Polk v. Road Improvement District No. 2, of Lincoln County

• Decision Date: 10 April 1916
• Docket Number: 319
• Citation: 185 S.W. 453,123 Ark. 334
• Parties: POLK v. ROAD IMPROVEMENT DISTRICT NO. 2, OF LINCOLN COUNTY
• Court: Arkansas Supreme Court

185 S.W. 453

123 Ark. 334

POLK v. ROAD IMPROVEMENT DISTRICT NO. 2, OF LINCOLN COUNTY

No. 319

Supreme Court of Arkansas

April 10, 1916

Appeal from Lincoln Circuit Court; W. B. Sorrells, Special Judge affirmed.

STATEMENT BY THE COURT.

This is an appeal from the judgment of the circuit court refusing to review and quash the order and judgment of the county court of Lincoln County, establishing a public road, for want of jurisdiction in the court, it being claimed that no notice of the proceeding for the laying out of the road and the assessment of damages was given as required by law.

It is alleged that the petitioner is a resident of Lincoln County the owner of certain designated lands; that on the 7th day of July, 1913, C. S. Bacon and others at the July term of the Lincoln County court presented a petition praying for the appointment of viewers to view and lay out a public road from a point near Star City, via Furth and Meroney to Grady in said county, a copy of which was exhibited. That on the back of said petition was an endorsement: "Filed this 7th of July, 1913, signed by the clerk and "Petition examined and granted and M. O. Adams, J. M. Meroney and E. J. Hall are appointed to view out said road. W. H. Harvey, Judge." That there was a public road traversing the same territory and almost parallel to the proposed route, and that the new road was intended to straighten the old road from Star City to Grady and to be improved under the supervision of the commissioners of Road Improvement District No. 2 of Lincoln County. That after the filing of the petition said viewers filed with the clerk of the county court whet purports to be a viewer's report, and that an order was made at the October term, 1913, establishing the county road petitioned for; that the road so established traverses the premises of the petitioner for a distance of half a mile and if fifty feet wide; that the land appropriated is in cultivation and of the value of $ 50 per acre and that petitioner will be required to maintain two strings of wire fence the entire length of his land at an original cost of $ 125. That the old road traversed one side of petitioner's property and is ample for public traffic, and the opening of the new road will greatly depreciate the value of his lands. That the damages awarded to the petitioner by the county court is the sum of $ 1.00. A copy of the order establishing the road is exhibited with the complaint.

It is further stated that said proceedings in the county court were without jurisdiction and void because, (1) the principal petitioner did not execute the bond required by law; (2) because the court did not issue its order appointing viewers and naming the day on which they should meet and lay out the road, (3) because the notice required under section 2995 Kirby's Digest was not given to the petitioner or his agent that said petition would be presented or that the viewers so acting were to meet on a day certain or within five days thereafter to view said road and that said purported notice did not describe the petitioner's land (4) that the damages awarded to petitioner are so wholly inadequate as amounts to a confiscation of his property.

It was further alleged that the petitioner had no notice, knew nothing whatever of the proceeding in the county court until about the first day of April, 1915, when the board of directors of the improvement district began to open the road through his premises; that he knew previous to that time that said board was preparing to build a gravel road along the old road but did not know that his property as herein mentioned was to be appropriated therefor; that he immediately applied to the board for compensation before they appropriated his property and was advised that the county court had established a road through the premises, and "that he had no notice whatever of said proceedings," that he could not make himself a party thereto and appeal to the circuit court from the order of the county court. That said right of appeal was lost without fault on his part.

It is further alleged that about the fifth day of April, 1915 after he had notified the directors of the road improvement district of his intention to take steps to secure compensation for his land so appropriated, that the president of said board filed a petition in the county court of Lincoln County, praying the court to enter a nunc pro tunc order of the appointment of viewers and naming the day on which they should meet. That said court on the fifth day of April, 1915, without notice to petitioner heard the petition filed by said Norton and entered an order of record nunc pro tunc appointing the viewers and fixing the day of their meeting as of the date of the 7th of July, 1913, reciting that through an error of the county clerk acting in July, 1913, said order was omitted from the record.

Stated further that the only order made in fact appointing viewers, by the county court was the endorsement on the back of the petition and that no date was named therein for their meeting and that it was not through inadvertence of the clerk that the order did not appear on the record, that no such order was in fact made.

Exhibit A is a copy of the petition for the establishment of the road with the description thereof.

Exhibit B is a copy of the judgment reciting that on this day "comes on to be heard the report of viewers M. O. Adams J. M. Meroney and E. J. Hall, appointed by this court at its July term, 1913, to view certain proposed county roads from Star City" describing them, as in the petition, and "the report of said viewers on the said proposed route heretofore filed with the clerk, is directed on this second day of the October term, 1913, publicly read, and it appearing to the court that due and proper notice having been made by the petitioners to the property owners whose property is to be traversed by said proposed road as required by law and no legal objections to said report are made or filed and same is submitted to the court for its consideration and judgment." Then follows the recital that the court finds from the report of the viewers that they recommended certain routes as practicable and demanded by the public convenience, including the proposed road, describing it, and finds that the expense of the survey and report have been paid by the petitioners and that...