Hill v. State, 4 Sneed, 443; State v. Shelby- caused by drains and ditches and embankville, 4 Sneed, 177. So while it must be conceded that the municipality has full power over its streets and can change the grades thereof, and likewise has full power to regulate the manner in which railroads shall cross these streets, and can require crossings to be altered and reconstructed, nevertheless none of these considerations are determinative here. [4] Although the town of Clinton might have required the Southern Railway Company to change the level of this crossing over Jacksboro road or street, it has not seen proper to attempt any such thing. The municipality has filled up the street under the trestle, but so far as this record shows, has been content that the trestle remain as it was before the level of the road was changed. The railway company has done nothing whatever to its trestle, and it was without power to interfere with the action of the municipality in raising the level of this road. Under these circumstances, we are of opinion that the railway company is not liable to indictment for obstructing the public highway. We think the obstruction was caused by the act of the town of Clinton and the town of Clinton is liable to indictment if any one is. Ordinarily one is not civilly liable for a nuisance caused or promoted by others over whom he has no control; nor is one bound to go to expense or litigation to abate such a nuisance. An owner of land upon a declivity who has no control of the property lying above his own, nor over the people who occupy it, is not liable to the owner of the property next below his own for damages, arising from offensive matter thrown, without any fault of his, upon the upper lot and flowing naturally across his premises onto the lot below. Brown v. McAllister, 39 Cal. 573. Where a turnpike company built a drain into which an owner of land through which it flows, without the knowledge or consent of the company, turned foul matter, causing a nuisance and damage to another upon whose premises the drainage was cast, under these circumstances the landowner contributing the foul matter to the drain was held to be alone liable for the resulting damage. Magee v. Penn., etc., R. Co., 13 Pa. Super. Ct. 187. Likewise it was held that where a railroad company had constructed a ditch along its track through which polluted water flowed into a pond on adjacent premises, depositing garbage and filth on said premises, and creating a nuisance, the railroad company was not liable to the owner of the premises for resulting damages where said pond was the natural outlet of the water originally flowing through the ditch, and the increase of flow after the building of the railroad and ditch and the pollution of the water was ments on the lands of others over which the company had no control. Brimberry v. Savannah, etc., R. Co., 78 Ga. 641, 3 S. E. 274. We think the rule to be deduced from the foregoing cases is that no one is civilly answerable for a nuisance, even though that nuisance be immediately promoted by his own property, if this result is occasioned by the act of others, over whom he has no control, so affecting his property as to make it an agency contributing to the nuisance. In other words, the proximate cause of every nuisance must be ascertained in fixing liability therefor, and when one's property is, by the act of independent third parties, made the instrumentality of a nuisance, such act of such parties is the proximate cause, and the innocent owner of the property is not responsible. The same principle would apply to a criminal prosecution of a nuisance. One who so uses his property as that it becomes a nuisance to the public is subject to indictment and conviction. If his use thereof injures an individual, he is subject to an action for damages. In neither case is the defendant responsible for a nuisance not proximately resulting from some act or omission of his own with respect to his property. In a South Carolina case, the defendant was indicted for a nuisance occasioned by an overflow from the head of a millpond which he maintained. The proof showed defendant's dam had been erected in the stream for many years without causing an overflow or damage to the neighborhood. Landowners undertook to deepen and alter the channel of the stream above the millpond for drainage purposes, and there was evidence that, as a result of this work, large quantities of sand and débris came down and accumulated at the head of the pond, and that the obstruction thus formed occasioned the overflow. The Supreme Court of South Carolina reversed a judgment of conviction, and, among other things, said: "While it is true that the defendant would be liable if his obstruction of the creek, by his pond and dam, was in itself the cause of the injuries complained of, yet, if the consequences are to be attributed to the acts of others, so affecting his property that it becomes a public nuisance, it would not appear consistent with justice or propriety that he should be held to responsibility. "The mere erection of the mill and dam on his own land was no nuisance; and if results, though injurious, yet not proximate and direct, followed, because set in motion by the acts of others, either in cutting the ditch, which by the accumulation of sand choked the channel and raised it higher than the adjacent banks, thus forcing the water over the edges of the ditch or banks, and collecting it in pools or holes, or from the