Kinard v. Cache River Bayou DeView Improvement District

Jack Holt, Jr., Chief Justice. This case involves a petition filed by the commissioners of the Cache River Bayou DeView Improvement Dis trict seeking permission in circuit court to alter the plans for the district. The petition was granted and this appeal is brought by the landowners who oppose the proposed changes. Our jurisdiction is under Sup. Ct. R. 29(1) (c) as we are being asked to interpret a statute. The improvement district was established by court order entered on July 21, 1958, pursuant to Ark. Stat. Ann. §§21-1001 to 21-1003. Its purpose was to channelize the Cache River and Bayou DeView to create a large channel or ditch to drain an extensive area of land surrounding the rivers. The Corps of Engineers made plans and estimated costs for the project but it was never completed and work ceased. The commissioners for the district petitioned the circuit court in 1983 for an order extending and enlarging the powers of the improvement district to include those rights, powers and privileges of drainage districts as provided by Ark. Stat. Ann. §§ 21-501 to 21-581. The commissioners sought the order because the rivers were not navigable, and the lands in the district were suffering from floods and lack of drainage because of the failure to complete the original project. The extension and enlargement of powers was sought pursuant to Ark. Stat. Ann. § 21-1026 (Supp. 1983) which provides: By such Order of the Circuit Court the powers of such an improvement district shall be enlarged and extended to embrace all the powers, rights, and privileges of drainage districts organized under the existing laws of the State of Arkansas. . .The purpose of this extension of powers shall be to complete the improvements contemplated by the Act of Congress and the plans of the Corps of Engineers. . .which were filed with and made a part of the petition for the establishment of the improvement district. . . Protests, which included a claim that the altered plans do not complete the improvements contemplated by Congress as required by Ark. Stat. Ann. § 21-1026, supra, were filed by landowners in Poinsett County. After a hearing on October 4, 1983, the trial court granted the petition to acquire powers of drainage districts and ordered the commissioners to proceed with the steps required by law for determination of the work to be done under the proposed project and for the assessment of benefits. Ark. Stat. Ann. § 21-1025 (Supp. 1983) provides: The order of the Circuit Court enlarging the powers of the district shall have all the force and effect of a judgment. Any owner of real property within the district may appeal from said judgment within thirty (30) days after the same has been made, but if no appeal is taken within that time, the judgment authorizing the enlargement of the powers of the district shall be deemed conclusive and binding upon all the property within the boundary of the district and upon the owners thereof. . . Nevertheless, the order of October 4, 1983, was not appealed. Subsequently the commissioners filed a petition for alteration of the plans of the district on March 28, 1984. The petition was filed in accordance with Ark. Stat. Ann. § 21-517 (Repl. 1968) which states: The commissioners may at any time alter the plans of the ditches and drainage [drains], but, before constructing the work according to the changed plans, the changed plans, with accompanying specifications, showing the dimensions of the work as changed, shall be filed. . . and notice of such filing shall be given. If by reason of such change of plans, . . . any property owners deem that the assessment on any property has become inequitable, they may petition the county court. With the petition, the commissioners filed a proposed work map and cost schedule detailing the changes. The plan provided for the removal of blockage, drifts, trees, stumps, and silt from the stream beds. The petition stated that the improvements originally proposed would be too expensive for the district’s present assets and that therefore, “It has been determined by the Board of Commissioners that the altered plans will provide relief presently needed by the landowners of the District and will relieve a considerable part of the existing flood damage which occurs periodically, at a cost within the means of the District.” After hearing testimony on behalf of the commissioners and the opposing landowners, the court on May 2, 1984, approved the alteration of plans and directed the commissioners to proceed with the plans and to reassess the property. The court further provided that the property owners would be given an opportunity “to appear and present their view for or against the proposed assessment of benefits.” This appeal results from the court’s May 2, 1984 order approving alteration of plans, rather than the previous order of October 4, 1983, enlarging the district. The abstract is deficient