Minyard v. Pelucia Drainage Dist. , 133 Miss. 847 ( 1923 )

Ethridge, J:,

delivered the opinion of the court.

The appellant and others filed a petition before the board of supervisors of Leflore county for the creation of a drainage district under the provisions of chapter 195, Laws of 1912, and amendments thereto (Hemingway’s Code, section 4434 et seq.). Notice was published in a newspaper for two successive insertions as therein provided, and on the day fixed in the notice the district was created, organized, and the commissioners appointed. A survey was made and reports and maps filed by the drainage commissioners. The report made showed the assessment of the benefits to the various property owners in the territory embraced in the district, but did not on its face show any assessment of any damages to any person' within the territory. Thereafter two property owners filed claims for damages, and on proceedings had were awarded certain damages, but the appellant did not file a claim for damages, or any exception to the report of the commissioners or to the assessment roll as made up by the commissioners within the time therein provided, nor did he take any appeal from the order of the-board approving the assessment roll, although notice was published of the assessment roll so made in the manner provided by the act.

The commissioners proceeded with the work of laying out the drainage canal and the main canal as shown by the survey and report passed through the plantation of the appellant. As the work progressed and was approaching the land of the appellant, he suggested to the parties in charge that it would be to his advantage to change the route of the canal so as to pass through a brake on the plantation. After consultation between the engineers and commissioners and attorneys for the drainage district such change was decided to be made; but thereafter, before reaching the premises of the appellant, he changed his mind and notified the parties they could not do any work across his land unless they adhered to the original route. Thereupon the original route was pursued, and, as the drainage canal approached the land of the appellant, he sued out a writ of injunction to compel the commissioners to assess him damages £or the right of way which he alleges took twenty and seven tenth acres of the value of seventy-five dollars per acre, and also for damages in the sum of seven hundred and fifty dollars to build a bridge across the drainage canal when completed. The drainage district answered, setting up the failure of the appellant to claim damages at the time provided by law, and that appellant had taken none of the steps contemplated, and consequently was barred from claiming any damages now. The chancellor dismissed the bill and denied the relief asked, from which the appellant appeals to this court.

Section 6, chapter 195, Laws of 1912, as amended by the Laws of 1914, chapter 269 (Hemingway’s Code, section 4444), provides:

“That as soon as said board of commissioners shall have formed its plan and shall ascertain the cost of improvement, it shall file the same with the clerk of the board of supervisors; said plans shall be accompanied by a map showing the location of all the main and lateral ditches, and shall be accompanied by specifications describing the character of the improvements to be made, the width and depth of the ditches, the probable quantity of earth to be remoyed and all other work to be done and the probable cost of draining said territory. ’ ’

Section 7 of the act, as amended by chapter 269, Laws 1914 (Hemingway’s Code, section 4445), provides:

“That said commissioners, shall proceed to assess the land within the district and shall inscribe in a book, the description of each tract of land, the benefit to accrue to each tract by reason of such improvement, and shall enter such assessments of benefits Opposite the description, together with an. estimate of what the landowner will probably have to pay on such assessment.for the first year. . . The commissioners shall also assess and place upon said roll or book of assessment, opposite each tract of land, all damages that will accrue to any landowner by reason of the proposed improvement, including all injury to lands taken or damaged; and when said commissioners return no assessment of damages as to any tract of land it shall be deemed a finding by them that no damages will be sustained. . . . When their assessment is completed, the commissioners shall subscribe such assessment and deposit it with the clerk of the board of supervisors, where it shall be kept and preserved as a public record. Upon the filing of such assessment, the clerk of the board of supervisors shall give notice of the fact by publication for two weeks by two insertions in some newspaper having a bona fide circulation in each of the counties within which the lands of the district may lie; such notice shall’give a description of the lands assessed in as large tracts as the description will permit; and shall state that said lands have been assessed for drainage purposes in said district; that the owners of said lands, if they desire, may appear before the board of supervisors on a certain day, not less than ten days after the date of the last publication (naming the day), and present complaints, if any they have, against the assessment of land in the district; any owner of real property within the district who conceives himself to be aggrieved by the assessment of benefits, or deems that the assessment of other lands in the district is inadequate, shall present his complaint to the hoard of supervisors on the day named in said notice . ., . not less than ten days after the last publication of said notice; and the said board of supervisors shall consider said protest or complaint and enter its findings thereon, either confirming such assessment, or increasing, or diminishing -the same; and its finding, whether protest is filed or not, shall be final and have the force and effect of a judgment from which an appeal may be taken within twenty days to the chancery court or chancellor in vacation. ...