increased cultivation in the neighborhood, it would seem that the consequences are to be referred to an agency operating on the property of the defendant, for which he should not be liable, because not employed by him. They were not proximate or direct, in the legal sense in which those terms are understood. He must be held accountable for the unlawful effects which naturally or directly proceeded from his acts.' State v. Rankin, 3 S. C. 438, 16 Am. Rep. 737. So in this case, we think that the act of the town of Clinton in raising the level of this street was the proximate cause of the obstruction. Until the railway company is directed by the municipal authorities to reconstruct its trestle, the maintenance thereof at its present level is not unlawful. The nuisance has resulted from the act of the municipality, and plaintiff in error is not sponsible for the same. to recover, on behalf of a drainage district, an 5. CONSTITUTIONAL LAW (§ 74*) - JUDICIAL POWERS ENCROACHMENT ON EXECUTIVE. Under the special act creating the St. Francis drainage district (Acts 1905, p. 444), authorizing the district board to elect a district engineer for the term of two years, the courts, while they may prevent illegal action by the board or the engineer, cannot enjoin the board from employing a certain engineer who had been re-elected, since that would be usurpation by the courts of the power to oust such engineer from his place. The evidence preponderates against the verdict and judgment below, and the case will be reversed. SEITZ et al. v. MERIWETHER et al. (No. 144.) (Supreme Court of Arkansas. 1. APPEAL AND ERROR (§ 80*) CREE-ACCOUNTING. Oct. 5, 1914.) FINAL DEIn a suit by taxpayers of a drainage district, a decree requiring the attorney of the district to repay a fee received by him in excess of the amount allowed by statute, permanently enjoining the board from employing the one who had been acting as engineer of the district, and referring to a special master the accounts between the district and the contractors, with instructions to report in accordance with the directions of the court, is final and appealable as to the attorney and the engineer, but not as to the contractors, the rule being that a decree which disposes of the matters in issue between the parties and gives all the consequential directions necessary to carry it into execution, is final, but if such directions be not given, though the decree may adjudicate the right or interest in controversy, it is not final. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432. 433, 450, 456, 457, 494-509; Dec. Dig. § 80.*] 2. DRAINS (§ 18*) - DISTRICTS FEES-STATUTORY PROVISIONS. ATTORNEYS' Under section 21 of the special act organizing the St. Francis drainage district (Acts 1905, p. 444), authorizing the employment of an attorney to enforce the payment of delinquent taxes, and also to bring or defend any suits, but providing that in all cases the fees of such attorney should not exceed in any one year a specified sum, the limitation of the fees applies to the collection of taxes as well as to the bringing of suits. [Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. § 18.*] 3. DRAINS (§ 19*) - DISTRICTS ATTORNEY'S FEES-RECOVERY OF EXCESS. The attorney is bound to know the limitations on the authority of the board, and cannot defeat a suit to recover the excess fees paid to him on the ground that the payments were voluntary, even though they were reasonable and paid in good faith on disinterested legal advice. [Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. § 19.*] 4. DRAINS (§ 20*) — DISTRICT SUITS. TAXPAYERS' The remedy given by Const. 1874, art. 16, § 13, authorizing any citizen of any county, city, or town to institute a suit to protect the inhabitants against the enforcement of illegal exactions, will be extended to the taxpayers in drainage districts, and they will be permitted McCULLOCH, C. J. The St. Francis drainage district, covering certain territory in Clay and Greene counties, Ark., was created by a special statute enacted by the General Assembly of 1905, for the purpose of constructing drainage ditches and building levees in the territory described. The act named five directors, and provided for the appointment of their successors by the Governor, and constituted the board a body corporate with authority to cause the improvement named above to be made and to do the other things necessary to carry forward the work. A section of the statute with reference to the employment of an attorney reads as follows: "The board of directors or the president thereof, may engage the services of an attorney for the purpose of enforcing the payment of delinquent taxes, and an attorney may also be employed by the board for the purpose of bringing or defending any suit which may be instituted by or against the drainage district, but in all cases of fees to be paid such attorney, shall be agreed upon in writing at the time of employment, and shal! not exceed in any one year the sum of two hundred and fifty dollars." Section, 21, Act 172, Session of 1905, p. 444. The statute further provided that the board should effect an organization "by electing a president, a secretary and a treasurer, who shall also be collector, and an engineer, and prescribe the duties and fix the salaries of said officers, not to exceed the amounts fixed by law" (section 4) and further provided that said officers should be elected for two years at the first annual meeting of the board, and biennially