93 S.W.2d 314 | Ark. | 1936
Upon the application of the Arkansas State Highway Commission, petitioner herein, to the county court of Hot Spring County, an order was entered in 1931, changing the location of U.S. and State highway No. 67 at Donaldson, in said county, so as to route same over an over-pass across the railroad tracks, which petitioner proposed to construct at said point. The route of said highway as changed by said order passed across the lands of Mr. J. D. Nix. Thereafter *629 just when not being shown, but perhaps in 1934, petitioner undertook to take possession of the land for the new route and over-pass, but Mr. Nix refused to permit same, and petitioner instituted an injunction proceeding in the chancery court and enjoined him from further interference with its right of possession and with the construction of the changed highway and over-pass. In the injunction order the court attempted to impound $3,000 of the turn-back funds due from the State to Hot Spring County to protect Mr. Nix in whatever damage he might sustain by reason of the taking of his property. There was no appeal from this decree. In August, 1935, Mr. Nix filed a claim with the county court for damages for the taking of his land in the sum of $3,000, which claim was disallowed by the county court on October 7, 1935, for the reason that: "Damage not incurred by county or any agent thereof." An appeal from the order of disallowance was, in due time, prosecuted to the circuit court, and, on October 11, 1935, Mr. Nix filed a complaint in the circuit court against Hot Spring County, Kochtitzky and Johnson, contractors, the State Highway Commission and the trustees of the Missouri Pacific Railroad Company in which he prayed damages in the sum of $3,000 for the taking of his land. The State Highway Commission entered its special appearance, objected to the jurisdiction of the court in the action, and moved to have the cause dismissed as to it. The trial court overruled this motion and ordered petitioner to prepare for trial, whereupon this original proceeding was instituted in this court. A temporary writ was awarded by one of the judges and was continued by the whole court, pending a final hearing. The question now is: Shall the writ of prohibition be granted?
Mr. Nix alleged in his complaint filed in the circuit court that the order of the county court condemning his land for the changed route of said highway 67 is void, and that the petitioner here was a trespasser. The order of the county court was made under authority of 5249, Crawford Moses' Digest. This section was amended by act 611 of the Acts of 1923, page 490, but Hot Spring *630
County was exempted from the amendatory act. Said section has been many times construed and sustained. See Sloan v. Lawrence County,
This is a suit against the State and cannot be maintained. Arkansas State Highway Commission v. Nelson Brothers,
The question before the circuit court is whether he has been damaged, and, if so, how much, (assuming his claim was filed in time)? He raised no question in the county court as to the validity of its order. On the contrary he asserted its validity by filing his claim. He now asserts the invalidity of the order, and sues the petitioner with others for damages as a trespasser.
Let the writ issue. It is so ordered.
SMITH and MEHAFFY, JJ., dissent.