| Ark. | Feb 17, 1906
(after stating the facts.) This is an appeal from a judgment of the circuit court, which affirmed a judgment of the county court that refused to order a road opened over the land of defendant to connect the homestead of plaintiff with the public highway.
Our statute provides that “when the lands, dwelling-house or plantation of any person is so situated as to render it necessary for the owner thereof to have a private road from such lands, dwelling-house, or plantation to any public road or watercourse over the lands of any other person, and such person shall refuse to allow such owner such private road, it shall be the duty of the county court, on the petition of such owner. * * * to appoint viewers to lay off the same.” Kirby’s Digest, § 3010.
Now, this court in an early case held that, although these roads were called by the statute “private roads” because the cost of opening and keeping them in repair was not to be borne by the general public, but by the individual who petitioned for their establishment, and who was specially benefited thereby, yet that they were in fact public roads. Roberts v. Williams, 15 Ark. 43" date_filed="1854-01-15" court="Ark." case_name="Roberts v. Williams">15 Ark. 43.
This view is sustained by the decisions of the courts of other States, which hold that such roads are but branches of the main public roads of the State, and that, when established, they are for the use and benefit of the public at large, as well as the citizen to whose plantation or dwelling-house they lead. They do not become attached to his land, or a part of his property as a way that is strictly private may be owned, but, on the contrary, they are established for the use of the public as well as petitioner, and may be discontinued or changed when the public interests require it. Belk v. Hamilton, 130 Mo. 292" date_filed="1895-11-07" court="Mo." case_name="Belk v. Hamilton">130 Mo. 292; Denham v. County Comrs., 108 Mass. 202" date_filed="1871-10-15" court="Mass." case_name="Denham v. County Commissioners">108 Mass. 202; Davis v. Smith, 130 Mass. 113" date_filed="1881-01-08" court="Mass." case_name="Davis v. Smith">130 Mass. 113; Wolcott v. Whitcomb, 40 Vt. 40" date_filed="1867-02-15" court="Vt." case_name="Wolcott v. Whitcomb">40 Vt. 40; Johnson v. Supervisors, 61 Iowa, 89" date_filed="1883-06-06" court="Iowa" case_name="Johnson v. Supervisors of Clayton County">61 Iowa, 89; 1 Lewis, Eminent Domain, § 167.
“The character of a road, whether public or private, is not determined by its length or the places to which it leads, nor by the number of persons who actually use it. If it is free and common to all citizens, it is a public road, though but few people travel upon it.” Elliott’s Roads & Streets, §11; Taft v. Commonwealth, 158 Mass. 526" date_filed="1893-04-03" court="Mass." case_name="Taft v. Commonwealth">158 Mass. 526; Roberts v. Williams, 15 Ark. 43.
The road which petitioner sought to have established in this case would have been for the use of the public generally whenever they saw fit to use it as well as petitioner, and, had it been established, would have been in law a public road, though the cost of maintaining, it would have rested on petitioner. It being a public road, it was not, we think, required that'plaintiff should establish an absolute necessity for such road by showing that he had no other means of reaching the public highway. The fact that there is already a road leading from his place to the public highway does not conclusively show that the road that he petitioned for is not necessary.
We agree with the circuit judge that the mere fact that the road that the petitioner now has is some longer than the one he seeks to have established does not justify the court in ordering this road opened if to do so will result in great injury and inconvenience to the defendant:- But if the road that he now has is not only longer but, on account of the wet and swampy condition of the land across which it is located, is at certain seasons of the year boggy and difficult to travel and very expensive to keep in good condition, and if the proposed road is better located, and can be established without great injury to the defendant, we think that, within the meaning of the statute, it is necessary.- If such are the facts, the petition should be granted, and viewers appointed to locate the road and assess the damages.
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.
The'evidence in this case is not such as would justify us in disturbing a finding of the court against the petitioner, but it appears that the court did not pass on the quéstion of whether the road was necessary within the meaning of the statute as above defined, but held that there must be an absolute necessity for such a road, and that, if the public highway could be reached by plaintiff in any other way, np relief could be granted. There are, no doubt, cases in other States to sustain this view, but, following the case of Roberts v. Williams, above cited, we are of opinion that the law of this State is different, and that the statute of eminent domain can be used to establish this road if the present road is, on account of its location, impracticable and insufficient.
The judgment is therefore reversed, and the cause is remanded for a new trial.