thereafter at regular meetings. The board was duly organized, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes and W. E. Spence, an attorney at law, in | against the attorney, Mr. Spence, for the Clay county, was employed as the attorney $500 paid to him; and against the engineer, for the district, and J. D. Mitchell was elected as engineer. The board entered into two written contracts with A. W. Wills & Sons, one for the cutting of a ditch, and the other for the building of the levee as authorized in the statute, and the work was proceeded with pursuant to these contracts. Dissatisfaction subsequently arose on the part of two members of the board, and also on the part of many property owners and taxpayers in the district, concerning the operations of the district, the performance of the contract by the contractors, the method of paying the contractors, and the amounts so paid, and various other things which became the subject-matter of acute controversy. These differences resulted in the present action, instituted by two dissenting directors and several taxpayers against the other members of the board, the contractors, the engineer, and the attorney. In the complaint it is alleged that the contractors were making overcharges under the contract, and were being paid in excess Mr. Mitchell, for sums paid to him in excess [1] The first question which arises is whether the decree rendered by the court, or any part of it, is final and appealable. It will be noticed from the above recital that that: issue between the parties and gives all the con"A decree, which disposes of the matters in sequential directions necessary to carry it into execution, is a final decree; but if such consequential directions be not given, though the decree may adjudicate as to the interest or right in controversy, it is not final." of the contract price; that the stipulated the court did not award any amount for or The court merely percentage of estimates were not being re- against the contractors. served in accordance with the terms of the made certain findings and referred the accontract, and also that there are various oth-counts to a special master for report. In the early case of Crittenden, Ex parte, er irregularities and inaccuracies in the account with the contractors. It is also alleg-10 Ark. 334, the court laid down the rule ed that the engineer had fraudulently approved the estimates of the contractors, and had also been guilty of fraud in padding his accounts for salaries of the assistant engineers in his employment. The complaint alleges further that the attorney, Mr. Spence, had been allowed $500 as fees in excess of the amount authorized by statute. The prayer of the complaint is that the board of directors be restrained from paying the contractors any further sums of money on account of the levee; that an accounting be had as to the amount of work done by the contractors and the amount paid by them in accordance with the contract, and an accounting be had of the moneys paid to Mitchell, the engineer; that Spence be compelled to refund the excessive sum of $500 paid to him; that the board be restrained from further employing Mitchell as the engineer; and that judgment be rendered in favor of the district for whatever sums are found to be due from the contractors, from Mitchell, and from Spence. All the defendants answered, in substance denying the allegations of the complaint with respect to the irregularities and errors in the account of the contractors or the allow ances to them, and as to the misconduct of the engineer, and the unlawful payment of excessive fees to the attorney. The case was heard by the chancellor upon the pleadings, the documentary evidence, and the depositions of witnesses, and there was a finding by the chancellor in favor of the contractors on some items and against them on others; The test announced in that case has never been departed from by this court, so far as we know, but has been reiterated in numerous later cases. Haynie v. McLemore, 12 Ark. 397; Shegogg v. Perkins, 34 Ark. 117; Davie v. Davie, 52 Ark. 224, 12 S. W. 558, 20 Am. St. Rep. 170; Cohn v. Huffman, 52 Ark. 436, 12 S. W. 1071; Heffner v. Day, 54 Ark. 79, 14 S. W. 1090; Batesville v. Ball, 100 Ark. 496, 140 S. W. 712, Ann. Cas. 1913C, 1317. In Davie v. Davie, supra, Chief Justice Cockrill, speaking for the court, said that "a judgment in equity is understood ordinarily to be interlocutory when inquiry as to matter of law or fact is directed preparatory to a final adjudication of the rights of the parties," but that, quoting from the Supreme Court of the United States in Beebe v. Russell, 19 How. 283 [15 L. Ed. 668], "where the decree decides the rights to the property in contest and directs it to be delivered up, or directs it to be sold, and the complainant is entitled to have it carried into immediate execution, the decree must be regarded as final to that extent, although it may be necessary for a further decree to adjust the account between the parties." In the same case it was also said that an appeal will be allowed "where a distinct and severable branch of the cause is finally determined, although the suit is not ended." employés of such public agencies are compelled to take notice of the limitations upon the authority of the governing bodies; and when they receive fees in excess of the amount authorized by statute, they cannot defend a suit for the recovery thereof on the ground that the payment was voluntary. McConnell