ARK.] YOUNG V. GURDON. 399 I OUNG V. U-URDON. Opinion delivered June 22, 1925. . MUNICIPAL CORPORATIONS—CONDEMNATION FOR SEWERS AND DRAINS. —Under Crawford & Moses' Dig., § 4006, empowering municipal corporations to open and construct sewers and drains, and to enter upon and take land for such purpose, a city is authorized to condemn land for drains and sewers. . MUNICIPAL CORPORATIONS—CONDEMNATION PROCEEDINGS—RESOLUTION—MAJORITY VOTE. —Craw ford & Moses' Dig. § 4007, authorizing a city council to direct proceedings to condemn land to be instituted by resolution adopted by a two-thirds vote of the members of the council, a resolution 'authorizing such proceedings passed by unanimous vote of all the members of the council is valid. 3. MbNICIPAL CORPORATIONS—PASSAGE OF ORDINANCES.—Crawford & Moses' Dig., requiring that "all bills and ordinances of , a general and permanent nature shall be fully and distinctly .read on three different days unless two-thirds of the members composing the council should dispense with the rule," the adoption of a resolution by unanimous vote of :all the members of the Counc • il disp , enses with such requireinent. . 4. EMINENT DOMAIN— CONDEMNATION FOR , SEWERS AND DRAINS — EVIDENCE.—Evidence held to sustain a finding* that the ' fee in certain lots was required for drainage purposes. 5.. : EMINENT DOMAIN—POWER OF STATE.=the right and power Of 'the 'State to appropriate property , for public use or the general welfare is essential to . government and exists as an btherent and inektin-• guishable attribute of sovereignty, whether expressly recognized in the org . anic law of not.
400 YOUNG V. GURDON. [169 6. EMINENT DOMAIN—RIGHT TO . comPENsATIoN , .77 -.The ,.sovereign power of . the State to condemn and take for public use, involves the correlative right of the individual to just cOinpensaidon for the property which he has been compelled to surrender kir the •public welfare. 7. EMINENT DOMAIN—EXERCISE OF A LEetSLATI VE exercise of the power of eminent domain is' a legislative,' rather •than a judicial', function; and, while the courts are not absolutely concluded . by the action of the legislative department, its judgment , will be respected by the court, unless the Use be palpably private or the necessity for the taking plainly without reasonable foundation. 8. EMINENT DOMAIN—ExERCISE OF POWERDUTY OF coutrs.—When the Legislature or •he agency to . whom it has delegated the power of eminent domain has exercised such power, it is the duty of the courts, when the character of the use is challenged, to determine whether the purpose is a public one, and, if so, to preserve the right of the individual to compensation for his property. . 9. EMINENT DOMAIN—EXTENT OF PROPERTY TAKEN.—No more,property of a private individual and no greater interest therein can 'be condemned and set apart for public use' than is' absolutely necessary. 10. EMINENT DOMAIN—POWER TO CONDEMN FEE IN.LAND.—Crawford & Moses' Dig., § 4006, authorizing municipal corporations _"to enter upon . and take" lands for 'sewers aiid drains, is . broad enoUgh to confer the power to condemn either an eas'ement or the fee in land, as_ the exigencies of the .situa . tio . n may r . equire. Appeal from Clark 'Chancery Court . ; Johnson, . Chance : llor , ; affirmed. . John H. .C r' awf ord and Dwight H...CraWforcl; . for appellant, • McMtllan . ce McMillan, for appellee. . WOOD, J. In October, 1923, W...A. Young 'and his wife, L. E. Young, hereafter called' appellants, instituted an action in the Clark . ChancerY Court. , against B. 13. Young and the town of. Gurdon • et . al.,. alleging -that. they were the _owners- in .fee simple of threc lots 'in 'the town of Gurdon and seeking to enjoin the toWn and . the others named in the complaint from perrnitting' .treSpasses upon Such lots by creating 'and maintaining . thereon publie and
A R K. ] YOUNG V. GURDON. ' 401 • private nuisances. A temporary injunction was issued in accordance with the prayer of the complaint. At the time of the inStitution of the action the town 'of. Gurdon was ah inCorpOrated town. It afterwards be-caine . a city of the SeCond claSs; and as' such, in January, 1924; it institUted an action in the Clark Circuit Court against the appellants, in which it set up among other thing§ that it was seeking to establish a drainage system iii the city, and that in order to do so it needed for.that riurpoSe lots Nos: : 17; 18 and 19, belonging to the appel-,lants,' Which were the same lots' involved in the prior action.' The City Prayed . that the lots be condemned for the use of the city. The city of Gurdon will hereafter for convenience be' referred to as the appellee. . The appellants' answered the action in the. circuit court, alleging substantially the same fac6 as they had a ; ll • eged in their C • em • Plaint in the chancery Court, and prayed that the cause be transferred • to the chaneery dOurt and conkdidated With the action instituted by the'in against the appellee 'in :that Court. The circuit co-art ;granted appellants motion to transfer the cause to the chancery court, and -the causes , were there ;consolidated.
