Road Improvement District No. 2, Pulaski County v. Winkler

• Citation: 145 S.W. 209,102 Ark. 553
• Parties: ROAD IMPROVEMENT DISTRICT NO. 2, PULASKI COUNTY, v. WINKLER
• Decision Date: 04 March 1912
• Court: Supreme Court of Arkansas

145 S.W. 209

102 Ark. 553

ROAD IMPROVEMENT DISTRICT NO. 2, PULASKI COUNTY, v. WINKLER

Supreme Court of Arkansas

March 4, 1912

Appeal from Pulaski Circuit Court, First Division; Robert J. Lea Judge; reversed.

Judgment reversed, and case remanded.

Bradshaw Rhoton & Helm, for appellant.

1. This district was held to have been legally formed under a constitutional act. 92 Ark. 93.

2. Under our laws there are two systems for the formation of improvement districts: (1) applying to land lying wholly within the boundaries of municipalities, and (2) to lands lying wholly outside of said boundaries. The extension of High Street has been used as a public road for more than seven years, and it has been declared a public highway by the county court, the only court having jurisdiction. The court erred in holding that the act relied upon does not apply except to rural roads.

Mehaffy Reid & Mehaffy, for appellee.

1. The statute does not apply to a street in addition to the city of Little Rock. The dedication was as a street, and there is no showing that it was ever accepted as a county road by any act of the county court. 59 Ark. 39; 89 Id. 517.

2. In opening and laying out a public highway the county court must proceed according to the statute. 66 Ark. 293; 83 Id. 239.

3. The record fails to show due notice of the petition for a county road. Kirby's Digest, §§ 2995-6-8-9, 3000, 3001. It appears upon the face of the record that the petition was presented and the whole proceedings were had on the same day. 10 Ark. 241; 66 Ark. 293. The statute must be followed or the order is subject to collateral attack. 83 Ark. 238.

4. It does not appear that this is a district of the character contemplated by law. The act only applies to such sections of public roads as are already in existence at the time of the organization of the district. 92 Ark. 93.

5. The act is inapplicable to the improvement of streets and alleys of a city. Act June 1, 1909, § 28, p. 1168; 89 Ark. 517; 92 Id. 93. "Street" is a general term, including all urban ways. 7 Words & Phrases, p. 6685. See 49 L. R. A. 757; 90 N.E. 892; 4 S.W. 327, 330; 62 Ark. 141, 143.

Bradshaw, Rhoton & Helm, in reply.

1. This was a county road by prescription. 50 Ark. 53, 60; 47 Id. 431.

2. The question of notice can not be inquired into on collateral attack. 66 Ark. 292; 83 Id. 236, 238.

OPINION

FRAUENTHAL, J.

A number of persons owning real estate in Pulaski County presented to the county court of that county a petition asking for the formation of a road improvement district under the provisions of an act of the Legislature approved May 2, 1907, entitled, "An act to provide for the creation of road improvement districts, or building, constructing, maintaining and repairing of public roads in the State of Arkansas," as amended by the act approved June 1, 1909 (Acts 1907, p. 568; Acts 1909, p. 1151). A remonstrance was filed to the petition by a number of owners of real estate in the proposed district. Upon a hearing of the matter in the county court, that court found that the petitioners had complied with the provisions of the above acts, and thereupon adjudged that the territory described in the petition be formed into a road improvement district and known as Road Improvement District No. 2 of Pulaski County, Arkansas. The remonstrants prayed and obtained an appeal from said order to the circuit court. In the circuit court the matter was tried upon an agreed statement of facts. From this it appears that the petition was signed by a majority in value of the owners of land to be affected in the district. All of the district lies outside of the corporate limits of the city of Little Rock, but is adjacent thereto, and is built up thickly with residences, and most of it is improved in the same manner as other residence portions of said city. The district is situated in what is known as Braddock's Boulevard Addition to the city of Little Rock, which was laid out and platted into lots and blocks, and the plat thereof was filed in the office of the recorder of said county on November 9, 1891, and thereon a public highway noted as a street, and known as High Street, was dedicated to the public. This highway is a continuation of what is known as High Street in the city of Little Rock, and by this proceeding it is sought to improve the highway which is outside the corporate limits of said city. Although said addition was laid out and platted, and the highway thereon was dedicated as a street to the public, the street has never been accepted by the city of Little Rock, and that city has no authority to exercise any jurisdiction over the same or any part of the territory included within the proposed district. The property lying to the west, north and east of the district and adjacent thereto is built up and used as residence property, and the improvement contemplated is for the purpose of improving the one highway running north and south, and the cost of the construction thereof will be assessed to the property on each side thereof for 300 feet. While the improvement district is sought to be formed for the purpose of benefiting the property in the district, one of its effects will be to benefit what is known as Braddock's Park, all of which is acreage property, unplatted, and only about three acres of which is included in the district. This park lies just south of and adjacent to the proposed improvement district. For more than fifteen years before the filing of the petition, all that part of the highway or street which is sought to be improved by this district was used by the public as a public highway. After the above named addition had been platted, all property thereafter sold was sold with reference to this and other highways in said addition, and the lots and blocks as represented on such plat. This highway begins at the southern limits of the city of Little Rock and extends through said Braddock's Boulevard Addition to what is known as Thirty-sixth Street in said addition, where Braddock's Park abuts it on the south.

It appears also from this agreed statement that the chief petitioner owned said Braddock's Park, and, prior to the filing of this petition, had entered into an agreement with a contractor to grade, curb and pave this highway. It was also provided in said agreement that, in event an improvement district should be established in said territory, the contractor would enter into an agreement with said improvement district to grade, curb and pave said highway or street and release said petitioner therefrom.

The circuit court found that it was sought by this petition to form a district for the purpose of improving a highway which, while not in the corporate limits of the city, was still a street in the city of Little Rock, and that the highway had never become a public road legally. It further found that some of the property included in the district would receive a less benefit than other property which was without the district and which would not be assessed for the improvement. The court further found that the provisions of said acts of the Legislature under which this proposed improvement district was sought to be created were applicable only to rural roads, and not to those highways which were in effect streets within towns and cities. It thereupon ordered and adjudged that the petition seeking the formation of said improvement district should be dismissed, and ordered that the organization of the district be declared invalid. From this judgment of the circuit court the petitioners have appealed to this court.

It is urged by counsel for the remonstrants that the order of the county court creating this improvement district is invalid; (1) Because the highway which is sought to be improved is not one of the public roads of said county; and (2) because the acts of the Legislature under which the proceeding is had are applicable only to rural public roads, and not to streets in a municipality, and it is contended that this highway which is sought to be improved is in effect such a street.

It appears from the agreed statement of facts that on February 4, 1910, the county court of Pulaski County made an order declaring and establishing that part of High Street between the south boundary of the city of Little Rock and the south boundary of Thirty-sixth Street in said Braddock's Boulevard Addition a public road or highway. In that order it was recited that a petition seeking the establishment of said public road had been duly filed, signed by the requisite number of resident property owners, as prescribed by law, and that upon hearing thereof the court found that the above part of High Street outside of the limits of the city of Little Rock had been for more than ten years openly, continuously and notoriously used as a public highway, and that in December, 1891, by a bill of assurance the owners of the land over which that portion of High Street runs had dedicated same to the public for use as a highway, and that it was to the best interests of the people of the county that the same should be a public highway. Thereupon said court did order and adjudge that said portion of High Street extending through said Braddock's Boulevard Addition to the limits of the city of Little Rock should be established and opened as a public highway, and did thereby declare the same a public road of...