ARK.] HOWELL V. WHITE RIVER LEVEE DISTRICT. 381 HOWELL V. WHITE RIVER LEVEE DISTRICT. Opinion delivered June 13, 1927. 1. LEVEES—RELIEF FROM ASSESSMENTS. — Uncler Sp. Acts 1921, p. 1133, providing that persons aggrieved by levee assessments shall have 20 days in which to take action, held that, on failure so to act, the assessments are incontestable as to them. 2. LEVEES—VALIDIT Y OF ASSESSMENT.—The fact that an improvement under a special act of 1920 which authorized a levee district to straighten the channel of a river and construct drains and levees necessary to protect lands from overflows had not been completed was not ground for setting aside the assessments for which taxes had become delinquent where the assessment made was based on the asSumption that the improvement would be completed.
382 HOVVELt V. WHITE RIVER LEVEE DISTRICT. [174 LEVEES—REVIEW OF ASSESSMENTS.—In reviewing an assessment .of benefits, the .Supreme Court must . consider the fact that the assessors are more familiar with conditions to . be considered in making their assessments than'the reviewing court can be. 4. APPEAL AND ERROR — CONCLUSIVENESS OF CHANCELLOR'S FINDING.— Where the reviewing court cannot say, under the evidence, that the . a ' ssessments olbenefits in a drainage district Were erroneous, .the decree Of the chanCery court sustaining' the assessments must . be affirmed.. Appeal riom Woodruff Chancery Court, SOuthern Dikrict ; A: L. . H . utchins, Chancellor ; affirmed. Roy' D. c a l mpbell, for appellant. Ross kathis, for . appellee. SMITH, J. Appellants own a large body of land in the. White River : Levee District, and seek by this suit to restrain the officers of the .district from prosecutiug a suit to enforce payment of certain delinquent , taxes assessed against , their lands. They prayed. this relief upon the ground that the lands had received no benefit and could receive none from the proposed improvement. In . support of the allegations of the complaint; appellants offered testimony to the effect that their lands ‘were situated between White and Cache Rivers, and were overflowed from the waters of both streams, and that the lands would be overflowed by the Cache River even though the lands were protected fromthe overflow of the White River by the levee'along that stream. - Act No. 97i . of the 1911 session of the General Assembly (Special and Private Acts 1911, page 215) created and defined the w boundaries 'of the' White RiV . O'f; ,Leee District, and, pursuant to the authority• of this act, better-ments were .assessed to pay the cost of the proposed levee.: It appears that betterments •were _assessed against the lands of appellants, but they paid 'no . taxes, and rio taxes appear' to have beeh extended Agaihst their lands . until 190; when the taxes for that year ..were assessed against the, lands of apPellants; The3i thereupon brought suit to enjoin -the . collection of the taxes, and alleged that the lands, by reason of their- location,
.AAK.] . HOWELL V. ,WHITE ;RIVER LEVEE . PISTRIQT. .383 had not l and: could not, receive, any benefits from -levee-. ing :White • River. The .depositions . of several witaesses . .were taken . in, support .of the. : allegations . of, the complaint. . This . , testimony. ,was to the effect that a,•1.arge part of appellants 'lands were low and swantpy..and,.unfit ..for cultiyation as. :the. resnit of the .annual: overflows of both the White and Cache Rivers,- and that the Jeveeing of -the, White, River , did not prevent •the overflow :of :the lands by the Cache River, although the depth and: dura-,tion o the : overflow , was . .lessened by protection from the ."\khite River. , • The snit to enjoin the collection of; the4919:tax does • I-tot, appear to • have .. been • prosecuted to; a final- .decree, And whileit was, pending there. was 'passed,.at the extraor-. .dinary session of 1920, ,an act:entitled An ; act . ..in • aid of the White -River Levee District.". This: is cine. of ,the ;.napubli s , hed acts..., , • This , act of. 1920 !authorized, the . board..of directors of, • the : : White . , River Levee: . District to , straighten the chaanel of the Cache : River and , to.ponstruet,such drains, ditches „and , leyees:.":4s , :will be: necessary to...protect the lands of the district from overflows from the . waters of Cache River," and, to accomplish that . the 'White .River' . Leyee Ditrict . was anthorized to,. isSue : interest-bearing— bonds . . in ,a siip not:exceeding $400,000.. .-. At the ensuing regular 1921 sesston of the General Assembly an act was passed which provided for a reas-, sessment of the, benefits, in the White River Levee District, and 1:of , the act, recited that the existing assessments.were inequitable. Special .Acts . 1921, page 1133._ The , act of 1921 .provided :that the total amount zof benefits theretofore ,assessed should not be reduced,, but •that the 'existing-assessments should be equalized, and, to - 'that ..end, assessors were narned• in the, act,::who were directed `;` to make a reassessinent of the benefits that will accrue ,and that have accrued," and to give notice •: of the assessment in the Manner provided by the 'act creating the district. Section 5, of the act creating the
