Jacks Bayou Drainage District v. St. Louis, Iron Mountain & Southern Railway Co.

116 Ark. 30 | Ark. | 1914

Kirby, J.,

(after stating the facts). The proceedings for the establishment of this drainage district were had under the provisions of the Acts of the Legislature of 1909, as amended by Acts of 1911 (Acts 1909, p. 829,1911, p. 193).

Appellant’s first contention is that the circuit court erred in not dismissing the appeal from the county court for want of jurisdiction, claiming no affidavit had been made therefor and no order granting the appeal. The amended record shows, however, that an affidavit was made by appellant for appeal, stating it was. aggrieved by the order of the court overruling its remonstrance and exceptions to the report of the remonstrants assessing the 'benéfits .against it, etc., and the record also shows after the judgment establishing the district was made, and on the .same day that an appeal was prayed and granted. The contention is therefore without merit and the circuit court had jurisdiction of the cause.

It is next contended that the court erred in stating in the discussion with the .attorneys after overruling the motion of the drainage district to dismiss the appeal that plaintiff would have to show that a majority of residents and owners representing a majority of the acreage was in favor of the district, otherwise judgment would be in favor of the remonstrants and the finding of the county court reversed. It is insisted now that the trial court did not correctly understand the law relating to the establishment of drainage districts as shown by said announcement, and therefore erred in its findings of fact and judgment thereon. It calls attention to section 2 of the Acts of 1909 as .amended by the Acts of 1911 in support of this contention, which provides:

“If upon the hearing provided for in the foregoing section, the petition is presented to the county court, signed by a majority, either in numbers or in acreage, or in value, of the holders of real property within the proposed district, praying that the improvement be made, it shall be the duty of the county court to investigate, as provided in the preceding section, and to establish said district if it is of the opinion that the establishment thereof will be to the advantage of real property therein. ’ ’

(1-2) It is true under the provisions of this law that the county court had authority to investigate the conditions and to establish the district prayed for and create the improvement, if it was of opinion that the establishment thereof would have been to the advantage of the owners of real property therein. And while it is also true that the 'circuit court found that the improvement would be of great benefit to the owners of some of the real property within the district, and that some of the lands were in need of drainage, it found further that the cost of the proposed drainage district was not reasonable, that a great majority of the land owners of the district, both in number and amount of land owned, were opposed to it, and that the establishment of the district would be unjust to them and reversed the judgment of the county court. The matter was for trial anew in the circuit court, which, of. course, had the same power to establish the district as the county court had. This court said relative to the exercise of the power given to establish a drainage district when not petitioned for by the majority in numbers, ownership or acreage of the lands proposed to be included, in Burton v. Chicago Mill & Lbr. Co., 106 Ark. 304: ‘ ‘ This is certainly a very great power vested in the court, and when exercised in the face of the failure of petitioners to secure the signatures of a majority either in number or acreage,, or value, there should be no uncertainty about it being to the advantage of the land owners; and under such circumstances an uncertainty should be resolved in favor of the owners of the property to be assessed, upon whose shoulders the burden of the improvement will rest.” . And this statement is now reaffirmed.

(3) Without doubt great uncertainty existed about the establishment of the district being to the advantage of the land owners which the court properly resolved in favor of the owners of the property to be assessed and against the establishment of the district proposed.

There was much testimony^ showing that a great portion of the lands included in the district were composed of or underlayed with a whitish pipe clay and so unfertile as to be of little use for agricultural purposes. The evidence is amply sufficient to sustain the finding and judgment of the circuit court.

(4) Neither is there any merit in appellant’s contention that the court erred in announcing that the case was sufficiently developed, and in declining to hear more testimony. Much testimony had already been introduced disclosing fully the condition, and after the matter had been so thoroughly developed, it was within the discretion of the trial judge to decline to hear further testimony. It was a public matter being investigated, and after the great amount of testimony was heard that the record shows to have been introduced, other testimony would have necessarily been along the same lines, and the court was noti,required in the exercise of a sound discretion to continue the investigation until every land owner in the district could be heard.

We find no prejudicial error in the record, and the judgment is affirmed.