 1 Chitty, pp. 144, 268. That an act which is only threatened may be an injury to real property is shown by the statutory provisions affording a remedy in many cases to prevent it. Thus an injunction is granted `to restrain the commission or continuance of some act which could produce great or irreparable injury to the plaintiff. Mansf. Dig., 3730'."
Continuing, the court quoted with approval from Drinkhouse v. Spring Valley Water Company,
"The injury is the same, whether threatened or completed, and the privilege accorded to the plaintiff to prevent the injury by injunction ought not to be held to give him the right to have the trial in a county where the cause would not have been triable if he had waited the completion of the injury before seeking redress."
Counsel for the drainage district claim that this holding was inferentially at least modified by Hogge v. Drainage District No. 7,
The section of the Digest under consideration was an exact copy of a corresponding section of the Code of *528
Kentucky in force when our Code was adopted. Jones, McDowell Co. v. Fletcher,
In Smith v. Southern Railway Co.,
"While at common law and by 62, subsec. 4, Ky. Civ. Code Prac., an action for injury to real property is made local, and must therefore, as a general rule, be brought in the county in which the land is situated, and this rule is not to be arbitrarily enforced here the injury to the real estate results from a cause or act arising or occurring in a county or State other than the one in which it is situated, for in such a state of case the law seems to allow the owner of the real estate the right to elect whether he will sue in the county or State where the land lies, or in that in which the act causing the injury was committed.
It is true that this decision was rendered after we adopted the provisions of the Kentucky statute; and under the rule of adopted construction, the decision of the court of last resort of Kentucky would not be binding upon us, yet it would be persuasive as construing a similar statute. Such holding is in application of the rule, "when the matter in one county is depending upon the matter in another county, the plaintiff may choose in which county he shall bring his action." Barden v. Crocker, 10 Pick. (Mass.) 383. We cite these cases only as holding what might be consistently held by this court on a question of jurisdiction as to an injury sustained which results in one county from an act committed or cause originating in an adjoining county of the same state.
Again, it is insisted that the Cox case above cited is inferentially, at least, overruled or modified by North Arkansas Highway Improvement District No. 2 v. Home Telephone Co.,
We do not consider the case of Road Improvement District No. 4 v. Ball,
Hence it will be seen that, if the proposed acts of Drainage District No. 7 of Poinsett County were to be committed by a railroad corporation, by a private corporation, or by a private person, the venue of the action would be in Cross County where the land is situated and service would be had upon the defendant in Poinsett County, where the act sought to be enjoined was alleged to be committed. But it is insisted that this rule does not apply to a drainage district. We do not agree with counsel in this contention. It is true that drainage districts, levee districts, and road improvement districts *530
are created by statute, and have only such powers as are expressly or impliedly conferred upon them. They are quasi public corporations with power to sue and be sued with reference to the matters conferred upon them. Altheimer v. Board of Directors of Plum Bayou Levee District,
Section 2 of the original act of 1917, creating the district, expressly declares that a certain named board of directors and their successors shall constitute "a corporate body by the name of Drainage District No. 7 of Poinsett County, Arkansas, and by that name they may have a corporate seal, may perform all acts and have all powers and privileges to which a corporation is entitled under the provisions of this act and under the laws of the State of Arkansas and be subject to all liabilities provided for under the provisions of this act and under the laws of the State of Arkansas." Acts of 1917, vol. 1, *1053. *531
Thus it will be seen that by the very terms of the act creating the district it is subject to all liabilities provided for under the laws of the State of Arkansas. Hence the venue of actions against it is not changed by the terms of the act creating the district. The act expressly provides that the domicile of the corporation shall be in Poinsett County, and, in addition, that the corporation shall be subject to the liabilities of other corporations under the laws of the State. This would make it amenable to service of process just like other corporations and would make it subject to the venue of actions just like other corporations.
It has been suggested that, being governmental agencies, public improvement districts could not be sued in a county other than that in which it has its domicile by law. The argument is based upon public policy; and the principle involved is that, like counties and cities, if their officers are subject to suits in other counties, such suits must inevitably hinder and delay the successful conduct of the functions laid upon them. If the Legislature had deemed this to be the best public policy, it could have effectually accomplished that purpose by declaring that the drainage district could only be sued in any action in the county of its domicile. That would have made all actions against the corporation local. Instead of this, as we have already seen, the act creating the corporation locates its domicile in Poinsett County, just as private corporations are located by statute in the county where they have their principal office; but, in addition, the statute expressly provides that the corporation shall be subject to all liabilities provided for under the laws of the State. This would include provisions for venue in actions against the district as well as for service of summons upon the district and the commissioners thereof.
This view is upheld by the rule in the case of Road Improvement District No. 4 v. Ball,
It follows from what we have said that, under the allegations of the complaint, the work proposed to be done under the changed plans and specifications of the drainage district will flood the lands of the plaintiffs in Cross County and permanently injure them. Therefore, under the fourth subdivision of 1164 of the Digest, the venue is in Cross County, and service of process may be had upon the defendants in Poinsett County, and the application for the writ of prohibition must be denied.