Norton v. Bacon ( 1914 )

McCulloch, C. J.

A road improvement district in Lincoln County was formed by an order of the county court, made upon petition of property owners in the district to be affected, pursuant to Act No. 402 of tbe General Assembly of 1909.

Appellant owned property in tbe district, and, after tbe district was formed and proceedings were begun thereunder toward tbe assessment of property for tbe improvement, be instituted this action to restrain such proceedings, alleging that tbe order of tbe county court is void for tbe reason that neither tbe boundaries of tbe district nor tbe lands situated therein were described in tbe published notice.

Tbe chancery court sustained a demurrer to tbe complaint, and an appeal has been prosecuted to this court.

According to tbe allegations of tbe complaint, tbe petition for tbe improvement undertook to describe tbe tracts of land to be affected, and a plat was filed with tbe petition giving a description of tbe lands to be included in tbe district and also showing tbe boundaries of tbe district; but tbe published notice which preceded tbe order of tbe court only set forth tbe description of tbe land as stated in tbe petition.

Section 6, township 9 south, range 5 west, is, as alleged in tbe complaint, an irregular section, according to tbe plat of tbe public survey, and tbe subdivisions thereof are numbered as lots. A portion of that section is included in tbe boundaries as shown in tbe plat and also by description of certain lots set forth in tbe petition and notice; but there is a variance between the description in tbe petition and notice and in that portion of the section included in tbe boundaries shown on tbe plat. That is to say, there is a variance if it be true, as alleged in tbe complaint, that tbe lots described inside of the boundaries do not answer to tbe description of those lots according to tbe plat of tbe public survey. Those lots contain 200 acres and lie along tbe west boundary line of tbe section and tbe east boundary of tbe districts. Tbe lots included in tbe boundaries shown on tbe plat are described in tbe Government surveys as west half lot 5 and lots 6 and 17; whereas, in tbe petition and plat and in tbe published notice that territory is described as lots 4, 5, 12, 13 and 20.

The plat of the public survey, as exhibited with the complaint, shows that lots 4,12,13 and 20 are situated in another portion of section 6 and are not contiguous to the other territory embraced in the district.

We have, therefore, according to the allegations of the complaint, a case where the notice does not conform to the plat filed with the petition, and the question raised is whether or not that avoids the proceedings.

The statute under which the district was formed reads as follows:

“Whenever a majority in value of the owners of real property in a county, or any part of a county, such majority in value to be determined by the assessment for purposes of general taxation in force at the time, shall present a petition to the county court of any county in this State, praying for the formation of a road improvement district, the said county court shall, after having given public notice for twenty days by printed copies posted in ten places in said county, or part thereof, one of which shall be posted on the principal door of the courthouse of said county, or by publication in some newspaper in said county, determine the fact that such petition is so signed by such majority in value of said land owners. The said petition shall be accompanied by a map or plat of the particular part of said county to be included within the boundaries of said district, if the said boundaries be less than the entire area of said county; and the said designated boundaries shall be plainly indicated so that no controversy may. arise as to the limits of the same. Said petition shall also contain a general description of the proposed road, stating starting point, route, and terminous, as near as practicable.” Section 1, Act No. 402, Acts of 1909, p. 1153.

There can be no doubt that the publication of notice describing the land is jurisdictional, and the county court has no authority to form a district until notice has been published in accordance with the terms of the statute.

The statute does not undertake to prescribe what the notice shall contain, but it is manifest that it is intended to contain a correct description of the lands to be affected, so that property owners may have an opportunity to know that their lands are about to be proceeded against, or to be included in the formation of the district. There must be such a description .as would be sufficient to put all of the land owners on notice.

Now, according to the allegations of the complaint, the plat includes 200 acres of land which were not correctly described in the notice, and this makes a fatal variance between the notice and the plat. The fact that the plat and the notice both contain the same erroneous description does not obviate the variance, as the plat gives the exterior boundaries of the district and includes that area, even though the description by lot numbers- is erroneous. To exclude the territory from the plat would be to form a district of less territory than that included in the boundaries set forth therein; and, on the other hand, if we should include that territory in the district, it would be done without notice having been given to the owner as required by the statute. So we think that there is a fatal variance between the description of the lands embraced in the notice and those included in the plat and that this invalidates the formation of the district.

The same principle was involved in the case of Voss v. Reyburn, 104 Ark. 298, where we held that (quoting from the syllabus), “where an attempted publication of an ordinance creating an improvement district omitted two half-blocks from the proposed improvement district, the variance is material and destroys the validity of the attempted organization. ’ ’

That case related to an improvement district formed under general statute in a municipality, and publication of the ordinance was required, whereas under the statute which governs in this case notice was required to be published before the order is made forming the district. The two things are, however, of equal importance and the same principle governs in each, of the cases. In tliat case we said:

“The omission from the publication of the ordinance designating the district of the half of two blocks, containing twelve lots, is so material and important a variance from the petition and ordinance as passed as to destroy the validity of the attempted organization of the district. It was, in legal effect, no publication at all, and did not comply with the statutory requirement. The object of designating the boundaries of the district was to enable the property owners included therein and affected thereby to easily ascertain what property was included in the district. * * * It would be very unjust to property owners to include them in the district without giving them the opportunity, if they deemed it unwise, to protest against it and to endeavor to convince and persuade their neighbors of its inexpediency. This right is intended to be guaranteed to every owner of land in the district by the statute under consideration. ’ ’

It follows that the chancellor was wrong in sustaining a demurrer to the complaint. Reversed and remanded, with directions to overrule the demurrer.