Fitzgerald v. Saxton

Bunn, C. J., (after stating the facts.) The first question that confronts us is that submitted to us by the paragraph of the agreed statement of facts quoted above. It seems that the main reliance of the appellant in the case of Webster v. Little Rock, 44 Ark. 537, was that this court would declare the act of April 28, 1873, unconstitutional, since it was by virtue of that act, if at all, his property and that of his co-plaintiffs, including the property herein involved, had been placed in the city of Little Rock, as being property coming under the description set forth in that act. This court, in the case of Webster v. Little Rock, supra, having under consideration the constitutionality of that act, and also the question as to whether or not, by its provisions, Marshall & Wolf’s and Faust’s additions to the city of Little Rock were not included in the city, held the act to be constitutional, and that said additions were all by its provisions included in the city, and say : “Lincoln’s addition is not named in liis (the chancellor’s) finding, but the effect of the decree is the same upon it as the others.” Elswhere in the opinion in that case, the court, by Judge Eakin, makes it appear that the inclusion of Marshall & Wolf’s and Faust’s additions in the city limits is dependent upon the inclusion of Lincoln’s addition, for the patent reason that otherwise the first named additions, without Lincoln’s addition, were not contiguous to the city, Hide street being the west boundary line theretofore. The court certainly held Lincoln’s addition (including the Catholic property, or that in controversy) to have been placed in the city by the act. We think also that, aside from questions springing up from the force and effect of that and perhaps other acts of the legislature, the property in controversy has been regarded as, and in fact has been, a part of the city of Little Rock since the passage of that act, to-wit, April 28, 1873. Without going into the inquiry whether or not Bishop street through and over this land (by reason of former acts of dedication by any of the owners of the ten acres, and of acceptance by the city,) has in fact become a street and highway of the city for public use, we leave that question to be solved in some more appropriate proceeding, and turn our whole attention to the status of Tenth street, as projected through this property, as this is the question at last. It appears from the testimony of the witnesses in the case that a road over and across the land in controversy has been used by the public as far back in the past as the oldest person now living can remember ; and, from the testimony of witnesses best and longest acquainted with the locality, that this was a public county road until the land became a part of the city of Little Rock, about twenty years ago, by virtue of the act of the legislature referred to; and that since that time the travel has continued, first by roads changing for convenience and availability (always over the tract however) and gradually concentrating upon the location known as “Tenth Street,” as obstruction would be placed in the other tracks and roads ; and that Tenth street over said land has been opened to travel since its inclusion in the city, and some say before that time. Some of the witnesses say that the public road, which was known as the “Mt. Ida Road,” was on the same ground, substantially, as Tenth street, as it extends over this property ; others say that the original public road going west, after leaving the city at the intersection of Tenth and High streets, inclined as much as forty-five degrees south of west, but finally got back on the line of Tenth street extended westward in front of the “ Lincoln House,” three or four hundred feet west of the west boundary of the land in controversy, as appears from the plat which is a part of the transcript herein. The evidence is overwhelming and conclusive that the road aforesaid, from a time many years antedating plaintiff’s ownership of the land, has run over and across the same, and has been substituted by Tenth street, if not indeed always of the same location as that street. It further appears that the streets, blocks and lines, as claimed by appellees, into which the tract is divided, are in exact conformity with the plat of the city, and that they have furnished the data and basis upon which all descriptions in conveyances made by plaintiff and his agent have been predicated, and that all parties, seemingly, have treated and dealt with the property as if it were city property containing the subdivisions and streets aforesaid. On the other hand, the plaintiff says, in effect, that whatever in this direction has been done by him, was done for convenience, and not to dedicate said street to the public, as such; that no such dedication has ever been made, to his knowledge; that, about the time he first heard of the movement to create this improvement district, he built some houses on the northeast block of this property on High street, thereby stopping the public travel over said block, and compelling it to go down to Tenth street and along said street to where it intersects Bishop street, and thence southwest out of the city. 1. Jurisdico°er If is the law> now settled and recognised everywhere, that, as a city is extended so as to take in territory, the jurisdiction and control of the county over the highways in such territory is determined, and the city immediately becomes possessed of the same. Thus, when the land in controversy became a part of the city of Little Rock, the public road then leading over and through the same fell under the jurisdiction and control of the city, and the city became at once responsible for the condition of this road as a public highway. This is an easement which the public have, and the owner of the fee has no right to permanently and materially disturb it, and the easement continues in all its force when the road has become the highway of the city. Rlliott on Roads and Streets, pp. 311-318, and authorities therein cited. 2. Effect of route of ugh-way. Again, it appears that there is some conflict in the testimony of witnesses as to the exact location of the J county public road over the property before it was taken into the city ; some saying that it was substantially the same as that of Tenth street, and others that it ran across the blocks as laid off in the plat. This, of itself, really makes no difference. In behalf of the city, to substitute Tenth street, as laid off and left open by the owner and his predecessors, for the public road,wherever it may have run, was more in harmony with its general plan, and therefore more convenient and desirable in many respects. In behalf of the owner, it is eventually more to his interest to concede the ground occupied by Tenth street than that the public should continue to cut up his lots and blocks by an irregular highway. The long continued use by the public, before the institution of this suit, of Tenth street, as extended over the land, as a highway, in substitution for the original road, and the long acquiescence of the owner of the soil, amounts to a new dedication. Hobbs v. Inhabitants of Lowell, 19 Mass. 410 ; Almy v. Church, 26 Atl. Rep. (R. I.) 58 ; Wyman v. State, 13 Wis. 663 ; Howard v. State, 47 Ark. 437 ; Patton v. State, 50 Ark. 53. In all such cases as this, it is considered that the public, primarily, has a right in the original road, but the public, at the invitation or by the acquiescence of the owner of the land, may adopt a new route, and its use of the same for the statutory period, without objection on the part of the owner, will be considered a valid substitution of the new location for the old. Any other rule would leave the owner in the attitude of a violator of the law when he has obstructed the old route in any way, for the public is entitled to the use of the one or the other. We are of the opinion, therefore, that the chancellor erred in perpetuating the injunction against the appellee commissioners, their employees and agents, and that he did not err in decreeing the taxes levied by them to be a valid lien on the land designated. The decree of the chancellor is reversed as to the perpetuation of the injunction, and affirmed as to said taxes and refusal to assess penalty and attorney’s fee, and the cause is remanded for further proceedings in accordance herewith.