Yates v. Sturgis, 92-281
| Decision Date | 01 February 1993 |
| Docket Number | No. 92-281,92-281 |
| Citation | 311 Ark. 618,846 S.W.2d 633 |
| Parties | Cathryn Chadwick YATES, Appellant, v. Floyd Andrew STURGIS and Vanessa Sturgis, Appellees. |
| Court | Arkansas Supreme Court |
Howard C. Yates, Morrilton, for appellant.
F. Thomas Curry, Arkadelphia, for appellee.
Cathryn Chadwick Yates, appellant, and Floyd and Vanessa Sturgis, appellees, own adjoining tracts of land inside the City of Arkadelphia. Appellant Yates alleges that part of her tract is landlocked, or, in other words, blocked from the nearest city street by the appellees' tract. She filed a petition in the County Court of Clark County, pursuant to Ark.Code Ann. § 27-66-401 (1987), to establish a private road across appellees' tract. The county court held that it was without jurisdiction to open a private road within the city limits and dismissed the petition. Appellant appealed to the circuit court. The circuit court affirmed the ruling of the county court and held that the City Council and the City Planning Commission were the sole authorities authorized to open streets within a city. We have taken jurisdiction of this case of first impression and reverse and remand.
Article 7, section 28 of the present Constitution of Arkansas, in the material part, provides: "The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries,...." (Emphasis added.) Our earlier state constitutions also placed jurisdiction of county roads under the county court. See, e.g., Ark. Const. of 1836, art. VI, § 9; Roberts v. Williams, 15 Ark. 43 (1854). In Sanderson v. Texarkana, 103 Ark. 529, 146 S.W. 105 (1912), we said that the above-quoted provision in the current constitution gives the county court jurisdiction over all public roads in the county and that means the county court also has jurisdiction over streets within a city. We wrote: Id. at 533, 146 S.W. at 107.
As implementing legislation to a prior constitution, the General Assembly, in 1871, provided that the county court may exercise the power of eminent domain to allow access to a landlocked tract. The statute, Ark.Code Ann. § 27-66-401 (1987), in the material part, provides:
When the lands ... of any owner [are] so situated as to render it necessary to have a private road from such lands ... over the lands of any other person and the other person refuses to allow that owner the private road, then it shall be the duty of the county court ... [to determine whether such a private road is necessary and, if it is necessary, to exercise the power of eminent domain at the expense of the person seeking the road].
Throughout the years we have construed our present state constitution and the above-quoted statute to give the county court the power of eminent domain to allow access to landlocked tracts. See, e.g., Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983); Bowden v. Oates, 248 Ark. 577, 452 S.W.2d 831 (1970); McVay v. Stupenti, 227 Ark. 224, 297 S.W.2d 769 (1957); Pippin v. May, 78 Ark. 18, 93 S.W. 64 (1906). Before 1871, the precursor statute, Chapter 140, section 62 of The Digest of the Statutes of Arkansas of 1846, provided, "Any person desirous of having a wagon road laid out, for his convenience, from the dwelling house ... of such person, to any public road ... shall present a petition to the county court...." Correspondingly, we held that this precursor statute, in implementation of the earlier constitutions, also authorized the county court to exercise the power of eminent domain to open roads to landlocked areas. Roberts v. Williams, 15 Ark. 43 (1854).
Article 2, section 23 of the state constitution provides, "The State's ancient right of eminent domain ... is herein fully and expressly conceded," and we have held that the procedure for exercising the power is a matter of legislative regulation. Cannon v. Felsenthal, 180 Ark. 1075, 24 S.W.2d 856 (1930). In sum, the General Assembly was within its province in authorizing the county court to exercise the power of eminent domain to give access to landlocked tracts, and it clearly did so in Ark.Code Ann. § 27-66-401 (1987).
