Howell v. White River Levee District

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 prosecuting 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 from the overflow of the White River by the levee along-that stream. Act No. 97 of the 1911 session of the General Assembly (Special and Private Acts 1911, page 215) created and ■ defined' the boundaries óf the White- River Levee 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 no taxes appear to have been extended against their lands until • 1919, when the taxes for that year were assessed against the lands of appellants. They . thereupon brought suit to enjoin the.collection of .the taxes, and alleged that the lands, by reason of their location, had not and could not receive any benefits from levee-ing White River. The depositions of several witnesses were .taken, in support of. the- -allegations of-, the complaint.- This testimony was to the effect :that"a large part of appellants’ lands were low and swampy and unfit for-cultivation as the result of the annual overflows'of both the White .and Cache Rivers, and that-the leveeing of the White River did-not prevent the overflow of the lands by the Cache River, although the depth and duration of the overflow.was lessened by protection from the White River. , \ -. • . .. - . . • - The suit’to enjoin the collection of -th'eT91-9 tax does not appear to have been -prosecuted to a final' decree, and while it was pending there was passed, at the Extraordinary session of 1920, an act entitled “-An act in aid of the White River Levee -District.’’-’This is one of the unpublished-acts. . .. ; . This act of 1920: authorized the board of -directors of’ the White- River Levee District to- straighten ■ the channel of the Cache River and to construct-such drains, ditches, and levees “as will be- necessary-to protect the lands of the district from overflows from the waters of Cache River, ’ ’' and, to accomplish that end, the. White River Levee-District was authorized - to. issue interest-bearing bonds in a sum not exceeding $400,000. . 5 . At the-ensuing regular 1921 session .of the -General Assembly an act was passed which provided -for a reassessment of the benefits in. the White River -Levee Distinct,. 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' of benefits theretofore assessed should not be reduced, but that the existing assessments-should be-equalized, and, to that- end, assessors were named in the act, who were directed'“to make a reassessment 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 district required the president of the hoard of directors to give notice of the original assessment and of the time and maimer 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 improyement authorized by the special act of 1920 was never completed. The straightening and deepening of the channel of Caché River- was' begun, but the work stopped about seven of 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 appel-' lants 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 iii determining whether the lands will be benefited." The answér 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 doné. Salmon v. Board of Directors, etc., 100 Ark. 306, 140 S. W. 585; Road Imp. Dist. No. 3 v. Norris, 153 Ark. 635, 241 S. W. 380; Hunt v. Road Imp. Dist. No. 12, 168 Ark. 266, 270 S. W. 961. It is stipulated that' the assessors, in making the last assessment, ^reassessed the benefits “in accordance with the law appointing them, and in strict conformity 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 also that the present assessment of appellants’ lands was greatly reduced, some of the assessments being not more than a third of the original. It was also stipulated by counsel that the depositions taken in the first suit brought by ,appellants to enjoin the collection of the taxes agáinst appellants’ lands might be read in evidence; 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 fact that, unless Cache River is improved, that stream would overflow appellants ’ lands, even though White River were leveed, but this testimony also shows that the extent and duration of the overflow would be lessened by levee-ing White River, so that some benefit would be conferred even though complete relief was not afforded. In the case of Memphis Land & Timber Co. v. St. Francis Levee District, 64 Ark. 258, 42 S. W. 763, the landowner resisted the collection of the tax imposed on its land upon the ground that the levee would not 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 from 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 court, said that this proof was not sufficient to show that such lands would not ho benefited by the levee, as the owner might be enabled to reclaim them 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 assessment, 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 case of Rogers v. Arkansas-Loudsiana Highway Imp. Dist., 139 Ark. 322, 213 S. W. 749, we said: “We announced the rule to be followed by this court 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 procéedings of the assessors should not substitute the judgment of the judges for that of the assessors, unless the evidence clearly shows that the assessments 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 that the assessors acted arbitrarily in making the assessment. On the contrary it is stipulated that, to the best of their ability, they made a 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. ■ 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 it is so ordered.