v. Brick Co., 70 Ark. 568, 69 S. W. 559. [4] It is urged with much earnestness that the court could not assume jurisdiction in a suit of this kind at the instance of the taxpayers or dissenting directors, but we are of the opinion from the authority of the cases cited in appellees' brief that the jurisdiction of a court of equity is complete to grant relief under the circumstances set forth in the pleadings and established by the proof in this case. While there are no specific charges of fraud against the directors themselves, it is alleged that they made the excessive payment to Mr. Spence and have refused to bring suit to recover the sum, and this, we think, is sufficient to give the court jurisdiction to entertain the complaint of the property owners in the district. it was unjustifiable, and the fact that it was made in good faith does not afford any reason why the attorney should not be ordered Applying those tests, it is clear that the to pay it back to the district. The question appeal of the contractors is premature and of recovery of money voluntarily paid does must be dismissed, but that the decree not apply to officers and servants of a pubagainst defendant Spence and also the decree lic agency like a municipal corporation or against defendant Mitchell were final and improvement district. The officers and the appealable; the decree against the former being for a definite sum of money and enforceable, and against the latter enjoining him from serving any further as engineer of the board and enjoining the board from employing him. The further decree against Mitchell concerning his accounts with the board, and referring the same to a master for an accounting, was not final, and cannot be reviewed under the record now before us. [2] The appeal of Spence calls for a construction of the statute and the determination of the question whether or not he was entitled to collect the additional sum of $500 for his services as attorney of the board. He was first employed at a salary of $250 per annum as the attorney for the board to rep resent the board generally and institute and defend all necessary suits. Subsequently he was formally employed to institute suits for the collection of taxes, and was allowed the additional sum of $500. The contention is that the section of the statute quoted above contemplates the employment of two attorneys, or rather two distinct employments of an attorney to act in separate capacities, and that the limitation prescribed by the statute does not apply to both. We are of the opinion, however, from a careful perusal of the statute, that this construction is unsound, and that the contention cannot be sustained. It is manifest that the Legislature intended to give authority to the board to engage the services of one or more attorneys for the purpose of bringing or defending suits and for the purpose of enforcing the payment of delinquent taxes; but the whole amount to be paid for attorney's fees was limited to the sum of $250 per annum. The board has no authority to expend more than that sum during any one year, whether one or more attorneys are employed for all the purposes named in the statute. The payment to Mr. Spence was therefore unauthorized, and the court was correct in ordering him to pay the amount back to the treasurer of the board. The controlling principle is stated by Chief Justice English in the case of Town of Jacksonport v. Watson, 33 Ark. 704, as follows: "A court of equity may, at the suit of property holders or taxable inhabitants of a municits officers from making an unauthorized approipal corporation, restrain the corporation and priation of the corporate funds. This is so because the corporation holds its money for the corporators, the inhabitants of the town or city, to be expended for legitimate corporate purposes, and a misappropriation of these funds is an injury to the taxpayer, for which no other remedy is so effectual or appropriate as an injunction." We held in Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380, that a chancery court would entertain jurisdiction upon a complaint of taxpayers to require a public officer to pay back fees illegally collected. It is true there is a provision in the Constitution to the effect that "any citizen of any [3] The chancellor found that the fee county, city or town may institute suit in charged was very reasonable, when measur- behalf of himself and all others interested, ed by the standard of fees generally charged to protect the inhabitants thereof against the by attorneys for similar services, and we are enforcement of. any illegal exactions whatthoroughly satisfied that that finding is cor- ever" (section 13, art. 16, Constitution of rect. There is no evidence of fraud or bad 1874), and it has been held by this court that faith in making the charge, for it appears the provision gives authority to a taxpayer that the question of construction of the stat- to prevent the illegal disbursement of moneys ute was submitted to a disinterested attor- by counties and municipalities. That proviney of high standing, who advised the board sion of the Constitution does not include imthat they were authorized under the stat-provement districts, but the principle is the ute to pay this additional sum to Mr. Spence. same, and it is the duty of the court of equiBut we are quite clear in our view that the ty to mold a remedy for taxpayers whose instatute does not authorize this payment, and terests are involved in the operation