# Harnwell v. White > Supreme Court of Arkansas · October 19, 1914 · 115 Ark. 88 URL: https://www.frixlaw.com/law-library/cases/7807335 ## Case - **Full name:** Harnwell v. White - **Court:** Supreme Court of Arkansas - **Decided:** October 19, 1914 - **Citations:** 115 Ark. 88; 171 S.W. 108; 1914 Ark. LEXIS 115 - **Precedential status:** Published - **Opinion:** Concurrence by McCulloch - **Judges:** Adhere, Expressed, Hart, Kirby, McCulloch, Original, Smith, Stands, Therefore, View - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7807335 ## Opinion text CONCURRING OPINION. McCulloch, C. J. (3-1) I agree entirely with the conclusion reached in this case by the majority of the judges', but I do not share with them all the views expressed in the opinion. I think the order of reversal, with directions to consolidate the different cases against appellant and render a decree for the amount of assessments due without penalty or attorneys ’ fees, is correct. The opinion states, however, in the most emphatic language, that this result can not be obtained on the ground of estoppel, and tbe rule is laid down broadly that tbe owner of property in a district illegally organized can not estop himself to dispute the validity of such organization. That is the part of the opinion which I do not agree to, and I think that the decision reversing the case is wrong unless it can be put on the doctrine of estoppel. Indeed, I -am unable to discover any other tangible grounds in the opinion. The instrument executed by appellant and others is not a mortgage, and, if it was so treated, the parties in interest were not before the court unless it be held that there was a de facto organization of the district which authorizes the commissioners thereof to sue. I do not view with favor any rule which applies the doctrine of estoppel to mere silence of a property owner with respect to the illegality of an improvement district; but where, as in this case, one or more property owners have done some affirmative • act which! induces persons to spend their money or surrender substantial rights on the faith of that conduct, there is no reason why the doctrine of estoppel should not apply. In the present case there was such an affirmative act of the highest character; for appellant, by a solemn contract, expressly agreed that she would not contest the validity of the district but would pay the assessments, and the bonds of the district were sold and the proceeds thereof used in constructing the improvement upon the faith of that agreement. I think the authorities cited in appellee’s brief abundantly sustain the doctrine of estoppel as applicable in a case of this sort; and in the case of Matthews v. Kimball, 70 Ark. 451 , all of the judges (both those constituting the majority and the dissenting judges) agreed that the doctrine of estoppel would apply to one who had done some affirmative act in inducing the formation of the district. In Whipple v. Tuxworth, 81 Ark. 391 , this court held that there may be a de facto improvement district without de jure existence, and that such organization could sue and be sued; and the court applied the general doctrine that “a corporation de facto may sue and be sued, and, as a rule, may do whatever a corporation de jure can do, and no one hut the State can call its existence in question.” That was the same district which was declared void on account of jurisdictional defects in Board of Improvement v. Cotter, 71 Ark. 556 . Of course, the court did not hold that a property owner could not dispute the validity of his assessments on account of the illegality of the district, hut decided that an illegally formed district had a de facto existence which authorized it to sue. (5) Now, in this case, as in the one cited, the district had a de facto existence and the hoard of commissioners had the right to sue; and appellant has, by her express agreement, estopped herself to deny the validity of her assessment. But the estoppel is limited by the express terms of the agreement. Appellant only agreed to pay the assessments. She did not agree to pay any penalty or attorney’s fees. And no one was injured by her conduct except to the extent of the assessments which she expressly obligated herself to pay. No one had any vested -interest in the statutory penalty and attorneys’ fees, and those items can not be enforced on the doctrine of estoppel. The equities of the case are completely satisfied by compelling the plaintiff to make good her obligation, and this the court has done in its order of reversal. Mr. Justice Smith shares with me these views. McCulloch, C. J., (on motion to modify the opinion). The majority of the court now approve the concurring -opinion. It thus becomes the law -of the case, and to that extent the original opinion is modified. The decree of the chancery court is therefore reversed and the cause is remanded with directions to consolidate the actions against appellant -and render a decree against her for the amount of the assessment and costs of -one action, without penalty or attorney’s fees. Hart and Kirby, J. J., adhere to the view-s expressed in the original opinion, and therefore concur in the judgment, but not in the opinion of the court as it now stands. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7807335. Public record. Not legal advice.