White v. Lorings

John I. Purtle, Justice. A petition to incorporate the town of Wrightsville pursuant to the provisions of Ark. Stat. Ann.§ 19-101, etseq. (Repl. 1980) was rejected by the Pulaski County Court. The appeal to circuit court resulted in a trial de novo in which the petition was again rejected. On appeal to this court the appellants urged that (1) the trial court erred in holding that the amended petition did not satisfy the requirements of Ark. Stat. Ann. §§ 19-101 and 19-106; (2) the trial court erred in holding that much of the area proposed to be incorporated is agricultural or open and vacant and would not derive any benefit from incorporation, but would be subject to taxation; and, (3) the trial court erred in holding that the area proposed to be incorporated is unreasonably large. We agree with the appellants for reasons to be explained below. Pursuant to the rights granted by law more than 150 registered voters residing within the area designated as the town of Wrightsville, Arkansas, petitioned the county court for incorporation. During the time the matter was pending in the county court several petitions were added and certain changes were made in the geographical boundaries. On October 19, 1979, the county court denied the people the right to incorporate. Notice of appeal was filed November 9, 1979. The entire record was designated as the record on appeal. The case was heard de novo by the circuit court in piecemeal fashion commencing July 11, 1980. Testimony was taken and exhibits were introduced on that date, one of which was a map of the area proposed for incorporation. There was no question as to the accuracy of the map. Testimony indicated that the area proposed for incorporation was about two and one-half miles long and three-quarters of a mile wide on the average. The plat was subsequently amended leaving less than two square miles in the area proposed for incorporation. Testimony revealed there were 410 houses, 25 businesses, seven churches, one school and one post office within the area. There were 919 people living in the area. At the hearing on July 11, 1980, several remonstrants were heard and they obtained an agreement to have part of the territory deleted from the proposed incorporation. A subsequent hearing was held on August 22, 1980, and the amended plat was marked and introduced into the record as Plaintiff’s Exhibit No. 7. Four areas had been deleted from the original proposed area of incorporation. The remaining area in the proposed town of Wrightsville was approximately 900 acres (640 acres equals one square mile). After the area proposed for incorporation was redefined there was no testimony or evidence presented indicating the area was unreasonably large. On September 2,1980, the court announced that neither side wished to produce any additional testimony and the court would take the matter under advisement. Briefs were filed by the parties. On September 22, 1980, the court issued a memorandum opinion holding against incorporation of the area. This was reduced to judgment on November 12, 1980. The judgment recited that (1) the court was not persuaded that the petition for incorporation, as amended, satisfied the requirements of Ark. Stat. Ann. §§ 19-101 and 19-106; (2) much of the area, as amended to be incorporated, is agricultural or open and vacant and would not derive any benefit from incorporation, but would be subject to taxation; and, (3) the area to be incorporated is unreasonably large. Ark. Stat. Ann. § 19-101 controls the matter of petitioning for the incorporation of a city or town. The statute requires that 150 qualified voters residing within the described territory may petition to be incorporated. Ark. Stat. Ann. § 19-102 provides for a hearing by the county court on a petition for incorporation. It specifically provides that affidavits for and against a petition may be prepared for, submitted to and examined by the court. About the only limit placed in this provision is that the county court may not increase the area proposed for incorporation but may delete portions of land proposed for incorporation. Ark. Stat. Ann. § 19-106 provides for a hearing in circuit court when the decision of a county court is appealed. This statute provides that the matter may be heard in a summary manner; receiving answers, affidavits and proofs, as may be deemed pertinent. The statute provides that the court shall not approve the incorporated area if it finds: (1) that the area does not contain the requisite number of inhabitants; or, (2) that a majority have not signed the petition; or, (3) that the area is unreasonably large or unreasonably small; or, (4) that the lands are not properly and sufficiently described. The order of the trial court, as set out above, first stated that the court was not persuaded that the petition for incorporation satisfied the requirements of Ark. Stat. Ann. §§ 19-101and 19-106. There was no other reason given at that point. The court further found that much of the area to be incorporated is agricultural or open and vacant land and would not derive any benefit from incorporation but would be subject to taxation. Obviously, the court was taking into consideration the statutes which provide for annexation of territory to an already existing town. Indeed, Ark. Stat. Ann. § 19-307.1 provides that lands used only for agricultural or horticultural purposes and where the highest and best use of certain lands is for agricultural or horticultural purposes shall not be annexed. There has never been such a provision in the statutes governing the original incorporation of towns and cities. In fact, Act No. I of the Acts of the General Assembly of 1875 is still the controlling act relating to the incorporation of cities or towns. The third reason the court gave for denying the incorporation was that the area to be incorporated is unreasonably large. The area was described as containing approximately two square miles and 919 inhabitants. From looking at the aerial map and the map prepared by the land surveyor it is obvious that most of the land is occupied and developed. The only testimony presented relating to the area being unreasonably large was by Richard Stephens, a resident of Pulaski Heights in Little Rock, Arkansas. He stated that he was an MAI appraiser and a member of a number of professional organizations. In any event, he stated: Q. Based upon your on-site inspection and on your knowledge and training as an MAI inspector or appraiser, do you have an opinion as to whether the limits of the proposed incorporated town are unreasonably large? A. Well, I don’t know that they’re unreasonably large. I would — the density of population that’s present in the area now would seem to me to be in a more restrictive portion of the area than it is according to these boundaries. This testimony was elicited during the August 22, 1980, hearing prior to the time when the appellants eliminated the known farm land from the proposed incorporation area. After the agricultural land was eliminated, there was no testimony in the record stating that the area was unusually large. Therefore, the only conceivable basis for this holding was Plaintiff’s Exhibit No. 7. As we view Plaintiff’s Exhibit No. 7 it shows almost the entire area to be developed into subdivisions containing a significant number of structures. What is referred to as the original town of Wrightsville was platted and filed for record on July 29,1881. The town of Tafton was platted on October 23,1899, and an addition was added on May 21, 1914. The area between Tafton and Wrightsville was platted as the Mary E. Jones Subdivision in 1924. Thus, the majority of the area proposed for incorporation has been platted in town lots since 1924. The only time we have considered an area to be unreasonably large appears to be in Arkansas and Ozark Railway v. Town of Busch, 223 Ark. 27, 364 S.W. 2d 54 (1954). In Busch the facts revealed that there was a strip of land one-quarter of a mile wide and approximately three miles long which connected the store and land owned by Mr. Huffman to the Missouri state line. The whole area contained only 21 inhabitants. The express purpose was to allow Mr. Huffman to sell gasoline at Missouri prices because he would be in a town adjoining the Missouri boundary. This situation does not compare in any manner to the case before us. Although there is no definition for “unreasonably large” or “unreasonably small,” we have to use common sense in passing judgment upon such matters. In considering an approximately two square mile area containing more than 900 people with its own post office, school and over 400 other buildings, we are of the opinion that the area does not fall within the definition of unreasonably large. Therefore, the court should have allowed the incorporation. The case is remanded to the trial court with directions to permit the incorporation of the town of Wrightsville. Reversed and remanded. Hickman, J., dissents.