Vestal v. Little Rock

• Decision Date: 14 March 1891
• Citation: 15 S.W. 891,54 Ark. 321
• Parties: VESTAL v. LITTLE ROCK
• Court: Arkansas Supreme Court

15 S.W. 891

54 Ark. 321

VESTAL v. LITTLE ROCK

Supreme Court of Arkansas

March 14, 1891

APPEAL from Pulaski Circuit Court, ROBERT J. LEA, Judge.

Proceeding to annex the unincorporated town of Argenta to the city of Little Rock. The facts are stated in the opinion.

U. M. & G. B. Rose for appellant.

1. Argenta is not contiguous to Little Rock. 32 La. Ann., 435; Smith, Synonyms, p. 273 (1889); 29 Mich. 451. Being a navigable stream, the Arkansas river, together with its bed and the banks between high and low water mark, belongs to the State. 94 U.S. 168; 117 U.S. 338; 20 F. 32; 33 id., 755; Gould on Waters, sec. 66.

2. The annexation is unreasonable and improper, subjecting the annexed territory to increased burdens without any corresponding benefit. There is no impending necessity for it. 9 B. Mon. 330; 11 id., 498. See also as to merging two villages. 32 N.W. 458; 5 S. & W., 281.

3. A city cannot annex territory solely for the purpose of increasing its revenue, etc. 1 Neb. 16; 13 Iowa 86; 16 id 271; 17 id., 404; 20 id., 419; 30 id., 542; 15 B. Mon. 497.

4. Nor is it reasonable to allow it to annex agricultural lands, not platted, nor built upon, nor needed for city purposes, but simply to increase the city revenues. See 8 Iowa 170; 37 Am Rep., 633; 28 Pa.St. 256; 85 id., 170; 13 Iowa 86; 17 id 407; 34 id., 194; 22 Mo. 384.

Blackwood & Williams for appellee.

1. The fact that the Arkansas river rolls between Little Rock and Argenta does not prevent contiguity. It is immaterial who owns the bed of the river. The bed may be annexed with Argenta. 6 Johns., 135; 19 ib., 175; ib., 179; 5 Cow., 375; 28 N.H. 216; 11 Ohio St. 96.

2. As to the objection of onerous taxation, it is sufficient to say that the constitutional limitations protect them. But if the new territory could not partake of these benefits and had to assume burdens of taxation against their will, they could be annexed. 1 Dill. Mun. Corp.; 11 Ohio St. 96; 8 id., 285; 92 U.S. 307; 43 Ark. 324; 33 Ark. 508.

W. G Whipple for appellee.

1. The only case in point that could be found is in our favor. 11 Ohio St. 96.

2. The power to add contiguous territory is conferred by Mansf. Dig., sec. 922; 33 Ark. 514; 43 id., 325.

3. Has there been any abuse of it? The county court has full jurisdiction. Mansf. Dig., 786.

4. The lands taken in are adapted to city purposes and uses. This is the test. 33 Ark. 517; 43 id., 326.

5. As to the increased burdens of taxation, that question has not arisen yet. But see 52 Miss. 53; 58 Mo. 141; 85 Pa.St. 170; 18 Ohio 514; 6 Mich. 54; 5 Dillon C. C., 443; Dillon, Mun. Corp., sec. 794.

OPINION

HEMINGWAY, J.

This appeal arises in a proceeding on the part of the city of Little Rock, to annex to itself certain outlying and contiguous territory.

The statute prescribes conditions upon a compliance with which a municipal corporation may present to the county court its petition to annex to it contiguous territory lying in the same county. Mansf. Dig., sec. 922. It provides that when such petition is presented to the county court, it shall fix a day for a hearing thereon of which notice shall be given, and that any person interested may appear and contest the granting of the petition. Mansf. Dig., sec. 786. It further provides that if the court shall find that the prescribed conditions have been observed, and shall deem it reasonable and proper to grant the petition, it shall make an order to that effect. Mansf. Dig., sec. 787. A reversal of the order granting the city's petition under this statute is sought on two grounds: first, because the court exceeded its authority in ordering that lands be annexed that were not contiguous to the city; and, second, because it ordered that lands be annexed which it was unreasonable and improper to include within the city. Before considering them directly, we will state what we conclude from the many authorities to be the correct rule to guide in determining an application for annexation.

