Williams v. Fort Smith

McCulloch, C. J. Rogers Avenue,.in the city of Fort Smith, was paved many years ago through the agency of an improvement district organized for the purpose of paving that and other streets of the city. The paving was constructed of bricks, which have about worn out, and another improvement district, known as Paving District No. 16, has been organized for the purpose of repaving Rogers Avenue with better material. Paving District No. 16 has no connection with the former district, and the boundaries of the two districts are not the same. In order to repave the district, it has become necessary to remove the old bricks. The city commissioners of Fort Smith propose to use the old bricks for the purpose of paving another street — -little used — and for the paving of which the old bricks, though worn, will be sufficient.. Appellants are owners of real property abutting on a portion of Rogers Avenue which is to be repaved, and they lay claim to the old material as such abutting owners, and they instituted this action in the chancery court against the city of Fort Smith and its commissioners to recover possession of the old material or its value, and to restrain the city commissioners from appropriating, it to the use of the city. The chancery court denied the relief prayed for, and an appeal has been prosecuted to this court. We are of the opinion that the decree was correct. The old improvement district was but an agency for the purpose of constructing the improvement. The district gained no proprietary interest in the street, and whatever control was given to it for the purpose of making the improvement ceased upon the completion of the improvement. Pine Bluff Water Co. v. Sewer District, 56 Ark. 191; Pulaski Gas Light Co. v. Remmel, 97 Ark. 318. The authority of the municipality over the street did not pass away from it on account of the authority given to the improvement district for a special purpose. Pulaski Gas Light Co. v. Remmel, supra. Neither did the taxpayers of the district, as such, or as abutting owners, gain any proprietary interest in the street or in the material used, by reason of the fact that the improvement was constructed and paid for by taxation on the benefits to adjacent property. Authorities cited by the appellant as to the rights of abutting landowners to trees, minerals or other substances in a street dedicated to public use have no application to the present case. It is immaterial whether the city owned the fee or merely an easement. The city’s continuous control over the street carried with it the right to make use of discarded old material. There is no question involved in this case of the right of abutting owners or the taxpayers in an improvement district to prevent an improvident waste of an improvement constructed with special taxes levied on the benefits to their property. It is not contended that the street does not need repaving, nor that it is a useless waste of material to tear up the old pavement and put down new. The only question raised is the bare one as to the title to the old material, and we are of the opinion that the city has the right to make use of the old material. The decree is therefore affirmed.