Equen v. Arterbury

Stevens, J., delivered the opinion of the court. Acting under chapter 195, Laws of 1912, as amended by chapters 269 and 271, Laws of 1914, the appellees filed their petition in the chancery court of Leflore county, praying for the organization of a drainage district comprising certain lands in Leflore, Holmes, and — 91 — Carroll counties, and to be known as the “Abiaca drainage district” of said counties. Upon this petition the chancellor directed the clerk to give notive by publication to all parties interested, and the publication was made in the three counties named. Ten persons claiming to own lands in the proposed district appeared as objectors, and by a pleading in the nature of an answer to the petition challenged the sufficiency of the petition in law, and, among other things, pleaded that the chancery court of Leflore county is without jurisdiction of this proceeding, for the reason, as alleged, that the same petitioners heretofore exhibited their petition to the chancery court of Holmes county, praying for the organization of a drainage district to be composed of approximately the same territory here to be incorporated into a district; that the chancery court of Holmes county upon due consideration entered a decree dismissing the petition, and that the final decree entered by the chancery court of Holmes county is a bar to this proceeding in Leflore county. A copy of the pleadings and decree in the Holmes county proceeding- is exhibited as a part of the answer. The chancellor appointed C. L. Lomax as special commissioner to hear any controversies arising between the parties, and the commissioner passed upon the plea of res ad judicata, and made his report to the chancellor, setting forth his ruling and the reasons therefor, and the chancellor, over the objections of the appellants, confirmed the report of the commissioner, thereupon accepted the resignation of the commissioner, and fixed a day- in vacation for further proceedings in this cause, but granted an appeal to appellants “to settle the principles of the cause and to avoid expense and delay. ’ ’ In the final decree rendered by the chancellor in the Holmes county proceeding is the following provision : — 92 — “It is further ordered that the clerk of this court preserve all maps, plats, engineer’s report and surveys and other proceedings had herein, for future use as provided by section 4, chapter 269, Laws of 1914.” And the decree makes provision for the costs incurred in the first proceeding and the collection thereof. It does not affirmatively appear to us now that at the hearing fixed by the chancellor a protest or objection was interposed signed by a third of the landowners or by a majority of the landowners, but appellants do enter their appearance, and file certain remonstrances. No final disposition had been made of the petition when the commissioner overruled the plea of res adjudicata and when the chancellor confirmed and approved this action of the commissioners but it affirmatively appears that a subsequent date was fixed by the chancellor for further proceedings to be had in accordance with the statute. The appeal here prosecuted is therefore an appeal from an interlocutory decree entered by the chancellor in the course of the proceedings. There are two contentions in reference to jurisdiction: First, want of jurisdiction is predicated upon section 1, chapter 269, Laws of 1914, which provides: “If land in more than one county is embraced in the proposed district, the application shall be addressed to the chancery court of any county of such district, and all proceedings shall be had in such chancery court.” Secondly, that the decree entered by the chancery court of Holmes county in the first proceeding is such a former adjudication as constitutes an absoute bar to the present proceeding in Leflore county. The right of appellants to prosecute this appeal is not challenged by motion to dismiss or otherwise. The chancellor expressly granted an appeal, and both parties ask and insist that the point raised and briefed should — 93 — be decided. Without, therefore, passing upon any question as to the right of appellants to appeal from the decree complained of, we proceed to a brief discussion and á decision of the one and only point presented; that is, whether the chancery court of Leflore county had jurisdiction, and. whether the plea of res adjudicata was properly overruled by the chancellor. No other point could now be decided. The latter part of section 4, chapter 269, Laws of 1914, provides: “In any proceeding heretofore, or hereafter, had for the establishment of a ditch or drain, or the doing of any other thing deemed necessary when an engineer has been appointed, and has made complete surveys and reports thereof, and for - any reason the improvement has been abandoned, and the proceedings dismissed, and afterward proceedings are instituted for the establishment of a ditch or drain or for the doing of anything toward the prosecution of said work, for the reclamation of the same territory surveyed in said former proceedings, or a part thereof, and the territory additional thereto, the engineer’s reports, surveys, stakes and monuments made in former proceedings, as far as practicable, or so much thereof as may be applicable, and the cost thereof in said former proceedings, or such parts thereof as used, shall be paid for as a part of the subsequent proceeding in which such report, surveys, stakes and monuments, or a part thereof, are used.” It is the province of the legislature to provide for the establishment of drainage districts and the authority, as well as the procedure, for the creation of the drainage district in this case is governed by the statutes. If the district is to be created out of territory situated in more than one county, the statute provides that the application shall be addressed to the chancery court of either county in which a portion of the lands may be situated, “and all proceedings shall be had — 94 — in such chancery court.” This means nothing more than that the proceeding shall he had before the chancery court instead of before the board of supervisors. It does' not deprive the chancery court of Leflore county of jurisdiction in this case. The plea of former adjudication is not well taken. The petitioners have proceeded under the authority of the statute, and proceedings are being taken by the chancery court of Leflore county looking to the permanent creation of a drainage district out of well-defined territory. "We do not regard this as a kind of proceeding in which the doctrine of former adjudication can be invoked, in the absence of an express statutory provision to that effect. The statutes under review make no provision for such a plea. On the contrary, the quoted provision of section 4, chapter 269, Laws of 1914, clearly indicate that more than one proceeding may be instituted for the establishment of a ditch or drain under the provisions of the statute. The legislature, in contemplating a subsequent proceeding," expressly provides that the engineer’s reports, surveys, stakes, and monuments made in the first proceeding shall be paid for as a part of the costs in a subsequent proceeding. The only judgment which the statute gives the force of the usual judgment at law is the order of the board of supervisors or the chancery court establishing a district. This final order establishing a district is by express provisions of section 3, chapter 269, LaAVs of 1914, given “all the force of a judgment,” and from this order any owner of real property is given the right of appeal. The proceeding being statutory, we must look to the statute for the available, grounds of remonstrance. A case in point is that of Heick v. Voight, 110 Ind. 279, 11 N. E. 306. In that case the answer pleaded an alleged former adjudication, and the supreme court of Indiana, by Mitchell, J., on this point said: — 95 — “The statute provides definite and particular grounds of remonstrance. Some of the answers presented, as a bar to the proceedings, grounds of objection which are not specified as grounds of remonstrance. The grounds of remonstrance cannot be enlarged by answers filed before a report of the commissioners is made. No provision is made for pleading a former adjudication. It is therefore to.be inferred that the legislature did not intend that one failure to secure the drainage petitioned for should bar all future attempts, if the petitioner was willing to run the hazard of paying the costs in case such subsequent efforts failed of success.” The reason for this ruling is apparent. If an order of the board of supervisors or the chancery court dismissing the petition is given all the force of a judgment, it would operate for an indefinite length of time. A mistake might be made or conditions easily change. This is a statutory and administrative matter in which the public has an interest. Surely a technical rule of the common law should not be invoked to defeat a meritorious internal improvement; and the courts should not so'hold in the absence of an express statutory provision on the point. It is well that litigation should be ended, and we do not mean to say that a case could not arise indicating a fraudulent repetition of the same proceeding or an imposition upon the court and a possible case of estoppel. The decree appealed from will be affirmed and the cause remanded for further proceedings. Affirmed and remanded-