157 Ark. 557 | Ark. | 1923
(after stating the facts). The change in the road in question was made in conformity with the statutes relating to the establishment and alteration of public highways. No appeal was taken from the decision of the county court establishing the road as laid out by the viewers. Hence the present suit is a collateral attack on the judgment of the' county court in changing the public road.
It is well settled in this State that a judgment may only be attacked collaterally where, by the record, it is shown that there is a want of jurisdiction in the court rendering it, either of the subject-matter or of the person of the defendant. Crittenden Lbr. Co. v. McDougal, 101 Ark. 390, and Blanton v. Forrest City Mfg. Co., 138 Ark. 508.
The special act which created the special road district in question provided that the county court might make changes or alterations in the existing highway by following the method of procedure prescribed by the statute in such cases.
In Sloan v. Lawrence County, 134 Ark. 121, the act' of 1911 relating to the power of the county court to open new roads and to make such changes in old roads as it might deem necessary and proper was held valid, in so far as provides for the taking of private property by order of the county court for a public road, without notice to the interested landowner or a determination of the necessity therefor.
Again, in Dickerson v. Tri-County Drainage Dist., 138 Ark. 471, the court held that taking property for a drainage ditch falls within the State’s right of eminent domain, and the right may be exercised without notice to the property owner and without giving a hearing upon that question. Hence the contention that the judgment of the county court changing the public highway is void because no jurisdiction was acquired over the railroad company is not well taken.
It is next insisted that the judgment of the county court was void because the county court had no jurisdiction to change the existing highway so as to place a. part of it longitudinally upon the right-of-way of the railroad company. We do not think that this fact rendered the judgment of the county court void. The county court was not laying out an entirely new system of highways. The improvement district was organized for the purpose of improving an existing highway, and the county court, under the special act creating the improvement district, was authorized to change the existing highway if it should be found necessary and proper to do so. The special act provided that the method of procedure adopted by the general statute for laying out and altering public highways should be adopted in case a change in the public road should be asked. We must presume that the Legislature knew where the old highway was, and that it was in some places in the county close to and parallel with the right-of-way of the railroad company, and that when it authorized the county court to make the necessary changes in the existing highway it had in mind its location.
In testing the right to attack the judgment of the county court collaterally, the question is one of jurisdiction. If the county court had jurisdiction of the subject-matter, then the injunction will not lie in the present case. As we have just seen, the statute creating the road improvement district authorized the county court to change the existing public highway when it was found necessary to do so. Bearing in mind that the Legislature must be treated to have knowledge of its location with reference to the railroad’s right-of-way, the statute, by necessary implication, authorized the county court to change the highway so as to run along the right-of-way of the railroad company, if necessary to do so and if such use would not deprive the railroad of its use of the right-of-way, or materially affect such use.
Therefore the remedy of the railroad company, if aggrieved by the act of the county court, was to take an appeal from its judgment to the circuit court, and there, on a trial ele novo, to show the court that the laying out of a public highway longitudinally, even for a short distance, on its right-of-way would operate to deprive it of its right-of-way or to materially lessen its use for that purpose. See also Lonoke County v. Carl-Lee, 98 Ark. 345.
It follows that the chancery court was right in dismissing the plaintiff’s complaint for want of equity, and its decree will be affirmed.