of im provement districts. Our conclusion is that the suit was properly brought to require Mr. Spence to refund the money illegally paid to him and to reach all other matters set forth in the complaint which involved the collection and distribution of funds of the district. In all cases where the district itself had the right to maintain an action to prevent the misappropriation of funds or to recover misappropriated funds, the taxpayers had a complete remedy in the event of the refusal of the board to institute such an action. [5] The only remaining question in the case presented for our determination is whether or not the decree enjoining defendant Mitchell from further performing duties as engineer, and restraining the board from continuing him in that work, is correct. Without undertaking to decide at this time whether the charges against Mitchell were sustained by the proof, we are of the opinion that the court exceeded its power in undertaking to restrain the board from continuing Mitchell in his place as engineer. That amounted to ousting Mitchell from his place, whether it be called an office or an employment. The statute, as already shown, authorized the board to elect an engineer, and the term of his incumbency was definitely fixed by the statute. This authority was reposed in the board, and it would be an usurpation of authority for the court to attempt to exercise the power of appointment or removal. The court has the power to prevent illegal acts of the board or engineer, but not the power to oust either of them from office. The decree against defendant Spence is therefore affirmed. The decree against Mitchell and the board, restraining the board from retaining Mitchell as engineer, is reversed and remanded, with directions to dismiss the complaint as to that feature of the case. The appeal of Mitchell and the appeal of the contractors, A. W. Wills & Sons, concerning the state of the accounts between them respectively and the board, are dismissed as premature. GERMAN NAT. BANK v. YOUNG. (No. 120.) (Supreme Court of Arkansas. July 13, 1914.) 1. RECEIVERS (§ 199*)-COMPENSATION-PerSONAL EXPENDITURES. Where a receiver's report showed that he had used $2,034.65 for his personal benefit, and his account was passed and allowed under an agreement that he should receive $4,000 for his services, the passing of the account was not res judicata that he was entitled to the $2,034.65 in addition to the $4,000, but the court should have charged the amount so used against the allowance for his fees. [Ed. Note. For other cases, see Receivers, Cent. Dig. § 391; Dec. Dig. § 199.*] 2. RECEIVERS (§ 92*) OPERATION OF BUSINESS-LOSSES. Where a receiver, who was a skilled mine operator, was authorized to operate a coal mine belonging to the estate if he thought it to be to the best interest of the estate, and a loss Where a receiver, in order to operate a mine, borrowed money from a bank, and also incurred other indebtedness in operating the mine, it was improper for him to pay such other indebtedness in full and only a percentage of the money borrowed from the bank, but he should have paid the claims for money used in operating the plant pro rata, if there was not enough to pay it all, and was therefore bound to pay the balance of the bank's debt before other disbursements or distribution was made. [Ed. Note. For other cases, see Receivers, Cent. Dig. §§ 283-292; Dec. Dig. § 155.*] 4. RECEIVERS (§ 199*)-Expenditures-Book KEEPING. Where a bookkeeper kept a receiver's books as a "side line" and received $15 a month during the time a mine was in operation, which was all that the service was worth, an allowance of additional compensation for keeping the books was improper. [Ed. Note. For other cases, see Receivers, Cent. Dig. § 391; Dec. Dig. § 199.*] 5. RECEIVERS (§ 158*)—CLAIMS-ALLOWANCE FOR SERVICES. Where the receiver of a mining corporasuperintendent of the mine for two months be tion was a capable mining man, and had been fore it passed into the hands of a receiver, he was entitled to a preferred claim for his salary for such term amounting to $150 per month, as provided by Kirby's Dig. § 4057. [Ed. Note. For other cases, see Receivers. Cent. Dig. §§ 301-306; Dec. Dig. § 158.*] 6. RECEIVERS (§ 198*)-COMMISSIONS-SALE OF PROPERTY. Where $4,000 had been agreed on as a reasonable sum to be allowed as compensation for a receiver's services, and the evidence showed that that was reasonable for all services rendered by the receiver, the court erred in allowing, in addition to such amount, a commission of $1,540.80 on the sale of the property. [Ed. Note. For other cases, see Receivers, Cent. Dig. 88 392-396; Dec. Dig. § 198.*] Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor. Judicial settlement of the accounts of R. A. Young, as receiver of the Hiawatha Smokeless Coal Company. From a judgment allowing the account and overruling exceptions filed by the German National Bank, it appeals. Reversed and remanded. In April, 1909, the Hiawatha Smokeless Coal Company, operating a coal mine in Scott county, was by the chancery court, on the application of some of its stockholders, the company being insolvent, placed in the hands of a receiver to be wound up and its assets distributed. The complaint prayed that the same be managed under the orders and direction of the court, and that the receiver be ordered to borrow as much money as was necessary to protect the property; For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |