Road District No. 6 of Lawrence County v. Hall

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Road District No. 6 of Lawrence County v. Hall, 215 S.W. 262, 140 Ark. 241 (Ark. 1919)
• Decision Date: 20 October 1919
• Docket Number: 149
• Parties: ROAD DISTRICT NO. 6 OF LAWRENCE COUNTY v. HALL

215 S.W. 262

140 Ark. 241

ROAD DISTRICT NO. 6 OF LAWRENCE COUNTY v. HALL

No. 149

Supreme Court of Arkansas

October 20, 1919

Appeal from Lawrence Circuit Court; Dene H. Coleman, Judge affirmed.

Judgment affirmed. Motion denied.

Ponder & Gibson, for appellant.

1. The circuit court had no jurisdiction to try the issues, as the county court had exclusive jurisdiction under our Constitution to ascertain the compensation due the land owners. Act 338, Acts 1915, page 1400; 134 Ark. 121; art. 7 § 28.

2. Road districts are not liable for damages in the manner as held by the court below. 110 Ark. 416; 58 Miss. 197; 94 Ark. 380; 121 Col. 96; 53 P. 401; 36 N.W. 267; 14 Cyc. 1057; 118 Ark. 1.

3. There was no assessment of damages at the time the assessment of benefits was made, and, defendants not having appealed the judgment confirming the assessment is binding, and it is now too late to attack the assessment collaterally. 212 S.W 334.

4. The acts complained of were all the acts of Newman R. Gregory, an independent contractor, for which he alone was liable, and not the commissioners nor the district. 53 Ark. 503; 54 Id. 424; 118 Id. 561.

5. The damages should have been confined to such damages as existed at the time of the trial and not those in futuro or speculative. 54 Ark. 140. Plaintiffs should have been permitted to amend their complaint as to Donie Hall and Mrs. Lee Coffman, setting up that they owned a life estate and not the fee, nor was the district liable for damages except those specifically growing out of the widening of the right-of-way and those accorded at the time of trial the value of the land taken only. Supra.

Smith & Gibson and Sloan & Sloan, for appellees.

1. The road district was liable for all damages caused by the improvement. 110 Ark. 416-420; 118 Id. 1-3; Kirby & Castle's Digest, § 1917; Act March 30, 1915, page 1400, § 12; K. & C. Digest, § 9158.

2. The right to recover damages is not res adjudicata. 212 S.W. 334.

3. The Alexander and Turner acts do not have identical provisions. K. & C. Digest, § 5844; Ib., §§ 9117-18; 33 Ark. 575.

4. This suit in the circuit court to condemn was instituted in pursuance of the statute upon demand made for trial by jury. At the time the assessment of benefits was made the widening of the road had not been done nor contemplated, and the defense of res adjudicata was not pleaded nor proved. 134 Ark. 121; 203 S.W. 260.

5. The court did not err in refusing to permit appellant to amend its petition as to Donie Hall and Mrs. Lee Coffman. 70 Ark. 423, 426; 12 Enc. of Ev. 604; 106 Ark. 14.

6. Refusal to permit a witness to answer certain questions will not be prejudicial if it does not appear what his answer would have been. 87 Ark. 52; 92 Id. 509; 96 Id. 190; 97 Id. 564; 88 Id. 562; 108 Id. 500; 123 Id. 548. Appellant merely offered to amend but did not ask leave to amend. 32 Ark. 244.

7. The acts complained of were not those of an independent contractor. The hirer is responsible to the district here. 14 R. C. L., p. 86, § 23.

8. The circuit court had jurisdiction to try the issues as to amount of damages. K. & C. Dig., §§ 9127-9158. The statute is constitutional. 93 Ark. 612; 27 Id. 292; 25 Id. 246; 102 Id. 166; 77 Id. 250; 66 Id. 466; 114 Id. 156; 100 Id. 175; 86 Id. 231; Ib. 412; 122 Ark. 291.

Under the act the county court made the order changing the road. 134 Ark. 121. There was no error as to damages from change of road. 98 Ark. 206; 71 Id. 152; Lewis on Em. Dom. (3 Ed.), § 348; 98 Ark. 206.

9. The entry was made under the orders of both the circuit and county courts.

10. Damages were properly allowed for lands only actually taken. 44 Ark. 258, 262.

STATEMENT OF FACTS.

Road Improvement District No. 6 of Lawrence County, Arkansas, was duly organized under Act 338 of the Acts of 1915, for the purpose of improving certain public roads located in the Eastern District of Lawrence County, and W. J. Robinson, John K. Gibson, and J. E. McCall, were appointed commissioners for the construction of said improvement. They were duly qualified and commenced the construction of the improvement. They instituted proceedings in the circuit court against Mrs. Donie Hall, a landowner in the proposed district, to condemn certain lands belonging to her and situated in the district, for use in making the proposed improvement. A preliminary deposit was made by them. Similar proceedings were filed against other landowners in the district, viz.: Clay Sloan, Frank Stewart, Mary C. and S.W. Stewart, and Mrs. Lee Coffman. Preliminary deposits were also filed in each of these cases.

Before the circuit court convened, the commissioners of the district caused each of the proceedings to be dismissed and the deposits of money to be restored to them. At the next term of the circuit court, Mrs. Donie Hall, and the other landowners named above made a motion to have the proceedings reinstated in the circuit court and that the preliminary deposits be again made. The motion was granted and the proceedings were reinstated. The cases were consolidated for the purpose of trial and tried before a jury. The jury returned the following verdict: "We, the jury, assess damages to the defendants as follows: Clay Sloan, $ 140; Frank Stewart, $ 500; Mary C. and S.W. Stewart, $ 500; Mrs. Dona Hall, $ 100; Mrs. Lee Coffman, $ 100. G. R. Statler, Foreman."

Judgment was rendered upon the verdict and the commissioners have duly appealed to this court.

OPINION

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

It is first contended that the circuit court had no jurisdiction and that the county court, under our Constitution, had exclusive jurisdiction to ascertain the compensation due the landowners. The district was organized under an act providing for the creation and establishment of road improvement districts for the purpose of building, constructing, and maintaining the highways of the State of Arkansas. Acts of 1915, p. 1400.

Section 16 provides for alteration or change in the plans or specifications, or the route of the road to be constructed at any time before the improvements are made, and also provides the manner in which such changes shall be made.

Section 36 provides that it shall be the duty of the board and the county court in changing the route of any road to enter upon and lay out said roads over any lands in the improvement district in accordance with the provisions of act 422 of the Acts of 1911, amending section 7328 of Kirby's Digest.

Section 37 reads as follows: "If any owner of real property in said district demands the assessment of damages to his property by reason of the improvement by a jury, the Board of Commissioners shall institute an action in the circuit court for the condemnation of said lands, which action shall be in accordance with the proceedings for the condemnation of the rights-of-way for railways, telegraph and telephone companies with the right of paying into the court a sum to be fixed by the court, and then proceeding with work before the assessment of said damages by a jury. Where there is more than one claimant for damages, such actions shall be consolidated if practicable, and one jury shall assess the damages accruing to all."

The land involved in this suit was taken pursuant to the provisions of this act. The commissioners found that it was necessary to widen the road at certain points and at others to borrow earth from lands adjacent to the road for the purpose of constructing the improvement. They instituted condemnation proceedings in the circuit court under section 37 for the purpose of condemning the land necessary to be taken. It may be stated at the outset that, in the absence of any special constitutional provision prescribing how compensation shall be ascertained, there is no limitation on the Legislature, except the provision that no man shall be deprived of his property except by due process of law. The Legislature may provide such a mode as it sees fit for ascertaining the compensation, provided only that the tribunal is an impartial one and that the parties interested have an opportunity to be heard. Lewis, Eminent Domain (3 Ed.), par. 511 (313), and 10 R. C. L., p. 223, sec. 190. In the exercise of this power sometimes the Legislature provides a summary method of condemning property as being more expeditious and to the best interest of all parties concerned, and at others it provides for the compensation to be made by a court exercising general jurisdiction and according to the course of the common law, as being better for the landowner and as, also, in the interest of the public for whose benefit the land is taken or damaged.

But counsel for the appellants contend that exclusive jurisdiction is conferred upon the county court to ascertain the compensation due the landowners in the case of the construction of roads. They rely upon section 28 of article 7 of the Constitution of 1874, which provides, in substance that the county courts shall have exclusive original jurisdiction in all matters relating to roads, bridges, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. Such has not been the construction placed upon that clause of the Constitution by the decisions of this court. It has been uniformly construed to refer to the laying out and vacating of public roads and the division of the county into convenient road districts. All of our decisions bearing on the subject show that that clause of the Constitution has never been construed as conferring upon the county courts exclusive jurisdiction in condemnation proceedings relating to public roads, bridges, or for the internal improvement of the respective counties. To illustrate: Levees and drainage districts within...