Stumpff v. Louann Provision Co.

• Decision Date: 28 February 1927
• Docket Number: (No. 237.)
• Citation: 292 S.W. 106
• Parties: STUMPFF et al. v. LOUANN PROVISION CO. et al.
• Court: Arkansas Supreme Court

292 S.W. 106

STUMPFF et al. v. LOUANN PROVISION CO. et al.

(No. 237.)

Supreme Court of Arkansas.

February 28, 1927.

Rehearing Denied April 4, 1927.

Appeal from Ouachita Chancery Court; Geo. M. LeCroy, Chancellor.

Suit by the Louann Provision Company and others against Guy J. Stumpff and others. Decree for petitioners, and defendants appeal. Reversed, and cause dismissed.

Prior to the discovery of oil in and near it in 1922, the town of Louann was an unincorporated village. In that year oil was discovered, and the village grew in population rapidly, and on July 2, 1923, the town was incorporated. The Camden and Louann road, a public highway, passed through the village and ran across 80 acres of land which formerly belonged to O. C. Reeves. Reeves sold about one acre of this tract to appellee Q. C. Murphy, which acre was situated north of the Missouri Pacific Railroad and north and east of the depot in said town. This Camden and Louann public road passed along to the north of Murphy's property and adjacent thereto. The town of Louann had been platted prior to its incorporation, and one of its streets running north and south was designated on said plat as Main street; another running east and west was known as Alton avenue. First street is a street running north and south, and is the second street east of Main street. H. B. Solmson, trustee, owned all the land east of First street to the eastern end of Alton street on both sides of Alton street, all of which property had been platted as Myer's addition, and through it passed the Camden and Louann road after crossing First street to the east end of Alton street. Appellee Murphy and appellant Shirey owned the remainder of the land on either side of said public road east of Main street, and in February, 1923, appellant Shirey, appellee Murphy, and H. B. Solmson presented a petition to the county court of Ouachita county asking that the route of the old original public road be changed through their land, and that the same be opened along the route known as Alton street to a width of 60 feet, the petitioners being the owners of all the property on both sides of the old road and on both sides of the location to which the same was sought to be changed. The petition was filed under section 5226 of Crawford & Moses' Digest.

No action on this petition was shown on the records of the county court until September 22, 1924, when the court entered an order nunc pro tunc granting the petition, vacating the old road and opening as a public road the location as shown on the map or plat as Alton street from the point where Alton street intersected at the east end of the original road, westerly to its intersection with Main street, as shown on the map. This nunc pro tunc order was entered as of the 14th day of March, 1923. After the time when it is said that the order changing the public road was made by the county court, a map of the town of Louann was laid out by appellant Shirey with Alton street open and the original county road closed. Appellants Shirey and Stumpff owned lots which occupied a part of the old public road and commenced to build a house thereon. The appellees procured a restraining order preventing the erection of a house on any part of the old public road, and this order was made permanent by a final decree of the court. In the decree the court found that the county court of Ouachita county made a nunc pro tunc order on September 22, 1924, as of March 18, 1923, by which it undertook to vacate and change said road; that the order was actually made on March 18, 1923, but was not entered until September 22, 1924; and that there was no fraud in obtaining or making said order nor in the obtaining or making of the nunc pro tunc order; that the appellees had vested rights in the easement over said public road; and that the construction of a building thereon would be an obstruction of said road and a violation of the rights of appellees.

From the decree of the court making the injunction perpetual comes this appeal.

Gaughan & Sifford, of Camden, for appellants.

Thos. W. Hardy, of Camden, for appellees.

McHANEY, J. (after stating the facts as above).

The county court had jurisdiction to make the order vacating the old county road and opening same on Alton street. Section 5226 of Crawford & Moses' Digest reads as follows:

"All public roads and highways shall be laid out, opened and repaired agreeably to the provisions of this act, and the county court of each county shall have full power and authority to make and enforce all orders...