Cazort v. Road Improvement Dist. No. 3

• Court: Arkansas Supreme Court
• Writing for the Court: Smith
• Citation: Cazort v. Road Improvement Dist. No. 3, 299 S. W. 1014 (Ark. 1927)
• Decision Date: 28 November 1927
• Docket Number: (No. 9.)
• Parties: CAZORT v. ROAD IMPROVEMENT DIST. NO. 3 OF JOHNSON COUNTY et al.

299 S. W. 1014

CAZORT v. ROAD IMPROVEMENT DIST. NO. 3 OF JOHNSON COUNTY et al.

(No. 9.)

Supreme Court of Arkansas.

November 28, 1927.

Certiorari to Circuit Court, Johnson County; J. T. Bullock, Judge.

Suit by Road Improvement District No. 3 of Johnson County and others against G. T. Cazort. An order was entered authorizing construction of a highway across defendant's lands, and he brings certiorari. Writ quashed.

Hugh Basham, of Clarksville, and Starbird & Starbird, of Alma, for defendant.

SMITH, J.

Road improvement district No. 3 of Johnson county instituted suit in the circuit court of that county by filing a complaint which contained the following allegations:

"Road improvement district No. 3 of Johnson county is a road district organized and existing under the general laws of the state of Arkansas, and its purpose and object is to improve and build a road from the town of Lamar, through Lutherville, and to the line between Johnson and Pope counties. Said road runs over and through a small tract of land owned by the defendant, G. T. Cazort, and said defendant refuses to agree upon the amount of damages, if any, he has sustained by reason of said road running over and across his said land.

"Plaintiff further alleges and states:

"That said road, if built across the land owned by said defendant, will take less than one acre of said defendant's land, and that said land is worth not more than $25 per acre, and that said defendant will not be damaged otherwise.

"That said road district No. 3, of Johnson county, Ark., has used every effort possible to obtain an agreement and did obtain an agreement with the said defendant whereby he agreed that said road district could build said road over and across his said real property, but at this time he refuses to permit said district to construct said road over his said real property, notwithstanding the fact that said road is practically completed over his said real property.

"That the work on said road is being retarded by reason of the fact that said defendant refuses to agree or permit said district to construct said road over his said real property.

"Said plaintiff road improvement district No. 3, by B. E. Wilson, J. D. Daniels, and J. C. Harris, as commissioners, are desirous that the damages be settled by a trial by a jury in the circuit court."

There was a prayer that the court fix the amount to be deposited by the said district until the final hearing, and that, upon making this deposit, the commissioners for the district "be permitted to go in and upon said real property owned by said defendant over which said road has been surveyed and continue the building of said road." It was further prayed that upon the final submission of the cause a jury be impaneled to assess defendant's damages. The court made the following order:

"On this 12th day of July, 1927, came the plaintiffs and presented the within complaint seeking to condemn for road improvement district No. 3 in Johnson county, Ark., the lands therein described, and, after hearing testimony, the court fixes the amount which plaintiff shall deposit with the circuit clerk of Johnson county at the sum of $400 to indemnify defendant, and upon the deposit of said sum the plaintiff road improvement district No. 3 is hereby authorized and empowered to enter upon said lands and construct the improvement, making a public highway across said lands, and the question of damages shall be submitted to a jury of the Johnson circuit court."

The landowner has proceeded by certiorari to quash this order, and alleges that it is invalid for the reason that the circuit court has attempted to exercise an original jurisdiction vested by the Constitution of the state (art. 7, § 28) exclusively in the county court. It is insisted that the purpose and effect of the order quoted above is to lay out and establish a public road over the land of the petitioner, and that this is a jurisdiction possessed only by...