142 Ark. 417 | Ark. | 1920
(after statixxg the facts). Although the statute calls roads of-this kind private roads because the costs of opening and keeping them in repair are to be borne by the individuals who petition for their establishment, yet they are in a sense public roads. That is to say, although they may be only a branch tci the main public road, yet any one who has occasion to do so may travel them. Pippin v. May, 78 Ark. 18. In that case in discussing whether the petition for the establishment of such a road should be graxxted the court said: “In determining whether such a road is necessary, the court must, of course, take into consideration, not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend it. After, considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not.”
Tested by this rule, we think the circuit court erred in holding that the road should be established. The undisputed evidence shows that appellants have a very valuable farm over which it is proposed to establish the road, and that it is tile drained; that the establishment of the road in question and travel over it will cause ruts to be formed, so that wagons will break the tiling; and that the tiling is so constructed that when one section is broken this will obstruct the drainage and cause the whole field to overflow with water. As we have airead} seen, any one who has occasion to do so may travel this road, if established. The injurious consequences which will inevitably result to- appellants from the establishment of the road in comparison to the service it will be to appellee and others who may have occasion to travel it, are so great that the court was not justified in ordering the road opened. It is true that appellee showed that the only other route was longer and more expensive to her, but she does not show that the cost of it was prohibitive, and the court, under the circumstances as disclosed by the uncontradicted testimony, was not justified in ordering the road opened because of the great injury and inconvenience to the appellants, when compared with the benefits to appellee.
It follows that the judgment must be reversed, and the cause will he remanded for further proceedings according to law and not inconsistent with this opinion.
