Lawson v. Road Improvement District No. 7
| Decision Date | 24 March 1924 |
| Docket Number | 261 |
| Citation | 259 S.W. 747,163 Ark. 303 |
| Parties | LAWSON v. ROAD IMPROVEMENT DISTRICT NO. 7 |
| Court | Arkansas Supreme Court |
Appeal from Little River Circuit Court; B. E. Isbell, Judge affirmed.
Judgment affirmed.
Lake & Lake and A. D. DuLaney, for appellant.
Appellee entered upon and appropriated the land in question without authority, as the entry was made before the county court made a proper order declaring the route selected to be a public road, and the order made was void for indefiniteness in description of the route. 66 Ark. 292; 29 C. J. 462; 135 Ark 547. In taking more than a strip 50 feet in width, the district was a trespasser. 145 Ark. 578. Appellant's instruction No. 1 should have been given. It is error to submit to the jury the determination of questions about which there is no dispute. 90 Ark. 439. Instruction No. 2 requested, should have been given. No novation was effected by what transpired at the citizens' meeting, because appellee was not a party to the proceedings and had nothing to do with the meeting; appellant did not agree to release appellee from liability; that the promise of the citizens to pay was conditional. See 29 Cyc. 1136; 125 Ark. 7; 147 Ark. 530. Appellant was not represented at this meeting, and was not a party to it. The authority of an agent cannot be established by his own declarations. 96 Ark. 505; 105 Ark. 446; 131 Ark. 197; 159 Ark. 109.
Otis T. Gilleylen, for appellee.
The road was laid out in accordance with the petition signed by appellant, and he is therefore not damaged. 145 Ark. 578. If any one was liable for taking the property of the appellant, it was the county court, and he had his proper remedy. 134 Ark. 121; 110 Ark. 416. Improvement districts nor its commissioners are liable for torts. 94 Ark. 380; 110 Ark. 416. When a principal accepts benefits accruing from the unauthorized agency of another, he cannot be heard to deny the agency. 124 Ark. 360. Especially is this true where no offer has been made to return the benefits. 28 Ark. 59; 29 Ark. 131; 55 Ark. 240; 114 Ark. 9; 31 Cyc. 1257. By retaining a part of the benefits he ratified the entire contract. 54 Ark. 220; 35 S.W. 444.
Appellant instituted this suit against appellee in the circuit court of Little River County to recover damages in the sum of $ 1,850 on account of the construction of a lateral road across his farm. Appellee is a road improvement district created by act No. 292 of the special session of the General Assembly of the State of Arkansas for the year 1919, for the purpose of constructing roads and laterals in Little River County. It is alleged that, in constructing a lateral extending from Greenwood Shoals to a connection of the public road leading from Morris' Ferry to Foreman, appellees wrongfully and unlawfully entered and appropriated a strip of land ranging from ninety-seven to two hundred feet in width across an eighty-acre farm owned by him; that it constructed a dump on the land appropriated, about twelve to fifteen feet high, thereby cutting him off from access to his crops and land, and in order to drain borrow-pits made by it negligently through a high embankment which protected, appellee's land from high waters flowing through an adjacent lake; that it tore down his fences, and permitted cattle to enter, destroy his corn, and trample over his land; that the various items of damage, including the value of the land appropriated, amounted to $ 1,850.
Appellee filed an answer, admitting its creation under said act of the General Assembly, but denying other allegations of the complaint, and, by way of affirmative defense, alleged:
That appellant and other property owners in the road improvement district petitioned appellee to construct a lateral along the route selected.
That, pursuant to the provisions of the act, appellant's lands were duly assessed, by the commissioners of the district with reference to the benefits and damages they would sustain by reason of the construction of said lateral, and appellant failed to file a suit in the chancery court within the time allowed to question the findings of the commissioners.
That said route was established as a public road by the county court on the 17th day of December, 1920, upon the petition of appellant and other property owners in the district.
That appellant presented a claim of $ 3,000 to the commissioners for crossing his land, and was advised that appellee would abandon the construction of the lateral unless same was withdrawn, whereupon L. O. Shull and others offered to pay him $ 1,250 in full of all items of damage contained in his complaint, which offer was accepted; that, in keeping with said offer and acceptance, Shull and others paid him $ 662.50 and were given time in which to pay the balance; that, when advised of the settlement, appellee proceeded with the construction of the lateral.
That said commissioners, in their official capacity, contracted with C. A. Reese & Company to construct said lateral, and had no control or direction in the construction thereof.
The cause proceeded to a hearing upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment for appellee, from which is this appeal.
At the conclusion of the testimony, appellant requested an instructed verdict upon the alleged ground that the undisputed evidence showed that appellee constructed a lateral across his farm without authority, and that he did not settle his claim for damages with Shull and others. Appellant contends for a reversal of the judgment because the court refused to grant his request. In support of the contention it is argued, first, that the appellee entered upon the lands of appellant and partially constructed a dump before the county court of Little River County made an order changing the route and declaring the route selected a public road; second, that the order made was void on account of the indefiniteness in description of the route; and third, that it was not relieved from liability as a trespasser on account of the purported settlement with L. O. Shull and others.
(1, 2). It is unnecessary to set out the order of the county court the description of the route contained therein, and the testimony relative to entry and appropriation of the land, because the court, in submitting the case to the jury, instructed them to find for the appellant if the entry upon and appropriation of the land preceded in point of time the order of the county court changing the route and designating the route selected as a public road, unless they found that appellant had settled his claim for damages with L. O. Shull and others. The instruction given by the court was more favorable than appellant was entitled to, in that appellant was permitted to recover from appellee for a tort. Under the provisions of the act creating appellee district appellee was exempt from liability for torts. It had no money, and could raise none by the levy of assessments out of which a judgment for tort could be...
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