Keystone Drainage District v. Drainage District No. 16 , 121 Ark. 13 ( 1915 )

Wood, J.,

(after stating the facts). The only question presented by the appeal is whether or not the trial court erred in excluding the lands embraced in Drainage District No. 16 from the petition for the establishment of Keystone Drainage District, .and in establishing the latter ■district with those lands excluded.

(1) The statute under which the commissioners of Drainage District No. 16 were .appointed conferred no power upon those commissioners to remonstrate against the formation of Keystone Drainage District, although it was proposed by the commissioners for that district to include the lands already embraced in Drainage District No. 16. The commissioners of a drainage district can exercise only such powers as are expressly conferred or necessarily implied from the powers which have been expressly granted. The power to remonstrate against the formation of other districts including the lands within the district for which they may be appointed is not expressly conferred upon commissioners of drainage districts, nor is it necessarily implied from the powers which are expressly conferred upon them.

(2) If the intervention of the commissioners of District No. 16 be considered as the act of the district itself, still the law confers no power upon one improvement district as such to- remonstrate against the inclusion of such district in some other or greater district. One drainage district, under the law, has no ¡authority to object to the formation of another drainage district.

In Lee Wilson & Co. v. Compton Bond & Mort. Co. 103 Ark. 452-463, we said: “It is also urged that one tract of land included in this drainage district was located in another drainage district, and was therefore not subiect to an assessment in this district, which, it is claimed, would be making a double assessment upon this land for drainage purposes. But this question involves solely the 'amount of the benefits which such laud receives from the drainage system within this district, and with which it should alone ibe charged. It does not involve the power to include this land within the drainage district. The land may ibe benefited by both drainage districts. ’ ’

And in Sembler v. Water & Light Imp. Dist. 109 Ark. 90, we held that one improvement district may be embraced “in a new district covering a broader territory if additional benefits accrue to the property in the old district.”

The judgment of the court in establishing the Keystone Drainage District, .and excluding the lands embraced in Drainage District No. 16, was erroneous and it was a final order from which petitioners had a-right to appeal. The establishment of such district, after excluding the land embraced in District No. 16, was not in conformity with the prayer of their petition, and the district thus created had no basis, under the statute, to rest upon. The judgment is therefore reversed and the cause 'will be remanded with directions to dismiss the intervention of the commissioners of Drainage District No. 16, and for further proceedings according to law.