1. That city limits may reasonably and properly be extended so as to take in contiguous lands, (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owner, (3) when they furnish the abode for a densely-settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper town purpose, as for the extension of its streets, or sewer, gas or water system, or to supply places for the abode or business of its residents, or for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation, would not give ground for their annexation, if it did not appear that such value was enhanced on account of their adaptability to town use.

2. We conclude further that city limits should not be so extended at to take in contiguous lands, (1) when they are used only for purposes of agriculture or horticulture, and are valuable on account of such use, (2) when they are vacant and do not derive special value from their adaptability for city uses. People v. Bennett, 18 Am. Rep. 107; Cheaney v. Hooser, 48 Ky. 330, 9 B. Mon. 330; City v. Southgate, 15 B. Mon. 491; Morford v. Unger, 8 Iowa 82; New Orleans v. Michoud, 10 La.Ann. 763; Bradshaw v. Omaha, 1 Neb. 16.

By contigous lands we understand such as are not separated from the corporation by outside land; and we think the statute permits the annexation of any such lands, and that the court is justified in making an order to annex them, whenever they are so situated with reference to the corporation that it may reasonably be expected that after annexation they will unite with the annexing corporation in making up a homogeneous city, which will afford to its several parts the ordinary benefits of local government. But however near they may be to the petitioning corporation, if they are so circumstanced with reference to it that it could not reasonably be expected that the parts would amalgamate and organize a municipal unit which would afford to each the ordinary benefits of local government, it would not be reasonable and proper to order their annexation. When actual unity is impracticable, legal unity should not be attempted, but the incongruous communities should be left to independent control. In all cases, however, where actual unity is practicable, legal unity should be ordered as promising the greatest aggregate of municipal benefits.

To sustain their first ground for reversal, appellants rely on the fact that the city is on one side, and a part of the lands included in the order is on the other side, of the Arkansas river. But we do not think this fact conclusive that the lands are not contiguous within the meaning of the act. The river is also included in the land annexed, and is therefore not a break to contiguity nor an insuperable barrier to a complete amalgamation of the communities upon its opposite banks. That intervening rivers do not prevent such amalgamation or the consequent building up and maintaining of a compact city, is attested by common observation. And the Supreme Court of Ohio in construing a provision in the same terms as that relied on, contained in a statute upon which our own appears to have been modeled, held that a city might annex territory on the opposite bank of a large river. Blanchard v. Bissell, 11 Ohio St. 96; see also Ford v. Incorporated Town, etc., 45 N.W. 1031.

To sustain the ground that the annexation ordered was unreasonable and improper, reliance is had upon the fact just considered, and the further fact that the only means of communication between the communities on opposite sides of the river are afforded by two toll bridges and a number of small boats operated by private persons for hire. That such are the means of communication between the communities, does not prove that they would continue to be the only means when the two, now separate, are blended in municipal union. While these are facts to be considered in determining whether annexation is proper and reasonable, they are not necessarily inconsistent with the attainment of municipal unity or the usual benefits of local government. To what extent they would tend to prevent it, and how far this tendency would be obviated by the action of the united communities, is a question of great uncertainty. It has been resolved against the appellants by the county court, to whose determination it is primarily committed, and again by the circuit court on appeal. Indulging the ordinary presumption in favor of the correctness of their finding in a matter about which conclusions might well differ, we would certainly not be warranted in disturbing their finding.

On the same ground reliance is placed upon the fact that the annexation includes forty acres of land belonging to William Metz, which is vacant, low, flat and wet, covered with timber, and, as it is claimed, for these reasons unsuited for town purposes. It has not been platted, but platted lands in the unincorporated town of Argenta touch it upon two sides to its entire extent; it does not appear how densely the adjoining lands are settled. Upon those facts we can not say that the court was not warranted in finding that it was proper to annex this land. It may have been needed for town purposes, and it may have needed organized local government to reclaim the low, wet parts and fit it for town uses. Such places are thus reclaimed in the ordinary course of town improvements, and become centers of population and business activity.

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