• 384 HOWELL v WHITE RIVER LEVEE DISTRICT. - [174 district required the president of the board of directors to give notice of the original assessment and of the time and rammer in which protests might be made. It was there provided that any person, firm, company or corporation aggrieved by said assessment shall have twenty days in which to take action against the same, if such they have, and their failure so to do shall render said assessment incontestable as to them, either at law or in equity. The reassessment was made, and appears to be the assessment here attacked, but it does not clearly appear that this attack was brought within the time and manner provided by the original and amendatory acts above referred to, and, unless this was done, the assessments became final and binding. House v. Road Imp. Dist. No. 2, 158 Ark. 330, 251 S. W. 12. We think, however, that the action of the court below in dismissing the complaint of appellants as being without equity should be affirmed, even though the action is not barred by the failure of appellants to institute proceedings within the time limited by law to attack their assessments. The affirmative showing is made that the improvement authorized by the special act of 1920 was never completed. The straightening and deepening of the channel of Cache River was begun, but the work stopped about seven or eight miles from appellant's lands. This appears to have been due to the failure of the bank in which the funds of the district were deposited, and appellants insist that, inasmuch as the proposed improvement authorized by the act of 1920 has not been completed, and may not be completed, the proposed improvement cannot be taken into account in determining whether the lands will be benefited. The answer to this contention is that . the assessment of benefits was . based upon the assumption that the improvement authorized by the act of 1920 would be completed, and the assessment cannot be defeated because this was not done. Salmon v.. Board
'ARK.] HOWELL v . WHITE. RIVER' LEVEE . DISTRICT. 385 of Directors,- ete.,100 , Ark. 366; 140 S: W. 585 ; Road IMp. Dist. No..3 v. Norris, 153 Ark: . 635,. 241 S. W. 389; Hunt v: Road Imp.Dist. No.,12, 168 Ark. 266, , 270 S. W. 961.. It is stipulated that the assessors, in making'Abe last. assessment, 'reassessed the. benefits . " in accordance with. ,the; . law appointing them : , and in strict ,. conf orrnity thereto these assessors. made, a reassessment of .all.lands of the district, and, to the best of their ability,' rendered a , fair . and impartial . assessment upon all lands in , said district." It appears afso that, the present assessment of appellants' ° lands ; was : greatly rethiced,, some of the assessments being not more . than a third, of the original. It was also . stipulated by counsel. that the depositions takenin the first-suit brought by.appellants -to , .enjoin the collection of the taxes .against appellants' lands, might be read in.ey idence in the ,present case, . and it .is upon these depositions. that appellants 'now, ask relief, but it will be. remembered that these,:witnesses did not take into account . the improvement . of Cache River, •as . that improvement , was not then authorized. • . .The 'testimony does . appear to establish . the faet that; unless Ca s che -River is iMproVed, that stream would overflow appellánts' lands; even though White River were leveed, .but this, testithony also -shows that the extent and duration of the overflow Would be lessened by . levee-ing White River, so that -smile benefit would be conferred even though complete relief wAs not afforded. In 'the case of Memphis Land (6 Timber Co. v. St. Francis Levee H District;*64. Ark. 258; '42 S. W. 763, the landOwner resisted the c011ebtion ' of the, tax imposed on its land upon the ground that the levee would riot affOrd protection from surface water, and testimony Was Offered that certain lands would not.be benefited by the levee for the reason that they are wet from winter and.spring 'rains frail six,.to nine . months in the. year; And, that certain other lands would, not be benefited becauSe they . are above: oVerflow.. • . Mr. Justice , BATTLE, speaking .for the coprt,. ! said , that this proof, , was, not ° sufficient to show.
