Opinion
No. 3545.
October 26, 1928. Rehearing Denied November 15, 1928.
Error from District Court, Delta County; Newman Phillips, Judge.
Suit by the State of Texas for the benefit of the Delta County Levee Improvement District No. 2, against J. W. Hargrave and another, in which defendant named filed a cross-action. Judgment was entered for plaintiff, and defendant named brings error. Modified and affirmed.
The suit was brought in the name of the state of Texas in behalf and for the use and benefit of Delta county levee improvement district No. 2, for the collection of delinquent and unpaid levee taxes for the years 1921, 1922, 1923, and 1924. J. W. Hargrave and another were named as owners of the lands against which the taxes were assessed. The suit was filed on December 30, 1925. J. W. Hargrave only made answer to the suit. He pleaded general denial and the statute of limitations of two and four years. By way of cross-action he made the members of the commissioners' court and the three supervisors of the levee district parties defendant, alleging, in substance: (1) That the taxes assessed against his land were not equitably distributed; (2) that his property has sustained damages and failed to receive any benefits, and was therefore not liable for the taxes sued for, by reason of the manner in which the improvements were constructed; (3) that there was failure to fully complete the construction of levee improvements, and because thereof his property had suffered damages, and therefore he was entitled to judgment for such damages and the levy of a tax equitably distributed on all the lands to pay same. The prayer in the pleading was for relief from payment of the taxes and an injunction against their collection, and an injunction against the assessment and collection of similar taxes against his property in the future; for judgment for amount of damages alleged; and for mandamus. The supervisors of the levee improvement district and the members of the commissioners' court all made answer. The plaintiff filed a supplemental petition and exceptions in the nature of special demurrer and the bar of limitation to defendant Hargrave's cross-action. The special demurrers were sustained, and the defendant Hargrave duly excepted.
After hearing the evidence, the court entered judgment for the plaintiff foreclosing the tax lien with order of sale to satisfy the taxes for the years 1921 to 1924, inclusive.
The levee district was organized under the provisions of the levee district act of 1915, as re-enacted in 1918 by the Thirty-Fifth Legislature, 4th Called Sess., c. 25, commonly known as the Canales Act. The case is submitted in this court upon an agreed statement of facts, which is as follows:
"It is agreed by and between counsel for the parties hereto that the taxes sued on in this case were regularly assessed and levied by the Commissioners' Court of Delta County, Texas, for Delta County Levee Improvement District No. Two, Delta County, Texas, for the years stated in Plaintiffs' First Amended Original Petition, and that the amount of the taxes and the rate are the correct amounts due under the levies and assessments made by the Commissioners' Court at that time. That the defendant's property is located within the District, and that the delinquent tax list was made up by the Tax Collector of Delta County, Texas, for these years in the manner provided by law with the approval of the Commissioners' Court; that one copy was filed with the County Clerk, one copy sent to the Comptroller, and one retained by the Collector. That the delinquent tax list was advertised as required by statute, and that the ninety days notice required to be mailed to the defendants was mailed by the Tax Collector to the defendants more than ninety days prior to the institution of this suit."
R. D. Allen, of Sulphur Springs, for plaintiff in error.
C. C. McKinney and Ben D. Clower, both of Cooper, Goree, ODell Allen, of Ft. Worth, and Joel H. Berry, of Houston, for defendants in error.
It is believed that there was no error in sustaining the special demurrers to the cross-action. The fact, if it was a fact, that the property of plaintiff in error, situated within the boundaries of the levee district, may have been damaged by the manner of constructing the levee improvements, or damaged on account of not constructing the improvements in accordance with the adopted plan, would not ordinarily be a defense to a suit for enforcement of the tax lien. 2 Cooley on Taxation, p. 1280; 26 R.C.L. § 337, p. 378; 37 Cyc. 1162. And treating the cross-action as a distinct cause of action for damages, there was no error in this case especially in dismissing it, since such action was barred by limitation.
The validity of the Act of 1915 (Acts 34th Leg., c. 146) and the method of assessing and collecting taxes thereunder although not assailed in this appeal, have been expressly determined by the courts, and it is unnecessary to again discuss the same. Rutledge v. State (Tex.Sup.) 7 S.W.2d 1071.
The question of limitation, in bar of the taxes, however, has seemingly been determined in accordance with the plaintiff in error's contention, Rutledge v. State (Tex.Com.App.) 292 S.W. 164; and the Supreme Court has approved the holding in that case, Rutledge v. State, 7 S.W.2d 1071. The taxes for 1921, 1922, and 1923 were barred, but the taxes for 1924, becoming due on the 1st of February, 1925, were not barred at the time suit was filed December 30, 1925.
The judgment is modified in so far as to deny recovery for the taxes, penalty, and interest, and the foreclosure of tax lien therefor, for the years 1921, 1922, and 1923; otherwise the judgment is in all things affirmed. The plaintiff in error to recover costs of appeal.
On Rehearing.
In the original opinion appear inaccuracies of statement of plaintiff in error's cross-action, complained of by him. A ground of recovery was not pleaded to be "that there was failure to fully complete the construction of the levee improvements," nor "on account of constructing the improvements somewhat differently from the adopted plan." The cross-action sought compensation by way of damages for injury to plaintiff in error's "Hopkins county land," located across the Sulphur river from the levee district, in consequence of alleged undue and unnatural overflow of waters which was the immediate result of the following, among other causes, viz.:
"In the engineering and construction of this district levee improvement the waters of Brush Creek were diverted from its natural channel by means of the district levee crossing same directly and at right angles with such creek to the south and to Sulphur River for a distance of two miles from such channel, and such levee extending two miles north of such creek channel to the foot-hills."
The only ruling applicable to the cross-action is that there was no error in holding it barred by the statute of limitations.