Scrivener v. Lamar

Smith, T., delivered the opinion of the court. The board of supervisors of O'alhoun county created therein a swamp land district under the provisions of section 871 et seq. of the Code of 1906, and in doing so; complied in every respect with the law as contained therein. After establishing the district the board was proceeding to issue bonds as provided for in Code 1906, § 882, and subsequent code sections, and in so doing complied with all the provisions of the law relative thereto. Thereupon this suit was instituted in the court below by appellant, seeking to enjoin the issuance of said bonds. From the decree dissolving and dismissing appellant’s bill, this appeal is taken. Appellant at the time of the creation of this swamp land district, and at the time the order of the board directing the issuance and sale of bonds was entered, was not the owner of any land embraced within the district, but has purchased land therein since the order to issue bonds was entered. The party from whom he purchased his land owned same at the time the district was created, and signed the petition addressed to the board of ’supervisors praying for the creation of the district, and also the petition addressed to the board of supervisors praying for the issuance of the bonds. No notice was given by the board of the filing of the petition praying for the creation of the district, nor does the statute provide for any such notice. When the filing with the board of the petition praying for the issuance of the bonds occurred, the published notice thereof required by the statute was made; but no notice was personally served upon the [851] landowners of the district, and none such is required by the statute. Appellant’s contention is that, the action of the board in both instances is void, for the reason that the district was created and the bonds ordered to be issued without notice to the landowners. If it is necessary for actual notice of those matters to be served upon the landowners before the board can act, such notice, of course, would be sufficient if served upon the owner of the land. If the owner waives the notice, service of notice is not necessary, and certainly, where he joins in the petition asking that the district be created and the bonds issued, he cannot complain that notice was not served upon him. Appellant has no greater right in this matter than his grantor, and, since his grantor is estopped from pleading want of notice, appellant is also. There is no merit in the other contentions of appellant. Affirmed. Anderson, J., took no part in the decision of this case.