At the same time, Article 12, section 3 empowers the General Assembly to provide for the organization of cities and towns, and the General Assembly may confer on cities and towns the power and supervision of streets within their boundaries. Sanderson v. Texarkana, 103 Ark. 529, 146 S.W. 105 (1912). The first legislature that assembled after the adoption of the present constitution enacted the statute codified as Ark.Code Ann. § 14-301-101 (1987), which provides that the city council shall: "(1) Have the care, supervision, and control of all the public highways, bridges, streets, alleys, public squares, and commons within the city; and (2) Cause those public highways, bridges, streets, alleys, public squares, and commons to be kept open and in repair, and free from nuisance."
In this case both the county court and the circuit court held that Ark.Code Ann. § 14-301-101 (1987), quoted above, divested the county court of jurisdiction to open roadways to landlocked tracts located within city limits.
One of the chief objectives of incorporating a municipality is to give the executive and legislative branches of the municipality control and supervision over the streets within the municipal limits and to charge those branches of municipal government with the duty to plan and keep and maintain the streets in suitable and safe condition. Neither the constitution nor the applicable statutes contemplate both the county court and the municipality having the executive and legislative control and supervision over the streets within the city. Sanderson v. Texarkana. Clearly, the control and supervision of streets within the municipality is given to the executive and legislative branches of the municipality. No street within the city may be dedicated to the city until accepted and confirmed by a municipal ordinance specially passed for that purpose. Ark.Code Ann. § 14-301-102 (1987).
However, the statute giving the executive and legislative branches of the municipality supervision and control of the streets has not taken jurisdiction from the county court for three distinct reasons. First, the constitution gives jurisdiction to the county court. An act of the legislature could not change that jurisdiction. Second, no other court is given jurisdiction by the constitution to exercise the power of eminent domain in cases such as the one at bar. Under the trial court's ruling a person inside the city would not have any judicial relief, while a person outside the city would. Neither the constitution nor the statutes contemplate such a denial of equal protection. Article 7, section 28 provides, "The county courts shall have exclusive original jurisdiction in all matters relating to county ... roads...." (Emphasis added.) The applicable statute, Ark.Code Ann. § 27-66-401 (1987), gives the county court the power of eminent domain to create a road, "[w]hen the lands ... of any owner is so situated." (Emphasis added.) Neither the constitution nor the statute limit applicability of the proceeding to the unincorporated geographic area of the county. Third, there is no real conflict between the county court's jurisdiction to exercise the power of eminent domain to give the owner of a landlocked tract a private roadway out of his land and a statute giving municipalities the control and supervision of city streets. Section 27-66-401 of the Arkansas Code Annotated of 1987 authorizes the county to establish a "private" road out of the landlocked tract, and, while it may be a public road in the sense that anyone who has occasion to use the road may do so, Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), it is still a private road, and the individual who petitions county court for the establishment of a private road out of a landlocked tract is responsible for the maintenance of that private road. Carter v. Bates, 142 Ark. 417, 218 S.W. 838 (1920). Quite differently, a city does not have to accept the control and supervision and concurrent cost of maintenance of a city street unless it chooses to do so. See Ark.Code Ann. § 14-301-102 (1987).
The circuit court also held that it would amount to a violation of the separation of powers doctrine to allow the county court to exercise jurisdiction within the city. We summarily dispose of the contention by reciting that the constitution gives the county "exclusive original jurisdiction" of county roads. In Road Improvement District No. 1 v. Glover, 89 Ark. 513, 117 S.W. 544 (1909), we clearly affirmed the plain language in the constitution relative to the exclusive jurisdiction of the county court over roads. There simply is no violation of the separation of powers doctrine.
The circuit court also held that the petition in this case amounted to an unconstitutional use of the power of eminent domain. While we have held to the contrary, Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), we do not address the issue. The county court held that it did not have jurisdiction to hear the case, and the circuit court affirmed that holding. Therefore, the trial court never determined the merits of the use of the power of eminent domain, and we will not do so in an advisory capacity.
Reversed and remanded for proceedings consistent with this opinion.
The majority opinion holds that county judges can open roads within the city limits of an incorporated municipality without city permission or even city involvement. I disagree that that is the law.
There is no doubt that the 1874 Arkansas Constitution gave county courts exclusive original jurisdiction over county roads....
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