“The assessment roll, so prepared and filed by the com-, missioners, when approved by the board of supervisors, shall stand as a final assessment of benefits upon the lands of the said district. ... ”

Section 4446, Hemingway’s Code (section 8 of the act as amended by the Laws of 1914), provides: That any property owner may accept the assessment of damages in his favor, made by the commissioners or acquiesce in their failure to assess damages in his favor, and shall be construed to have done so unless he gives to said commissioners within thirty days after the assessment is filed, notice in writing that he demands assessment of his damages by jury, in which event the commissioners shall institute in the proper court in the proper county, an action to condemn the lands that must be taken or damaged in making of such improvements, which action shall be in accordance with . . . chapter 43 of the Mississippi Code of 1906, and all amendments thereto.”

Section 4447, Hemingway’s C ode, provides: ‘ ‘ The commissioners may, at any time after the organization or the district, appraise the value of any land taken or to be taken for the purposes of the proposed improvement, according to the plans of the district on file and the damages resulting to the owners from such taking. . . . And they may make a complete appraisement of all suck lands, taken or to be taken, at one time, or at any time make appraisements as it becomes necessary or desirable. When the commissioners shall have made their appraisement of lands taken, they shall certify to the same and file it with the clerk of the chancery court of the county in which the land lies, and the clerk shall thereupon set down and fix the time for the hearing of objections to such appraisement, . . . to be heard by the chancery court or the chancellor in vacation. And the clerk shall issue a summons directed to the sheriff of the county .. . .• in which any landowner or other person interested may reside, ... to be and appear at the time and place named. . . .

“If any owner is not satisfied with the amount allowed by the commissioners for lands taken, ... he shall file written objections thereto on or before the day named in the summons or notice. . . .

“If written objections are filed, . . . the court or chancellor in vacation shall proceed to hear the objections filed, trying the cause or causes without the intervention of a jury.”

It is the contention of the appellant that, inasmuch as the commissioners proceeded under the provisions of section 4447, Hemingway’s Code, to asses.s the damages for those owners, that he has a right, or any other property owner, to propound a claim and have damages allowed him, notwithstanding no objections .were filed to the assessment within the time prescribed by the statute for such to be done.

As we understand the statute, it is incumbent upon the property owner, when the assessment roll is filed and notice given, to appear and propound his claim for damages within the time mentioned therein. If he does not do so he waives the right to compensation and cannot thereafter propound a claim or proceed to obstruct the work until he shall have been paid for the right of way over bis land and other damages. If be does propound bis claim, then the drainage commissioners have the option to either proceed under the provisions of chapter 43, Code of 1906, or to proceed under section 4447, Hemingway’s Code.

The appellant introduced on the hearing the commissioners and offered.to prove by them that they made no assessment of damages to any property owner, hut that they proceeded upon the view that there were no damages but only benefits, but this proof was excluded by the chancellor.

Appellant contends that because the commissioners only assessed benefits and did not assess or intend to assess damages he is not concluded by the assessment roll. The trouble with his position here is that the statute expressly provides that, if no damages are assessed by the commissioners it is taken as finding that no damages in fact are suffered.

It appears from the evidence of these commissioners that practically everybody contemplated granting a right of way without compensation because of the great benefit that would flow to the land from the construction of this drainage system, and that the failure to assess damages for the taking of their right of way resulted in lowering the assessment 'of benefits to the various property owners. However mistaken the commissioners may have been about their duty in allowing compensation for the right of way, their failure to allow it under the statute amounts to a disallowance for anything under this item, and the failure of the property owner to propound his claim at the proper time, as provided in the statute, is an acquiescence by him in the act of the board in not allowing him such damages, and is a waiver of his right to compensation J;or such right of way.

It is contended by the appellant that to so hold would be to take from the appellant his property without due process of law, in violation of the state and federal constitutions; that it requires personal summons upon the defendant, where he is a resident of the locality, to constitute due process.

This is a proceeding in rem, and it is well settled that notice of the kind here provided is sufficient in proceedings in rem. The act does not impose a personal obligation upon the landowner, hut assesses the land itself with the benefits.

The chancellor’s judgment being in accord with these views, the judgment will he affirmed.

Affirmed.