Thе Arkansas State Highway Commission filed in the county court of Saline county a petition in which it set up that a certain public road in that county known as the “Benton-Bauxite road” was “a part of the Access Highway System,” and that it was deemed necessary by the State Highway Commission of the State of Arkansas, acting as agent of the federal government, that certain changes, set forth in detail in the petitiоn, in the location and width of said highway be made, and it prayed for an order of the county court making the changes in the locatiоn of said highway and condemning the necessary right-of-way therefor. The highway in question was one leading from Benton to the aluminum field at Bauxitе, and apparently the federal authorities deemed the road important enoug'h in the war effort to justify the national government in defraying the expense of improving it.
On April 28, 1942, the county court made an order granting the prayer of the petition and condemning the land required for the new right-of-way. Thereafter, on June 16,1942, without notice to the State Highway Commission, the county court made an order modifying the order of April 28,' 1942, so as to eliminate certain paragraphs therefrom, the effect of this modification being • to make сhanges in the-right-of-way adjacent to the land of ’B. A. Fletcher.
The State Highway Commission appealed from the last order, and on thе hearing in circuit court the State Highway Commission introduced testimony tending to show that the changes in the highway route which were made by the сounty court were material ones, not approved by the Federal Bureau of Public Roads, and that after the original order was made by the court, and before it learned of the modifying order, the State Highway Commission had let. a contract for the improvemеnt of the road in accordance with the route as established. in the original order. On behalf of appellée, testimony was adduсed to show that the changes in the right-of-way made by the county court in the latter order were propér. The circuit court affirmed thе modifying order of the county court, and the State Highway Commission has appealed.
The county court did not have the authority, on thе original hearing of the State Highway Commission’s petition, or thereafter, to make changes in the plans for the highway improvement or in the right-of-way therefor, as set forth in the petition of the State Highway Commission. The county court had the power to grant or deny the рetition in loto, but it had no authority to make any changes in the project petitioned for by the State Highway Commission. The county cоurt could have refused to exercise its power in procuring right-of-way for the improvement, but it could not, in exercising its power to сondemn right-of-way, make of the project a different one from that petitioned for by the State Highway Commission. '
The situation here is somewhat analogous to that presented in the case of School District Nos. 14; 15, 44 v. County Board of Education,
This was a condemnation proceeding brought by the State Highwаy Commission, and the power of the commission to initiate this proceeding has not been chailenged. Since it liad this power it also had discretion to determine the route and the location of the right-of-way. “A broad discretion is necessarily vested in those to'whom the power of eminent domain is delegated, in determining what property is necessary for the public purpose, with respect to the particular route, line, or location of the proposed work or improvement; and the general rule is that the courts will not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion. The landowner may not object merely because some other location might have been made or some other property obtained which would have been suitable for the purpose. ”
In 29 Corpus Juris Secundum, p. 886, it is said: “Under a delegation of the power of eminent domain the grantee of the pоwer,' in the 'absence of legislative restriction, may determine the location and route of the improvement and of the land tо be taken for it, and such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious, or in some respects beyond the privilege conferred'by the charter or statute.”
Justice Butler, speaking for the court in the casе of Patterson Orchard Company v. Southwest Arkansas Utilities Corporation,
There is nothing in the record that would justify a finding that, in selecting the route or the location of the right-of-way, the State Highway Commission acted in an arbitrary or capricious manner, and, in the absence of such a showing, the courts may not interfere with the exercisе of this discretionary power by the commission..
The judgment of the • circuit court is accordingly ■reversed and the cause remanded with directions to the circuit court to set aside the order made by the county court on June 1G, 1942, modifying its order of April 28, 1942, establishing the right-of-way pf the highway involved herein.