Appellee, Roland Drainage District was organized in 1935 for the purpose of constructing a levee for the protection of several thousand acres of rich lands surrounding the town of Roland, Arkansas, from overflow by the Arkansas River. The levee was constructed by the Government at its expense, the only expense to the property owners being the cost of the right-of-way for the levee and for maintenance. The right-of-way was donated by the farmers. The Rock Island Railroad runs through the district on an embankment which afforded some levee protection to the lands in the district on the west side of its tracks. A small tax of 20 cents per acre was levied on the lands in the district on the east or river side of the tracks and 10 cents per acre on lands on the other side. No assessment was made on lots or subdivisions of lands to the town of Roland because it is on high ground above overflow and because the tax would be so small as applied to lots or subdivisions as to be impracticable of levy and collection.
It was stipulated by counsel that the 1935 order creating the district showed 7,086.94 acres in the district, of which appellant owned 121.44 acres. Total assessed benefits were less than $3,000. Flood damage to the levee so constructed in succeeding years necessitated additional work by the U.S. Engineers in 1938, 1941 and 1943. In 1943 additional benefits were assessed by order of the county court based on a petition so to do, and certain lands in the district were excluded from assessment by reason of the fact that they would receive no benefits because of the relocation of parts of the levee so as to leave them between the levee and the river, all based on the same procedure as involved on this appeal. At that *Page 639 time (1943) the total acreage in the district was 6,886.94 of which appellant owned 171.44 acres. A bond issue of $5,500, based on said reassessment of benefits, was authorized and the bonds sold, to acquire additional right-of-way for portions of the proposed new levee to replace portions of the old levee which had been washed away by the high waters or had caved into the river. This was done and the Government Engineers again built the levee.
In 1945, the flood from the river caved in the levee and overtopped in places, leaving the lands in the protected portion of the district subject to overflow with, every high stage of the river. The Government Engineers determined that, because of the previous trouble in maintaining a levee in prior years, a set-back levee was necessary with lighter elevations, to be constructed further away from the river. A survey was made, and stakes set showing the route of the set-back levee and the Engineers proposed to construct the new levee over the new route, connected with the railroad embankment at each end, at government expense, nearly $200,000, if the district would acquire the right-of-way.
In December, 1946, the Commissioners of the district, proceeding under 4526-4529 of Pope's Digest, caused to be filed with the county court a petition of landowners of the district, purporting to be signed by a "majority in number, acreage or value of the landowners in the Roland Drainage District," praying the approval of the court of the plans of the Commissioners theretofore filed, which plans embodied a petition to re-assess the benefits, to accrue to the protected lands in the district and the exclusion from assessment of benefits all lands not benefited, including the proposed new right-of-way and all lands lying on the river side of the levee. An order was made by the court of December 13, 1946, accordance with the prayer of the petition. An assessment of benefits was made, filed on April 26, 1947, and was approved by the court. The final result was an assessment of 50 cents an acre on lands of the district lying east of Rock Island Railroad and 20 cents an acre on lands west of the railroad. *Page 640
Notice was published that hearing would be had on the re-assessment of benefits on May 16, 1947. On that day appellant appeared in court and objected to the assessment and attacked the legality of the procedure on the ground that the order of the court of December 13, 1946, finding that the petition of property owners filed December 13, 1946, contained a majority in acreage and value was erroneous. Her objections were overruled and an appeal was taken to the circuit court, where there was pending a suit by the district against her for condemnation of some of her land for a right-of-way, and in which appellant had sought to attack the validity of the procedure, as she had done in the county court, and so much of the condemnation suit as related to the validity of the procedure was there consolidated with her appeal from the county court, leaving the value of her land and damages yet to be determined.
Trial of appellant's attack on the procedure looking to a re-assessment of benefits was had in the circuit court, and resulted in an affirmance of the orders and procedure in the county court, and an appeal has been prosecuted to this court.
We understand from this record and from the briefs of counsel that the sale purposes of the procedure taken was to raise funds to acquire a right-of-way for the new or set-back levee by the issuance of bonds or other obligations based on a re-assessment of benefits on the lands of the district that would be benefited and to exclude from such assessment all lands covered by such new levee and all lands theretofore assessed lying between the levee and the river and all lands that had caved in the river. Obviously, all such lands so excluded could not be benefited, but might be damaged, and could not be assessed.
It was stipulated that the number of acres of land in the new project; that is, lands west of the levee, as shown by the assessment record filed with the county clerk April 26, 1947, was 4,186.67, with assessed benefits of $31,949.46, and that the number of acres of appellant's land included therein was 22.83, on which she *Page 641 is taxed annually $11.42. The petition of landowners was signed by persons owning about 2,500 acres, clearly more than a majority of 4,186.67 acres, and is sufficient, if only those lands west of the levee are to be considered, and not sufficient if those lands between the levee and the river are to be regarded as being in the district. This is appellant's principal argument for a reversal. No other landowner, either within or without levee protection is complaining. The levee has been constructed. All landowners affected, except appellant, have conveyed to the district the right of way over their lands, and the district has paid out for this purpose already approximately $10,000, and we assume was compelled to borrow the money for this purpose, since the district still owes on the previous bond issue of 1943 $2,500 which it seeks to refinance in this proceeding. Appellant seeks to destroy the whole procedure taken to re-assess the benefits in order to raise funds to acquire the right-of-way for the new or set-back levee, and, at the same time, she is seeking to recover from the district a large sum for the value of her lands already taken and for large damages to her lands not taken, but left outside of the levee, between it and the river.
These positions appear to me to be contradictory and inconsistent. She has the right to contest with appellee the value of her land taken and the damages, if any, to her land not taken, but she cannot at the same time contest the validity of the petition of property owners on which the assessment of benefits is based, because if the procedure taken is invalid, she cannot be paid for her land taken.
Appellant also contends that appellee should have proceeded under 4501 of Pope's Digest, relating to the formation of sub-districts. I do not agree. This is not a sub-district of Roland Drainage District, but is the same old district with reduced acreage, because of a setback levee, and appellant is again faced with the inconsistency of her positions.
Moreover, I am of the opinion that the court properly held that only those lands in the district that will *Page 642 be benefited should be considered in determining whether a majority in numbers, acreage or value signed the petition for the additional improvement. Just how much of the land originally in the district in 1935, has caved in the river and been washed away we do not know, but we assume that a substantial portion thereof has ceased to be or to exist as land, and it seems to be unreasonable to say that such land is still in the district and must be taken into consideration in determining whether the petition here was signed by the requisite number. It appears to me to be unreasonable to say that such lands are still in the district. Also, it appears to me that all lands still in place but between the levee and the river and all lands actually covered by the new or set-back levee should be considered as now out of the district, and that the original district has been reduced in acreage to the stipulated number of acres, 4,186.67. These lands are not taxed for the right-of-way for the new levee, and just why their owners should be consulted in the new improvement is difficult for me to understand, also just how appellant will be benefited by a reversal of this case is not understandable. The levee has been constructed and a portion of her land taken for right-of-way therefore. Her tax on the few acres of land she has left in the district is nominal. She may have made it impossible for the district to pay her for her land taken. While I have found no express statutory authority for the reduction in acreage of the original district in the manner here pursued, the statute does not expressly prohibit it and should be so construed as to permit the procedure here followed.
I think the case of Berry v. Cousart Bayou Drainage District, cited in the majority opinion, is not in point with the facts here, and that the judgment should be affirmed.
I therefore dissent and an authorized to say that Mr. Justice HOLT concurs in the views here expressed. *Page 643