386 HOWELL V. WHITE RIVER LEVEE DISTRICT. [174 that such lands. wonid not be benefited by the levee, as the owner might be enabled . to 'reclaim theni by means: of drainage; and the relief prayed. was . denied. the landowner. The assessors, no doubt, took all the facts here stated into account in making the last assessinent, including the possible effect of the improvement *authorized by the act of 1920. In reviewing assessments in cases of this kind we must, of necessity, take into account the fact that the assessors are more familiar with the conditions -to be considered in making up their assessments than we can be.• In the ca ge of Rogers v. Arkansas-Louisiana Highway Nip. Dist., 139 Ark. 322, 213 S. W. 749, we said : "We announced the rule to be followed by this cmirt in the decision . of • questions of this character in the case of Mo. Pac. Ry. Co. v. Monroe County Road Imp. Dist., 137 Ark. 568, 209 S. W. 728, where it was said : 'An estimate of benefits resulting from a local improvement to a given piece of property is largely a matter of opinion, and generally there is a wide difference of opinion on such questions. Under those circumstances :a great amount of .deference is due to the judgment of the board of assessors, who are constituted aS a special tribunal for the purpose of determining that question, and courts reviewing the proceedings of the assdssors should not substitute the judgment of the judges for that of the assessors, unless the evidence clearly shows that the ns g essments are erroneous: , ". • See also Wilkinson v. St: Francis County Road Imp'. Dist. No. 1, 141 Ark. 164, 216 S. W. 304. There is no contention tbat the assessors acted arbitrarily in making the assessment. • On the Contrary it is stipulated that, to the best of their ability, they made d fair and impartial assessment upon all the lands in the district, and their work cannot be set aside by us ,because the proposed improvement of Cache River, which they were required to take into account, was not completed.
guc:] How,g14.,;/). WHITE 11IVER LEVEE acsrnrcr: 387 .,. As we ,are; unable to say. that-the; evidence clearly shows .that the assessments are erroneous,.the decree of the court below must be affirmed, and itis:so. ordered: D MEI3A . FEI;;j:." i ISSEIsTtING' : 6annOt hgree With'the 'opinion 'o'f the Majority' in this CaSe for the' realSbn that I think the d6cisioir the; Constitution of the United' States and alsO -the ConstitutiOn of the. State of Arkansas. The 'testimony,' as I vie* it, shows cOnelnsively that the lands of appellants 4re not only not benefited, bUt, will not be'benefitell by the' intprOVenient. ,'Accordhig to my 'Viel").!- of this case,,it'is a taking of, appellant's PrOP: erty)rithout any coniPensatidn'WhateVer. I think that the . festimdriy 'ConcluSiVeiy 'shows , this; and:the decisiOn Of ihe dant therefore'violates the prOvisions of the Constitution of the United States,. above . •entioned; and Niolates , the' PrOviSidni. 'of .the'ConStitntion of Ailahsas. • Section 22 of 'article 2 lof the COn s ' titution of the State of Arkansas provides : . ; `,The right :of . property ,is 'before. • . and . ldgher. than any ,constituponat. sanction, , and .private property,.shall not be rt4en,Appropri*O. or darnaged, for, public .use without inst - , said in ,the majority . opinion • affirmative'showing is made that the improvement anthorized . by the special act, of 1920 was never completed: The'Straightening and ' deepening of the Channel of . Cache 'River was.begun, but the work stopped about' 7. or 8 miles, from' appellant's lands:- This appears to have been due to the failure of the bank in which the funds of . the , -district were deposited; and appellants insist that, inasmuch as —the prOpoSed improvement authoried by, the act-,of 1920; has not been completed, and . inay never be coMpleted, the proPosed improvement cannOt be taken into account' in deterthining whether the land§ will. be benefited. The answer to this cOntention is that the asSessment of ' benefits WaS based upon - the ., assumption that . the
388 HOWELL V WHITE RIVER LEVEE DIMICT. [174 ithprovement authorized by.the act of 1920 would be completed, and the . .assessment cannot be defeated because this Was not . done. - • • -, In other words, as I _understand the majority opinion, you can take ; one's property without . any compensation whatever, if you base the assessment, upon - the assumption that an improvement will be made, and on the . further assumption that it will benefit your lands. Such is not the meaning of the Constitution as I under- stand it. . . . . . . . The following cases are then cited in support of the declarations above set out by the majority opinion: Solo- mon v. Board of Directors,.etc., 100 Ark. 336, 140 S. W.. 585 ;• Road Imp. Dist. No. 3 v. Morris, 153 Ark. -635, 241 S. W. 389; Hunt li. Road Imp.