Craig v. Greenwood District of Sebastian County

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Craig v. Greenwood District of Sebastian County, 91 Ark. 274, 121 S. W. 280 (Ark. 1909)
• Decision Date: 12 July 1909
• Parties: CRAIG v. GREENWOOD DISTRICT OF SEBASTIAN COUNTY

121 S.W. 280

91 Ark. 274

CRAIG v. GREENWOOD DISTRICT OF SEBASTIAN COUNTY

Supreme Court of Arkansas

July 12, 1909

Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon Judge; affirmed.

Affirmed.

Winchester & Martin, for appellant.

1. Land cannot be taken and used for a public road against the owner's will without remuneration. Const. 1874, art. 2 §§ 21, 22; Kirby's Digest, §§ 3009 2901; 45 Ark. 429; 136 U.S. 121.

2. Having appropriated the land for public use without compensation, the county must pay for the land taken as though a road had been established. When the road caved into the river, the county had the right to enter upon land it had not paid for, and is liable under section 3009, Kirby's Digest.

Wm. A. Falconer, for appellee.

1. A road must be established as a public highway, (1) by statutory proceedings, or (2) by dedication, or (3) by prescription. There has been no such establishment by statutory proceedings nor by dedication. Anderson's Law Dict. "Dedication;" 13 Cyc. 437; 14 Barb. 511, 521; 1 Boone, Real Prop. 139; 6 Hill (N. Y.) 407, 411; 42 W.Va. 724; 26 S.E. 532. (3) There has been no establishment by prescription, as seven years public use (47 Ark. 436) nor by supervision, or work by overseer, etc. 23 Ark. 553; 21 S.W. 351; 5 So. 622; 52 Ill. 498; 22 Id. 414.

2. No appropriation having been made for the road, the county is not liable. Kirby's Dig., §§ 1502, 1505; 54 Ark. 645; 34 Id. 356; 67 Id. 562; 71 Id. 135.

3. The county has committed no act which amounts to taking the road. 52 Ill. 498; 21 S.W. 351; 5 So. 622; 11 Id. 375.

4. Destruction of the old road by a river and travel of the new does not make a public highway. 58 Cal. 159; 56 Vt. 487; 7 Cush. 410; 48 Am. Rep. 811; 54 Am. Dec. 728; Waterman on Trespass, 91; Cruise, Dig. 89. Travelers are mere trespassers, and the owner has the right to fence up the new road taken. Elliott on Roads and St., 12, 13, 14; 2 Doug. 757; Broom's Leg. Max. 1.

5. There being no statute making the county liable, a right of action does not arise. 26 Mo. 272; 68 Ark. 160-2; 4 Oh. Dec 130; 26 Ark. 39; 67 Ark. 562; 71 Id. 135; 31 Id. 266.

MCCULLOCH, C. J. HART, J., dissenting.

OPINION

MCCULLOCH, C. J.

Appellant, Sarah Craig, presented to the county court of the Greenwood District of Sebastian County a claim for compensation for land used as a public road. The claim was disallowed by the county court, and she appealed to the circuit court, where a trial before the court resulted in an adverse judgment, and she appealed to this court.

The case was tried on the following agreed statement of facts:

"In the year 19 the county court of Sebastian County, Greenwood District, pursuant to the requirements of section of Kirby's Digest, established a public road over the lands of Sarah Craig by definite metes and bounds, thirty feet in width, which road ran along the bank of the Arkansas River, in some places perhaps running as close as ten feet to the bank, and in other places perhaps fifty feet from the bank--as close to the bank as was safe for travel. The road so laid out and defined was paid for by the county court according to the damages fixed by the viewers. From time to time after said road was open to travel, the land caved in along the river bank and destroyed the road in various places, and the travel was forced to go onto the lands of the defendant, and this route so traveled also caved in, so that the public travel again made a route over other lands of defendant adjacent to the bank. The travel is now upon the lands of the defendant and along the bank of the river, and the present route has been so traveled some three or four years, except where it has caved in, and the travel has been diverted upon other lands belonging to the petitioner. The cave-ins began during the second year after the road was open for travel. After the several breaks had occurred and the public travel had been diverted upon her land where the breaks had occurred, Sarah Craig filed in the county court of the Greenwood District of Sebastian County a petition setting out the number of acres so used for travel, and asking that she be paid for same by the Greenwood District. This petition was not acted upon, and each year thereafter she filed a like petition, none of which were acted upon.

"On the day of she filed the petition presented herewith, which recites all the different claims theretofore filed, in which petition she set forth the fact that the road had been destroyed by the river and other lands of hers taken by the public, and prayed (pursuant to section of Kirby's Digest) the appointment of viewers to view out another road, that the county (Greenwood District) pay her for the lands so taken and used, etc. Viewers were by the court appointed, and they filed their report stating that they had viewed the premises, and that the land was worth thirty-five ($ 35) dollars per acre. When the matter came up for hearing before the county court, upon the report of the viewers, it was held by the court, as a matter of law, that the county was not liable to the defendant for the said land, and defendant's claim was not allowed, whereupon she took an appeal.

"It was further agreed that the land of Sarah Craig, over which the road heretofore referred to ran, is situated in Road District , and that they lie in Big Creek Township of Sebastian County, which township, under act of April 18, 1905, was made a separate road district. That the roads in the several townships or road districts are worked or maintained from funds derived from a three-mill road tax levied on the real and personal property in the particular road district in which the said property is located.

"It is further agreed that, after the road as originally laid out along the river bank had caved in, the subsequent routes traveled by the public were traveled without the consent of the county court, as far as any official action was concerned, and with only such knowledge as was contained in Sarah Craig's several petitions asking for pay for the land so used by the public, and that no assurance was ever given to the defendant by any one having a right to bind the county that the county would pay for such roads.

"It is further agreed that no appropriation has been made by the last annual levying court, or any other levying court of said county and district, for the purpose of paying for or establishing a new road on defendant's land. That the evidence does not show whether or not any road overseer has worked the road now used by the public over defendant's land, but that the public has continuously used this route since the road was established in 19 , though it is agreed that the county court never ordered the said road, as now traveled, worked, nor that it had ever needed any work.

"It is further agreed that by a vote of the last general election, September, 1906, the road tax was put into effect in the Greenwood District of Sebastian County, and the quorum court of said county levied a three-mill tax. That there are...