Beck v. Biggers

• Decision Date: 25 March 1899
• Citation: 50 S.W. 514,66 Ark. 292
• Parties: BECK v. BIGGERS
• Court: Arkansas Supreme Court

50 S.W. 514

66 Ark. 292

BECK v. BIGGERS

Supreme Court of Arkansas

March 25, 1899

Appeal from Sharp Circuit Court JOHN B. MCCALEB, Judge.

Judgment reversed and cause remanded.

Carmichael & Seawel, for appellant.

In condemnation proceedings the statute must be closely followed. 1 S.W. 216; 96 Mo. 39; 14 P. 140; 13 S.W. 1027. The petition should have specified the place of beginning, the intermediate points and place of termination of the road; and none of these places are adequately described by saying they are "near" to a certain place or thing. Sand. & H Dig. § 2818; 34 Ark. 224; 4 Ore. 47; 47 N.W. 633; 50 Ind. 583; 47 Mich. 460; 58 Ind. 64; 19 Hun, 263; 73 Ind. 455; 59 Ark. 344; End. Int. Stat., § 435; 9 Am. & Eng. Enc. Law, 370. The giving of the required notice to landowners must appear from the report of the viewers. Sand. & H. Dig § 2823; 44 N.W. 677; 42 N.W. 814; 10 R. I. 461. The description in the report should conform to that in the petition. 49 Cal. 672; 37 A. 1111; Sand. & H. Dig. § 2824; 50 N.E. 118; 58 Ill. 422; 109 Ill. 379. The viewers should have taken with them chain-carriers, and markers are required by statute. 43 N.W. 648; 41 N.W. 885; 7 A. 772. All the landowners concerned must be legally notified before a valid establishment of a road can be made. 32 Mich. 43; 7 Hun, 17; 18 Kan. 129; 96 Mo. 39; 14 P. 140. The mere presence of appellant, without any legal notice, was no waiver of same. 13 S.W. 1027; 42 S.W. 814; 16 Wis. 519, 522; 9 Am. & Eng. Enc. Law, 372; 43 S.W. 35. Relatives of the principal petitioner are not "disinterested" viewers. Sand. & H. Dig. § 2827; 23 Ill. 645; 44 Ind. 356; 11 Me. 473; 59 Me. 262; 53 Me. 387; 105 id. 225; 6 Am. & Eng. Enc. Law, 617; 36 A. 554; 19 A. 855; 50 Ind. 537; 31 A. 74.

Sam H Davidson, for appellees.

If appellant wished to attack the proceedings, he should have remained away and quashed them by certiorari. 12 S.W. 570; 42 S.W. 127. His appearance before the viewers waived notice. 30 Kan. 581; 35 Ark. 276. Their relationship to one of the parties did not disqualify the viewers. 47 Ark. 441. It is sufficient if the order describes the road with sufficient certainty to locate it. 3 Ark. 18; 30 Ark. 640; 30 Ark. 657; 58 Ark. 172. The description was sufficient in this case. 22 S.W. 82; 37 S.W. 872; 30 S.W. 518; 67 Wis. 285; 73 Ind. 454; 114 Pa.St. 627; 78 Me. 153; 45 N.Y. 332; 78 Mo. 399; 94 Ind. 187; 95 Ind. 53; 9 Am. & Eng. Enc. Law, 370, 371.

OPINION

BUNN, C. J.

This is an appeal from the Sharp county circuit court, upon a judgment therein rendered affirming an order of the county court establishing a public road, and assessing damages to real estate belonging to appellant occasioned by the location over the same of said road.

When the viewers appointed by the county court filed their report therein, J. E. Beck, one of the landowners whose lands were affected by the location of the road, filed his exceptions to the report, stating that he was owner of a portion of the land over which the road was located by the viewers, and that none of the petitioners gave him the notice required by law of the time and place of meeting of the viewers, and of the substance of the petition upon which the proceedings were had, and that no lawful notice was given to the non-resident owners of lands affected; that the viewers did not assess to him adequate and sufficient damages for the taking of his land; that two of the viewers were near of kin to R. S. Biggers, the principal petitioner; and that the viewers in their said report did not describe the route of the road as the same was actually viewed and laid out.

The court held that the report was defective, because the viewers had not viewed the road with reference to the land of W. H. Wallace, and other non-residents affected thereby, and, without acting on the exceptions of Beck, otherwise re-committed the matter to the viewers, to perfect their view and make report at a subsequent time. Two of the viewers, Dougherty and McCobb (the other being sick and unable to attend their meetings), viewed and made a supplemental report, exhibiting therewith the proof of publication of the notice to Wallace and other non-residents, which appears to have been made in substantial compliance to the statute.

Beck then renewed his exceptions to the whole report, and on the 26th of January, 1897, the court heard the whole matter, and made an order establishing said road substantially as recommended by the viewers, making the same sixteen feet wide, and assessing damages to Beck in the sum of ten dollars, and to others as the viewers had recommended; and Beck and Wallace appealed, but Beck alone followed up his appeal to the circuit court, where the proceedings in the county court were affirmed, substantially. Beck filed his motion for new trial, reiterating therein his exceptions aforesaid, and setting up the formal grounds, and also that the court erred in admitting the testimony of certain witnesses, because they gave their conclusions as to the amount of damages, and not the facts upon which the same were based, and because the court erred in refusing to give instruction No. 1 asked by him.

There does not appear to have been any notice, as required by statute, of the intended presentation of the petition, but this does not appear to have been excepted to, except inferentially.

The appellant Beck, as a landowner, was not notified in writing by the principal petitioner five days previous to the meeting of the viewers for the purpose of viewing and locating the road; but it is contended that, having been notified on the day of the meeting, and having responded thereto by being present and taking part in said location, this defect was immaterial and without prejudice to his rights. Whether taking part as he did was a waiver of the statutory notice presents a question of some little doubt, but we are inclined to think that the particular part he took in the matter could not be regarded as a waiver of his right to lawful notice. The case of Howard v. State, 47 Ark. 431, 2 S.W. 331, cited by counsel, was a case of mere collateral attack upon the order of the county court establishing the road, and for that reason is not applicable to a case like this of direct attack on appeal.

Again, whether the route of the road was set forth in the report of the viewers, as really fixed by them, it is impossible for us to determine from this record; but the description of the terminal and intermediate points of the route contained in said reports, and in the order of the court based thereon, is certainly indefinite enough, and a stranger, even with the aid of compass and chain, could with difficulty, if at all, certainly determine what was the true location of the road. This being true, the description is too indefinite to meet the requirements of the law.

Again the appointment of viewers nearly related by affinity and consanguinity to the active promoters of the...