140 Ark. 241 | Ark. | 1919
Lead Opinion
(after stating the facts). It is first contended that the circuit court had no jurisdiction and that the county court, under our Constitution, had exclusive jurisdiction to ascertain the compensation due the landowners. The district was organized under an act1 providing for the creation and establishment of road improvement districts for the purpose of building, constructing, and maintaining the highways of the State of Arkansas. Acts of 1915, p. 1400.
Section 16 provides for alteration or change in the plans or specifications, or the route of the road to be constructed at any time before the improvements are made, and also provides the manner in which such changes shall be made.
Section 36 provides that it shall be the duty of the board and the eouifiw court in changing the route of any road to enter upon and lay out said roads over any lands in the improvement district in accordance with the provisions of act 422 of the Acts of 1911, amending section 7328 of Kirby’s Digest.
Section 37 reads as follows: “If any owner of real property in said district demands the assessment of damages to his property by reason of the improvement by a jury, the Board of Commissioners shall institute an action in the circuit court for the condemnation of said lands, which action shall be in accordance with the proceedings for the condemnation of the rights-of-way for railways, telegraph and telephone companies with the right of paying into the court a sum to be fixed by the court, and then proceeding with work before the assessment of said damages by a jury. Where there is more than one claimant for damages, such actions shall be consolidated if practicable, and one jury shall assess the damages accruing to all.”
In the case of Board of Directors of St. Francis Levee District v. Redditt, 79 Ark. 154, the court upheld a statute which authorized a board of directors of a levee district to condemn lands for the purpose of constructing the levee and to appear in the county court and cause a jury of twelve land owners to assess the damages to the land owners. Provision was made under the statute for notice to the land owners.
In Board of Directors St. Francis Levee District v. Powell, 89 Ark. 570, the land owner was permitted to recover in a suit brought by himself in the circuit court for lands taken outside of the right-of-way granted by the plaintiff and used by the levee district in the construction of the levee.
In Drainage District No. 11 v. Stacey, 127 Ark. 549, the land of the plaintiff was taken by a drainage district and used in constructing the drainage ditch and the plaintiff was allowed to recover in a suit brought by himself for that purpose in the circuit court. '
In Board of Directors of St. Francis Levee District v. Barton, 92 Ark. 406, an action in the circuit court was instituted by a land owner against the board of directors of the levee district to recover damages for permanent injuries to his land by the construction of the levee. The right to maintain the action was recognized, but relief was denied because the action was barred.
Finally it is insisted that the evidence is not sufik cient to warrant the verdict. We do not deem it necessary to set ont the evidence in this branch of the case. We deem it sufficient to say that we have read and considered it and are of the opinion that it was amply sufficient to support the verdict of the jury; and, indeed, from the evidence adduced by the defendants, the jury would have been warranted in finding damages for the defendants in larger sums.
We find no prejudicial error in the record, and the judgment will be affirmed.
Rehearing
(on rehearing). In their motion for .rehearing, counsel for appellant earnestly insist that under the statute the county and not the district is liable for the damages suffered by the landowner for the land taken for the purpose of widening the highway in question. They rely on section 36 of act 338 of the Acts of 1915. See Acts of 1915, page 1400. The section in question provides that it shall be the duty of the board in changing the route of any road to lay it out in accordance with the provisions of act 422 of the Acts of 1911 and they claim that under this section the county would be liable for damages to land taken in changing the road. In making this contention counsel have not taken into consideration section 12 of the act in question. This section in express terms provides that the damag-es shall be paid out of the funds of the district, or by a reduction in the assessments of benefits.
The motion for a rehearing will be denied.