Cain v. Littrell

McHaney, J. This ease originated in the county court of Madison county, where appellees petitioned said court for an order establishing or changing the route of a county road 'between the villages of Purdy and Marble, in said county. The order was granted establishing the road, a portion of which passes over the land of appellee Littrell, and this portion has already been constructed, 'and a portion over the land of appellants. An appeal was prosecuted to the circuit court, where the cause was submitted, taken under advisement, and an independent investigation was made by the judge in the way of a view of the route, and it was found by the court that the proposed road was necessary and convenient as a public road. Judgment was accordingly entered, and judgment was also entered against the petitioners fo'r the costs and damages, of which they make no complaint. The first contention for a reversal of this judgment is that the proceedings of the viewers are not valid and binding; that they were directed by the order of the county court to view and lay out the proposed road from a junction with the Marble-Purdy road to its connection with State Highway No. 68, a distance of nearly two miles, which they did not do, but viewed and laid out only that part of the road to be located on the lands of appellants. We think they are wrong in this, as the old road and the proposed road had been previously viewed and laid out by the same viewers, and the road established by the county court on that report and a major portion thereof actually constructed. The description employed by the viewers was the surveyor’s description of the previously constructed road, except the portion across the land of appellants. It is said that the report of the viewers is void, because it was changed by someone by attaching the surveyor’s description of the route of the road instead of the description thereof made by the viewers themselves. The viewer who testified that the surveyor’s description was not in the report when it was signed also said the report does describe the proposed route which they laid out. This does not make it fraudulent or void as it is not disputed that the report of the viewers properly describes the route they recommended to the court. It is next argued that no sufficient notice was given appellants of the meeting* of the viewers. Section 6948 of Pope’s Digest provides: “The county court shall issue its order directing said viewers to proceed on .a day to be named in said order, or on failing to meet on said day, within five days thereafter.” And § 6949 provides that one of the petitioners shall give at least five days’ notice in writing to the landowners affected of the time and place of the meeting. A copy of the order of the county court appointing the viewers was mailed to appellants. We think this a substantial compliance with the statute, but even if it were not, failure to give any notice would not be fatal, or render tbe order void. It was so held in Howard v. State, 47 Ark. 431, 2 S. W. 331, and in Lonoke County v. Carl Lee, 98 Ark. 345, 135 S. W. 833. In tbe latter case the court quoted from the former as follows: “The landowner cannot be said to be deprived of his rights to be heard by the want of notice of the viewers’ meeting. The assessment of damages by the viewers is not of itself binding upon him. It requires the judgment of the county court to give it any force or validity. It is made the duty of the court to see that the award of damages is just to the public and the individual, and the landowner, who is a party by virtue of the publication, is thus afforded his day in court, regardless of the report of the viewers.” Finally it is insisted that the trial judge committed error in making a personal view of the proposed road, its convenience and necessity, and that it was error to render judgment against the petitioners and to deny appellants the right to recover damages against the county. As to the judge’s visitation, we think he had the right to do so, both sides being present in person or by counsel, or having the opportunity to be present. The evidence adduced in court was sufficient to support the court’s finding of public convenience and necessity, and the visitation of the judge did not deprive appellants of any substantial right. As to the judgment against appellees instead of the county, appellees say the court did render judgment against the county, but because of a clerical error the record does not show it. If this be true appellants may, if they are so advised, have the judgment corrected nwic ipro tunc. Appellees are not complaining of the judgment against them, and if they do not pay, or are unwilling to do so, under the provisions of § 6953 of Pope’s Digest, the court might declare such road not a public highway, and adjudge all costs against the petitioners. Affirmed. 'Smith and Humphreys, JJ., dissent.