Independence County v. Sowell

149 S.W. 523, 104 Ark. 371, 1912 Ark. LEXIS 296

• Court: Supreme Court of Arkansas
• Decided: July 15, 1912
• Status: Published

Opinion

Kirby, J.,

(after stating the facts). It is contended, first, that the circuit court below, upon the first appeal, erred in remanding the case to the county court, with directions to appoint viewers for- the assessment of the damages to the land owners for the land taken as right-of-way for the new road established.'

The whole matter was before the circuit court for trial de now, and it determined that the old road should not be vacated, that the proposed new road should be established, and that the owners of the land through which it was laid out were entitled to the compensation allowed by law for their lands appropriated; rendered judgment accordingly, ordering it certified to the county court with directions to appoint viewers to assess the damages for said lands “which shall be ordered paid by the county court, if it deems the same proper and just.”- This was a final determination of the matter of the establishment of the new road, and the county court thereafter, upon a report of the viewers assessing the damages for the land appropriated therefor, was without power to decide that the new road was not of sufficient public convenience to warrant the payment of the damages assessed and disallow same, that question having already been determined finally by the circuit court, from whose judgment no appeal was taken; which judgment was a determination of the whole matter, except the amount of compensation due the land owners which was left to be ascertained by the county court through the appointment of viewers, as the law requires, said county court having only the authority to pass upon the reasonableness of the amount of damages assessed.

It was a judgment concluding any further question of the vacation of the old and establishment of the new road, and not a reversal of the action of the county court thereon with directions to proceed in a matter which the circuit court itself should have determined, as was the case in Batesville v. Ball, 100 Ark. 496.

The sufficiency of the affidavit and appeal to the circuit court was not questioned. The authority of Sowell to make the affidavit and take the appeal from the judgment of the county court disallowing the claims for the damages assessed by the viewers was not questioned in the circuit court, and can not be here for the first time o¡n appeal to this court.

The circuit court acquired jurisdiction by the appeal to pass upon the question of the assessment of damages; and since no complaint is made of the amount thereof, but only that the road was not of sufficient convenience to the public to require the payment of such an amount for the land taken, a question that could not arise after its final determination on the first appeal in the circuit court, its judgment awarding the damages as assessed is in all things affirmed.