White v. Lake Cormorant Drainage Dist.

Anderson, J., delivered the opinion of the court. This is an appeal by W. O. White and thirteen others, landowners in the Lake Cormorant drainage district, from a decree of the chancery court of De Soto county approving a second assessment of benefits to the lands constituting said district. Appellants E. T. Woolfolk, Mrs. O. T. Knight, J. W. Barbee, Sr., and the D. S. Richmond heirs protested against said new assessment. There was a hearing by the court and decree rendered approving the assessment except as to Mrs. C. T. Knight, J. W. Barbee, Sr., and the heirs of D. S. Richmond, whose assessments were left as they stood on the first assessment roll. Thereupon appellants Woolfolk and thirteen other landowners of said district, who were not present at the hearing, prosecuted this appeal from said decree. The Lake Cormorant drainage district is situated in De Soto and Tunica counties. It was organized under chapter, 195, Laws of 1912, as amended by chapter 269, Laws of 1914 (Hemingway’s Code, sections 4434 to 4483, inclusive). There are two questions involved. One is whether the court erred in holding that the statute under which said drainage district was organized authorizes a second assessment of benefits; the other, whether the court erred in releasing from such assessment of benefits certain landowners of the district. We will consider them in the order stated. This court,, having before it chapter 199, Laws of 1912 (Hemingway’s Code, section 4290), held in Gum Creek District v. Clark, 124 Miss. 382, 86 So. 859, that, in the absence of specific statutory authority, there could be no reassessment of benefits by a drainage district. Does the statute-under which this district was organized give specific authority for a new assessment of benefits? Section 7 of [368] the statute (Hemingway’s Code, section 4445) provides among other things: “The assessment roll, so prepared and filed by the commissioners, when approved by the board of supervisors, shall stand as a final assessment of benefits upon the lands of the said district and no new assessment roll shall be required unless in the opinion of the commissioners it becomes necessary to raise the assessment of benefits to such lands because of additional benefits to the lands other than those assessed, or because it becomes absolutely necessary in order to raise funds to preserve and maintain the improvements of the district.” It will be noted from the statute that there can be no new assessments of benefits unless it becomes necessary to raise the assessment because of additional benefits to the lands other than those assessed in the first assessment, or because it becomes absolutely necessary in order to preserve improvements already made in the district. In considering this question section 33 of the act (Hemingway’s Code, section 4481), should be borne in mind. This section provides among other things that the act shall be liberally construed to promote the ditching, drainage, and reclamation of swampy and overflowed lands. The proceeds of the bonds sold to pay the expense of the work planned under the first assessment of benefits were exhausted before the work was completed. It was found by the commissioners that it would take something like one hundred fifty thousand dollars more to complete the project. Under the holding of this court in Clark v. Pearman, 126 Miss. 327, 88 So. 716, the required additional bonds could not be issued and sold without a new assessment of benefits. The commissioners made a new assessment of benefits, making a horizontal raise of fifty per cent, of the first assessment of the land of the district; and the commissioners filed a petition setting out that a new assessment was necessary to raise funds to complete the proposed improvements, and that by reason of such improvement, when completed, the lands of the district would [369] receive additional and other benefits to those found by the first assessment; and furthermore, that it was necestary to complete the work planned and commenced in order to preserve and maintain the improvements already made. All the landowners of the district, including the appellants, were given notice as provided by the statute of the time and place of hearing before the court of the new assessment. The evidence tended to establish the allegations of the petition. Witnesses testified that the completion of the work planned would result in other and additional benefits to the lands of the district than those found in the first assessment; that in fact the added value was as much or more than the increase shown by the new assessment. There was some testimony to the effect that if the improvement planned was left incomplete the benefits of the work already done would be destroyed. We deem it unnecessary to consider the question whether the decree of the court can be justified on the ground that •the new assessment was authorized by the statute for the purpose of preserving and maintaining the improvements already made. In our opinion under the evidence the decree of the court was authorized by that clause of the statute which authorizes a new assessment of benefits where there are additional benefits to the land other than those ascertained and found in the first assessment. The court in its decree in this case found, and it was justified in so finding by the evidence, that the lands in this district would receive, by the completion of the improvements planned, at least fifty per cent, more than the benefits considered and assessed in the first assessment. The case made for a new assessment here comes not only within the spirit of section 7 of the act, but within its letter. We therefore find no error in the decree of the court in that respect. The other question is whether or not the court erred in its decree approving the new assessment of. benefits in that by such decree the benefits assessed against the lands of Mrs. Knight, Barbee, and Richmond heirs were reduced [370] to the amounts at which they stood in the first assessment. Separate protests were filed on behalf of each of these parties against the new assessment. After hearing the evidence touching their protests the court rendered the decree appealed from. In this decree there are the following provisions with reference to these protests. “Thereupon came Messrs. Dinkins, Wilroy & Barbee, solicitors of record for each and all of the protestants above named, and in open court agreed for and on behalf of all of said protestants that in consideration of diminishing their said assessment as hereinafter stated, that they would dismiss all of said protests, withdraw all evidence offered by them and accept said reduction in said assessment in full settlement and extinguishment of all claims for damage against the district on all accounts whatsoever growing out of lands taken and damage to other lands. And the chancellor being fully advised in the premises and ■having heard proof does hereby adopt the suggestion of said commissioners and said assessments are diminished as hereinafter set forth and upon the condition hereinbefore named and agreed to by all parties. And said protests are dismissed and said evidence withdrawn, it appearing to the chancellor from the proof that there is merit in the protest, and that it is equitable and right that said reduction should be made in their assessments.” It is argued that the decree in this respect was erroneous ; that the court had no authority to enter such a decree without pleadings and proof. The new assessment, as was the first, was a proceeding in re to. Although appellants, except Woolf oik, were not present at the hearing either in person or by counsel, publication of notice to all landowners of the district had been made as required by the statute informing them of the new assessment, and the time and place of its hearing before the' court. This was due process. The court thereby acquired jurisdiction to render the decree which was rendered. The drainage commissioners were present represented by counsel and consented to the decree which was entered, believing it to be [371] just to those whose lands were released from the new assessment as well as to all the other landowners of the district. The commissioners in a sense occupied a relation of trust toward the landowners of the district. They had no interest except to see that justice was done to each and all of them. However, the decree was made on pleadings and proof. " It is true that after the-hearing the court permitted the pleadings and proof to be withdrawn from the record, but appellants are not in a position to complain at that action of the court, for they had an opportunity to be present. They knew that under the law the court on the hearing had authority, if the evidence justified it, to make changes in the assessments, to increase or decrease such assessments, or release lands entirely therefrom. . Appellants had the right, if present in court, to object to the pleadings and proof being withdrawn, and on such objection being overruled, assign such action as error on appeal. They had the right on proper application to the court to have the pleadings and proof so withdrawn made a part of the record in the cause for the purposes of appeal. Having failed to do this, in our judgment they have no right to complain at the action of the court in that respect. The consent feature of this decree with reference to the parties whose lands were released from the new assessment can be entirely eliminated and still there is left a d.ecree reciting that, after hearing the evidence, the court found there was merit in the protest of these parñes and it was just and equitable that their assessments should be reduced to the amorints at which they stood in the first assessment. Appellants have had their day in court on this question which they failed to take advantage of. We are therefore of the opinion that the court committed no error in this respect. Affirmed.