in several aspects, making it difficult for this court to assess the issues raised by this appeal. However, we will address the merits upon the materials presented utilizing the points relied upon by appellants. I. APPELLEES HAVE FAILED TO COMPLY WITH ARK. STAT. ANN. § 21-1026 Initially the appellants contend that the appellees failed to comply with § 21-1026, supra, inasmuch as the statute provides that the purpose of an extension of powers “shall be to complete the improvement contemplated by the Act of Congress and the plans of the Corps of Engineers.” Yet it is alleged that the plans as altered do not complete the Corps’ original plan. This point raised by the appellants, that the altered plans do not comport with the original purpose of the project, is not timely made. The same argument was presented to the trial court by the appellants in their amended protest to the petition for enlargement and was the subject matter of the earlier hearing on October 4, 1983, which resulted in the court entering final judgment in favor of appellees. The appellants, protesting landowners, were entitled to appeal from such a ruling within 30 days of the date the judgment was entered. § 21-1025. No appeal was taken from this ruling. Instead an appeal was filed seven months later from the court’s order of May 2, 1984, approving the alteration. Likewise, appellants did not object to the petition for alteration based on the appellee’s failure to comply with § 21-1026. This argument therefore cannot be resurrected on appeal by the appellants in their protest to the petition for alteration. Issues raised for the first time on appeal are not considered. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89 (1978). The trial court is therefore affirmed on this point. II. APPELLEES HAVE FAILED TO SHOW THE PROPOSED PLAN IS IN THE BEST INTERESTS OF THE LANDOWNERS The appellants argue that the appellees have failed to show by a preponderance of the evidence that the proposed plan is in the best interest of the owners of the real property within the district. The appellants state that no landowner other than a commissioner testified on behalf of the appellees’ plan, while several landowners testified in opposition. This statement overlooks the fact that the nine commissioners who presented the petition to the court calling for extension and enlargement of this district are landowners from each of the counties making up the district. § 21-1003. By comparison, the opposing landowners who testified came from only three of the same nine counties. In order to sustain appellant’s contentions, we must find that the trial judge’s findings were “clearly erroneous (clearly against the preponderance of the evidence) and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ark. R. Civ. P. 52(a); Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980); Ford Motor Credit v. Yarbrough, 266 Ark. 457, 587 S.W.2d 68 (1979). The trial judge in his findings labored over the stormy history of the Cache River Bayou DeView project. He gave considerable thought to expert testimony that current plans will give partial relief to landowners in the district by getting at least 50% of the flood waters off of the land and out of the area in question, as opposed to the testimony of the protesting landowners who sincerely feel that the project is of little or no value and that it should be stopped, thus maintaining and preserving the status quo. Weighing the interests of all parties, the trial judge stated: There are other landowners, since the evidence says there is nearly a million acres involved here, that have an interest in what the Court does today. I must be concerned with and take into consideration their interest and the overall ultimate benefit, if a benefit is to be derived from this plan. In further deliberations, the court concluded: It is a plan which will, in the Court’s humble opinion, improve, enhance and benefit the vast majority affected within the area. By approving the plan, we cannot say the trial court clearly acted against the evidence. Harrell Motors, Inc., et al v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981). “In reviewing the sufficiency of the evidence on appeal to support the decision of a trial judge sitting as a jury, we consider the evidence in the light most favorable to the appellee and affirm unless the trial court’s decision is clearly erroneous. ... It must be remembered that the credibility of the witnesses is determined by the fact finder, not this Court.” Orsby v. McGee, 271 Ark. 268,608 S.W.2d 22 (1980). See also, Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982). Our ruling does not preclude the opposing parties, many of whom are named in supporting petitions which are part of the trial record, from presenting their views on the tax assessments of their property when the commissioners make that determination. Ark. Stat. Ann. § 21-1028 (Supp. 1983). Affirmed. Hickman and Hays, JJ., dissent.