The opinion
Hart, J. (dissenting). The complaint alleges that there are 29,000 acres of land in the district subject to assessment and that the roads to be built are twenty-four miles long. The complaint further alleges that from eight to ten miles, or even more, of the road which is contemplated in the improvement under said special act is, and was, covered with water varying from a few inches to ten or more feet, and that it is a physical impossibility to build said proposed improved road, or any kind of a road, along said route, until the water is drained off with ditches or levied off by embankments. .
This allegation'is not a mere conclusion of law, but is the averment of a fact. Ten miles is a very substantial portion of a contemplated road improvement of twenty-four miles; and the attempt to construct a portion ten miles long where the ground is covered by water from a few inches to ten feet deep, coupled with the allegation that the construction of the improved road would not drain the water off, would amount to a confiscation of the land of the property owners.
The principle upon which special assessments for local improvements are sustained is that the lands upon which the assessments are levied receive a peculiar benefit equal to or in excess of the cost of the improvement and. that, therefore, the land owners do not pay anything in excess of what they receive by reason of such improvement. It is true the language of the complaint is in general terms, but it is nevertheless the statement of a fact and not a mere conclusion of the pleader. The court might have treated the demurrer as a motion to make the complaint more definite and certain, if deemed defective, but it should not have sustained the demurrer. The law applicable to this branch of the case is clearly stated by Chief Justice Hill in Coffman v. St. Francis Drainage Dist., 82 Ark. 54 , as follows: “The complaint is drawn in general terms, and should have been met by a motion to make more specific and certain, if more certainty was desired. But the demurrer having admitted these general allegations, practically charging confiscation of property, and there being special denial of benefit, the court is constrained to believe that it .is safer and more consonant to the justice of the case to overrule the demurrer and let a hearing be had as to whether there has been an abuse of the legislative discretion in charging these plaintiffs with the expense of a public improvement which would not benefit them, but injured them, thereby amounting to a confiscation of their property. ’ ’ If nearly one-half of the road can not be improved before the water is drained off the ground, it is obvious that the expenditure of a large sum- of money in a useless attempt to construct the improvement would not and could not confer special or peculiar benefits to the lands within the district, but would amount to a confiscation of the lands to the extent that such useless’ expenditure was made. The allegation is of a matter which is capable of ascertainment by proof, and, if true, it is certain that -the Legislature to that extent abused its discretion in providing for the improvement. The complaint sets forth sufficient matter of substance for the court to proceed upon the merits of the case; and to advise the defendant of the facts upon which the plaintiff proposes to rely and will seek to prove.
In the case of Coffman v. St. Francis Drain. Dist., 83 Ark. 54 , the court held: “While the Legislature, creating a drainage district may provide what lands shall be assessed for improvement, and the extent of such assessments, the courts will interfere when the act of the Legislature is such an arbitrary abuse of the taxing power as would amount to a confiscation of property without benefit. ’ ’
Therefore Judge Wood and the writer respectfully® dissent.