In re Conservancy District No. 15 of the State

1964 OK 252, 398 P.2d 499, 1964 Okla. LEXIS 492
CourtSupreme Court of Oklahoma
DecidedNovember 24, 1964
DocketNo. 40605
StatusPublished

This text of 1964 OK 252 (In re Conservancy District No. 15 of the State) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Conservancy District No. 15 of the State, 1964 OK 252, 398 P.2d 499, 1964 Okla. LEXIS 492 (Okla. 1964).

Opinion

BLACKBIRD, Chief Justice.

This appeal involves Conservancy District No. IS, comprised of land in the Wagon Creek Watershed of Alfalfa and Grant Counties. Petitions for the formation of said District were filed in this court in February, 1958, and, in the same month, this court referred same, under the provisions of this State’s Conservancy Act (Tit. 82 O.S.1951 and 1961, §§ S31, 532, 541 et seq.) to the District Court of Alfalfa County (hereinafter referred to as the “trial court”) to be heard and determined. In April of that year that court entered its order for the hearing of the matter on May 26, 1958; and the requisite statutory notice thereof was given. After a hearing on the scheduled date, the trial court entered its order establishing the Conservancy District, with its principal place of business at Jet, Oklahoma. In June, 1958, said court appointed the District’s first Board of Directors, but various replacements occurred in the Board’s membership over the next more than four years, and the Board’s application for approval of a work plan — completed in March, 1961— was not filed in the trial court until February 4, 1963. That same day, the court set the application for hearing on March 18, 1963.

On March 18, 1963, protests to the approval of the plan were filed on behalf of some 130 owners of approximately 20,000 acres of land, and, at the Board’s request, the Court continued the hearing until March 27, 1963, in order to give it an opportunity to check the protests and the ownership and location of the land they purported to represent. The court agreed with the attorney for the protestants that any other owners who desired might file additional protests before the Court was to consider the matter again, but nothing was said in court that day about the right of any owners, who had already filed protests, to withdraw them during the interim.

Upon resumption of the hearing on March 27th, some additional protests were presented, but counsel for the Board also presented signed withdrawals of some protests that had previously been filed. After the parties had stipulated that the District contained only 11,480 acres, and it appeared that some of the protests, as well as some of the withdrawals, represented land outside the District (but in the watershed of Wagon Creek) it was agreed that these should be taken out of consideration; and the court declared a short recess in the hearing, for that purpose.

When the hearing was resumed later the same day, it appeared that if the protest withdrawals that the Board had obtained since the hearing was first scheduled, were filed and considered, the total number of acres represented by the remainder of the protests was some 460 acres less than 50% of the acreage included in the District. Over the objections of the protestants, the court allowed said withdrawals to be introduced in evidence, and ruled that the protests remaining were insufficient to obtain [501]*501dissolution of the District, as contemplated in Tit. 82 O.S.1951 and 1961, § 565.

Thereupon, the court heard the testimony of witnesses in support of the plan, including that of Mr. Fred Gray, Watershed Planning Engineer for the Soil Conservation Service. It was emphasized, in the cross-examination of some of these witnesses, that the work plan was adopted by the Board as early as May, 1961, hut none could explain why it was not filed with the Court until February, 1963. Mr. Metcalf, the Board’s President, testified that in so far as he was aware, there had been no change, or re-examination, of the plan since the Board adopted it. Mr. Gray testified, among other things, that he had had no occasion to review the probable cost of the structures involved in the plan since its adoption. The tenor of all the testimony, however, (hereinafter referred to in more detail) was that putting the work plan into effect would be both feasible and beneficial to the area. Protestants offered no evidence to the contrary.

In its order approving the plan, the court specifically found that it “and specifications filed herein, are for the best interest of the owners of the land * * ⅜” in the Conservancy District.

From said order and judgment, protestants have perfected the present appeal. We will continue our reference to their adversary as the “Board”.

In protestants’ first argument for reversal, they contend that the trial court erred in permitting the filing of withdrawals of protests “after the final date set for (filing) such protests.” They cite the statute, section 565 (Tit. 82, supra) as follows:

“All objections to said plan shall be in writing and be filed with said court clerk on or before the date of hearing fixed in said notice, provided, however, that the court, for good cause shown, shall have authority to extend the time for filing said objections in its discretion. If at said date the owners of a majority of the area of land in the said district shall file a protest and objection to the plan as a whole, then the court shall order an assessment * * * (which shall not be) more than twenty cents (20$) per acre on agricultural lands. Upon the collection of said assessments the court shall order said district dissolved.” (Emphasis supplied)

Protestants call our attention to the fact that there is no provision in the quoted statute for the withdrawal of any protest or objection. They also call our attention to the fact that on March 18, 1963, “the date of hearing fixed” in the Board’s Notice, the Court, though it accorded protestants the right to file additional protests during the period of the hearing’s continuance until March 27th, thereafter, no permission was given for the withdrawal of protests during that interim. They point out that if the tally of protesting landowners, as compared with those not protesting, had been made as of March 18th (as protestants say they had every right to assume that it would be), the Court would have been required, by the quoted statute, to have ordered the District dissolved.

Protestants’ argument does not give the comprehensive effect, we think it should, to the quoted statute. Despite their counsel’s present attempt to gain support for their position from the fact that the statute contains no mention of protest withdrawals, we notice that in his opening statement on March 27th, supra, he tacitly assented to withdrawals being considered, along with protests, and to the acreage they represented being deducted from that represented by protests, in determining whether the owners of a majority of the district’s land area were protesting the plan. We think the law contemplates— and it must be inferred therefrom — -that if the period for filing protests is validly extended, then, by the same token, the period for withdrawals of protests is also extended; and by the plain wording of the above quoted provision, it is the date, to [502]*502■which the extension has been granted, that the determinative, net, tally of protests is to be made. We therefore find no error, under the circumstances, in the action of the trial court in allowing the protest withdrawals to be presented as late as March 27, 1963, and, in its consideration of said withdrawals in arriving at its determination that the protestants did not represent a majority “of the area of land” in the District.

Under their Proposition II, protestants advance various reasons why they contend the trial court should have either rejected the Plan or referred it back to the Board for re-study.

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Related

Lebold v. Muskingum Watershed Conservancy District
198 N.E. 583 (Ohio Court of Appeals, 1935)

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Bluebook (online)
1964 OK 252, 398 P.2d 499, 1964 Okla. LEXIS 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-conservancy-district-no-15-of-the-state-okla-1964.