Rayder v. Warrick

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Rayder v. Warrick, 202 S.W. 831, 133 Ark. 491 (Ark. 1918)
• Decision Date: 15 April 1918
• Docket Number: 295
• Parties: RAYDER v. WARRICK

202 S.W. 831

133 Ark. 491

RAYDER v. WARRICK

No. 295

Supreme Court of Arkansas

April 15, 1918

Appeal from Desha Chancery Court; Z. T. Wood, Chancellor; reversed.

Decree reversed and cause remanded.

E. E Hopson, for appellant.

The order of the county court making the changes was void. 123 Ark. 209; 180 Ill. 151; 40 A. 938.

J. W. & J. W. House, Jr., for appellees.

1. The changes made were authorized by the act. Act 338, 1915 §§ 1 and 16; 130 Ark. 410.

2. The statute was literally complied with. Appellants have no right to complain. No appeal was taken. All the original petitioners were in favor of the changes. Due notice was given and the court found that a majority of land owners favored the changes and none appealed.

STATEMENT OF FACTS.

This is a suit in equity by W. R. Rayder, an owner of real estate within the boundaries of a road improvement district, against W. H. Warrick, E. W. Warrington and Scott McGehee, as commissioners of Road Improvement District No. 1, of Desha County, to restrain them from further proceeding with the construction of the improvement within said district.

The allegations of the complaint are substantially as follows:

Road Improvement District No. 1, Desha County, was established under Act. No. 338 of the Acts of 1915, being an act providing for the creation and establishment of road improvement districts for the purpose of building and constructing and maintaining highways in the State of Arkansas. In compliance with the act, the State Highway Engineer made a preliminary estimate for the construction of the road and estimated it to cost $ 5,903.20 per mile or a total cost of $ 62,455.90. According to the preliminary estimates filed by the State Highway Engineer, the road was to be constructed from McArthur via McGehee to the Drew County line and was to be 10.58 miles in length. It was to be constructed of Benton gravel, spread and rolled for the finished road, twelve feet wide and six inches deep. Subsequently the commissioners concluded it would be to the best interest of the district to make changes in the preliminary plan.

First that the road west from McGehee to the Drew County line should be located on the present road bed, rather than on a straight line, because it would cost less, both in construction and right of way.

Second that the type of the road should be changed from a six-inch gravel one to a stone base with an asphalt surface.

Third the location of the road in the city of McGehee should be changed from a road on First Avenue to run on Ash Street to the intersection of Ash and Second Avenue, thence west on Second Avenue. The total estimated cost of the road with the changes amounted to $ 119,300.

The county court granted the prayer of the commissioners and made an order changing the location of the road and the material to be used in constructing it in accordance with the prayer of the petition. The plaintiff, as an owner of real estate in the proposed district, sought to restrain the commissioners from proceeding further in the construction of the improvement on the ground that the county court had no authority to order these changes to be made.

The court sustained a demurrer to the complaint and the plaintiff declining to plead further, his complaint was dismissed for want of equity. The case is here on appeal.

OPINION

HART, J., (after stating the facts).

The road district was established under Act 338 of the Acts of 1915. Acts of 1915, p. 1400. Section 16 of the act is relied upon by the commissioners to uphold the validity of the order of the county court authorizing the change from a gravel to an asphalt surface and also the changes in the route of the road. The section reads as follows:

"If the commissioners find it necessary and to the best interest of the district at any time before the improvements are made, to make any alteration or change in the plans and specifications, or the route of the road to be constructed, or that it is necessary to construct any additional laterals or extensions within the boundaries of the district not provided for in the original plans, or find that any road or roads in the course of construction should be extended in the additional territory not included in the original district, they shall have the engineer for said district or the State Highway Engineer, as the case may be, to make plans and estimates of the cost of such changes, laterals or extensions.

"When the engineer has completed his report of same he shall file it with the board of commissioners, and the commissioners of said district shall file same in the office of the county clerk. Thereupon the county court shall direct the clerk to give public notice that such report has been filed and set out the changes suggested, and calling upon the land owners to appear in that court and show cause for or against said changes in the plans, route or the construction of any laterals or extension as the case may be at a date not earlier than five days after said notice shall have been given in a newspaper having a general weekly circulation for two consecutive insertions. If the county court finds at the hearing above provided for that it is to the best interest of the district to make any change or alteration, or construct any lateral road or to extend any road into adjoining territory, or to extend the boundaries of the district so as to include adjoining territory, it shall make an order extending the boundaries of the district approving the changes submitted or the construction of any lateral road or extension as the case may be, and from the finding of the county court thereupon appeals may be taken by complying with section 14 of this act."

If the broad construction sought to be placed upon section 16 by the commissioners in regard to the alteration of the plans and specifications and route of the road to be constructed should prevail, it is at once obvious that the section is in conflict with section 1 of the act or at least that the two sections would be inconsistent with each other.

Subsection (A) of the first section provides for the circulation of the petition among the land owners and for the filing of a plat with the petition upon which the boundaries of the proposed district shall be plainly indicated showing the...