- Dist. No. 12, 168. Ark. 266, 270 S. W. 961. . . .. . , .. L .I do not understand the above cases support the doc-• trine announced . by the majority in this case. The . first i case cited is where 'the parties did not contend that . they e would not be benefited by the improvement, hut the contention there made • was that the appellant's land had / not been benefited by that portion of the iMProvement already mak, and that they Could dot requiFe.taxes to be paid by one until the improvement had been sb far completed that his: lands would be benefited. ' .It• was not 1 contended in that case that the improvement wOUld not benefit his lands,• and. it- . was not contended that the improvement had been abandoned. The -. onlY • contention was, as I understand it, that the imProvement had (i not gone far enough at that time to benefit appellant's land. ( The court said -that the scheme contemplated by the l creation of the district was for the construction of the levee as a whole, and the benefits were to accrue from the ? consummation of the plan. And the court further held, in effect, that to fail or refuse_ to coned taxes until the entire improvement was completed and everybodY's lands in the district benefited; would 'frustrate - the Whole scheme, because, under a view like that, the improveMent 'i t
ARK.] HOWELL V. WHITE RIVER LEVEE DISTRICT. 389 .Or construction work could not be begun until all •the funds were raised • for the purpoSe. And, according to appellant's contention in .that case, you could not raise •any funds until the work had been done. The next case referred to by the court to sustain .the proposition, was a road district created under the Alexander Road Law, where there was • authority • to reaSsess, 'and it does not seem to the that it supports the decision in this case. • And in the next case referred to by the opinion, I do not think that the same question was decided that is involved in this case. In fact, I do not know of any • decision* of any court that has . held, 'where the proof shows that no benefits have or will accrue to one's lands, that it can be assessed at all; This court has repeatedlY •held that the only theory
upon 'which assessments can be collected is the theory
that the benefits accruing from the improvement is equal to or greater than the amount of tax. I know of no decision of this court that holds to the eontrary. And if any decision was to the 'contrary, it would certainly violate the provisions, not only of the Constitution of the United States; but of the Constitution of the State of Arkansas. If 'that theory is true; and it will-not be disputed, then how.can the fact that the bank failed, and money belonging to the district was lost, justify an assessment against
appellant's lands unless they are benefited in some way? In a case in the Federal court it was contended that something over 10,000 acres of land would receive ILO benefits, and the district judge .stated a.s follows : "So the question we Are called upon to determine is whether tbe facts in this ease show that there is no benefit, either direct or indirect, to the land. in controversy, or, if
indirect, that it is so remote that it is purely speculative." Nnmerous authorities are cited, and the Court of
Appeals, after quoting the above statement, continued: "And thereupon the court held that the facts do not
overcome the presumption arising from the assessments that the lands would receive benefits. The case made by
HOWELL v WHITE RTVER LEVEE DISTRIdT. [174 the 15Iaintiffs -on the:, facts Was not that all the 10,320 acres would not: receive benefits, but. that parts of the tract would not :receive benefits, sothe being at too high an altitude and soine too low to , be' affected • by the iMprovement ; and:we think that:claim was clearly established; and that the ooutt fell into error When it denied -plaintiffs relief .* •. * It is contended that, when the system: is put 'through, it will permit the drainage of the lower lands on the east side of the lake into' the lake. We do. not see how that may be so, inasmuch as the proposed plain will not reduce the waters in: the lake, to a lower minimum level than they now +mid, nth- how the swamp lands in the tract could receive any benefit if Pro-•ected -from overflow by the system., * * : On• the whole, we are convinced from this record that ranch Of the land lies at such elevation that the ,system when completed will be of no benefit to it." Kansas CitY Life Ins. Co. v.- ;Chicot County Drainage Dist., 5 Fed. : Rep. 2d. Series 605. The proof :in- this case shoivs' that appellant's, lands haV& not been benefited, that the scheme: has been abandoned; and to Make them pay any assessnieht -at : all under these conditions, I think, is taking their Property without any . compensatiOn. I think the proof shows that, if the Cache River Iinprovement was:- completed, the only way it would affect appellant's . land Would be. to somewhat reduce the depth of water on appellant'S land during 'an overflow. In other words, if the Cache River improvement had been completed, the water frOm the overflow on appellant's land would net be quite as deep as it would without the improvement. But thia improvement has ibeen abandoned, and. tbere is therefore,..as I View :it, no benefit accrting to appellant's land, and: it -should not be assessed; and the case should be reversed.,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.