The opinion
Hart, J., (dissenting). My dissent in this case is principally based upon a question which was not considered in the majority opinion. Therefore, in order that my position may be understood, it becomes necessary for me to write a dissenting opinion.
It seems to me that the construction of the lateral ditch between the farms of Phillips and Walt by the drainage district for the purpose, of better taking care of the drainage on the two- places precludes Phillips from maintaining the suit in question. This, we think, results from the undisputed evidence which I shall proceed to discuss, after laying down the principles of law which I think should govern. •
It is well settled that the Legislature has the power to -create drainage districts for the purpose of reclaiming or improving swamp and overflowed lands by ditches and drains and levees. -Su-ch districts may be invested with all the necessary authority to construct and maintain whatever main ditches or laterals may be necessary to accomplish such object and to raise money to pay for the same by assessments on the lands to be benefited thereby.
More than ten years ago a drainage district was organized for the purpose of reclaiming and improving the lands within its boundary. Both the Walt and the Phillips farms were included in the district. After the main ditch or canal was dug, it was thought that part of the lands could be drained better by constructing a lateral ditch between the farms of Walt and Phillips. There was a public road between the two farms. The farm of Walt was on the east side and that of Phillips was on the west side of this public road.
According to the testimony of one of the commissioners of the-drainage district, all of the dirt taken out of,, the lateral ditch was piled on the east side, because of the drainage of. the lands lying on the west side of the lateral. The public road was thus built up about a foot higher than it was before the lateral ditch was constructed.
" J. P. Walt was also one of the commissioners of the drainage district.- According to his testimony, before the main canal running east to Wabbaseka Bayou, on the north side of his farm, was finished, they dug' a lateral between the Phillips and Walt farms three-quarters of a mile long. The lateral connected at its north end with the main canal. The lateral was sixteen feet at the top, twelve feet wide at the -bottom, and five feet deep. The whole country around there drained southeast.
According to the testimony of Clayton P. Gould, an engineer, the main canal of the drainage district runs along the north boundary line of the Walt lands and empties into the Wabbaseka Bayou. It is -a large canal, twenty feet wide at the bottom, and has plenty of fall. The lateral between the Walt and Phillips lands lies between the public road and the Phillips land and connects with the main canal on the north.
••Prank W. Berry, a farmer, who has also studied civil engineering, was a witness for appellee. He made an examination of the conditions at the request of the appellee. The public road between the Walt and Phillips farms is eighteen inches higher than the lands adjacent to the road on the Phillips farm. There was a ditch fifteen or twenty feet wide running north on the west side of -the road. Brown’s Bayou goes into this canal, on the land of Phillips.
J. H. Bryson was another witness for appellee. According to his testimony, before the lateral was constructed there was a bridge across the public road, ten or fifteen feet wide, and Brown’s Bayou flowed between the opening from -the land of Phillips on the west side of the road to that of Walt on the east side thereof. There was no flow of water in Brown’s Bayou, except in the rainy season, but it flowed in the same channel.
J. W. Bellamy, another witness for appellee, testified that the bridge was torn up when the lateral .was dug, and that the road has been filled .since that time.
W. J. Clary, another witness for appellee, testified that Brown’s Bayou plays out, so far as having any bank, somewhere on the Phillips place. From there on the water simply follows the low places in the surface of the land. A good deal of water from Brown’s Bayou flows into the lateral canal. Dirt .out of this canal made the public road between the Walt and Phillips farms. The road operates as a levee, and is a foot higher than it was before the construction of the lateral.
C. J. Collier, another witness for appellee, testified that he had known Brown’s Bayou and the territory where it was located all of his life. The well-defined •banks of Brown’s Bayou stop after entering the Phillips farm. It then scatters; just flattens out. It crossed the road between the Phillips and Walt places, not with well-defined banks, but with the depression in the slope of the country; but it has followed the same channel all the time.
Other witnesses testified that two small ditches were cut on the farm of Phillips after the lateral was dug in order to carry the water from Brown’s Bayou into the lateral.
Other testimony tended to show that the lands in the depression or swale caused by Brown’s Bayou on part of the land of Phillips was cultivated. '
While the evidence for appellant tends to show that the lateral was adequate to carry off the water as planned, the evidence for appellee tends to show that a lateral built through the land of Walt in a southeasterly direction would have given better drainage than the lateral in question. But, whether or not the lateral was located upon the best, cheapest and most available route, was a matter addressed to the judgment of the drainage commissioners at the time the lateral was constructed. It was the duty, of the commissioners to locate the drains upon lines that they deemed best to accomplish the object sought, .and their determination in the matter is not the subject of collateral attack in a proceeding like this.
The Legislature may authorize that natural streams may be straightened, widened, and deepened, where, in the judgment of the drainage commissioners, the proposed system of drainage can be more effectively accomplished in that manner. Terre Noire Dist. No. 3 v. Thornton, 93 Ark. 332 .
It follows that "the course of the natural flow of the water need not be followed and that the fact that the route intersects natural watercourses does not make it invalid. In assessing the benefits, the commissioners of the drainage system necessarily took into consideration, the change of the natural flow of tlae water by the construction of the ■ lateral in question and the advantage and disadvantage it would be to the lands bordering upon the lateral.
The result of my views is that it was the duty of the drainage commissioners to .select the most available and practical route for the drainage ditches, and that, having decided that a lateral built between the Walt and Phillips farms and extending north to the main canal, providing for Brown’s Bayou to flow into it, was the most available route, the landowners have no right, more than ten years afterwards, to ’change that route and readopt the old drainage.
It will be remembered that the dirt excavated in digging the lateral was thrown into an embankment which, although it became a public road, constituted a part of the drainage system. Hence appellee had no right to cut through, it or in any other way to materially interfere with the system of drainage adopted by the drainage commissioners, and; if he wrongfully did so, appellant had the right to. protect his lands by constructing the levee in question on his own lands.