On the first of January, 1924, the appellee passed.a resolution "that, for the purposes of opening, constructing, and keeping in order and repair sewers and drains • from Joslyn Street, Corn's Addition to the city of Gur-don, to East First Street .on Crescent Heights Addition to the city of Gurdon,• Arkansas, lots 17, 18 and:19;-block '7, Crescent Heights Addition to Gurdon, being the property of L. E. Young and W. A. Young, be entered upon and taken possession of . by, the said city for the, purposes above mentioned, and that the same he condemned •as required by law for the use of said•city." The resolution was adopted, as shown by . the record of the council, by a unanimous vote, each of the members being recorded aS voting "Aye." The resolution was not read on three different days, nor did two-thirds of the members of the council expressly vote to dispense with such reading.
402 YOUNG V. GURDON. [169 Without setting out the testimony of the witnesses for the city in detail, it suffices to say that such testimony tended to show that there was a drain or branch which entered the city of Gurdon in the southeast corner and flowed in a sinuous course through the city in a northwesterly direction. It passed under the Missouri Pacific Railroad just north of the business district of the town. • Between the railroad and the branch all the banks, principal hotels, the only depot, and the principal business houses of the city, together with a large residence section, were situated. In some places. the bottom, or base, of the drain is 500 feet wide. , There are no improvements in the swale . or . drain itself: Bridges are maintained where the streets cross the swale for travel from east to west.. The Missouri Padfic trestle over the swale about 75 feet wide and ten or twelve feet high from 'the bottom of the drain to the cap sill of the bridge. The lots in controversy are triangular in shape. The branch iS the principal means of drainage for that part of Gurdon • east of .the railroad. The branch also, furnishes drainage 'for a territory about a mile in length and Width before it enters the city. In times of heavy rainfall the basin of this branch in the southeast part of the city is fal from hill to hill: The water during these times 'is about 500 feet wide and seven to eight feet deep over the lots in controversy. The opening of the railroad for the water to flow , 'through is sixty or eighty feet wide and about ten or twelve feet high. At such 'times it is necessary for the people living on the east side to come to the railroad trestle in order to cross the business section, the streets being impassable. The water brings down a deposit on the lots in controversy—logs, automobile tires and debris of every kind. During the dry season the ' b r ed of the branch above the lots in controversy is dry excepf there are occasional holes of stagnant water. The , city has a bridge over the drain parallel to the railroad whiCh is about twenty feet wide and seven or eight feet high over the drain. To handle the water during floods there is no other way except by the use of
' ARK.] YOUNG V. GURDON. 403 the lots in controversy as an outlet. • There is at all times water flowing across the lots. To handle the 'water in floOd times in any other way than by appropriation of these lots, it would be necessary td. cross high ground through other property abott : 900 feet in:length with: a drain or canal twenty feet deep and thirty-feet wide. One of the physicians living in the dty. of .Gurdon testified that from his observation it was necessary:for the proper tdking care of the waters for the citYto take practically an of the lots in COntroversy: It would . -take: all of the sOuth , part Of Same. - That; if a structure were built in the drain'on these lots, it would have fo be fully four . or five feet high to te above Overflow.' A building lovier than that :would stop the kvater the ditch...A building could :possibly be built on the west part of 'the lots close up td the sidewalk, there being highgiOund there Which holds : the Water •off the . street to' soine extent. There :Was testimony, tending to show: that -the : 'drift, 'Waste and stagnant poolS made the entire baSin unsanitary, •but such : -condition was More riionounC'ed On the lots 'in controve•sy. because there niost of the" drift: and' wasfe accrimulated. , : • The mayor Of 'the city testified that the drain where it crossed the lots in controversy was close enough to the resident and business section of the city to 'be a Menace to the' health" of the inhabitants if: the water , were permitted to stagnate along the drain. To keep it In a ' sanitary 'condition,. the city sh'ould hav contra of the drain, 'and; if the lots remained in-Privateowneiship, the-oWners-corild build . across the drain buildinks -Which would interfere with the.keeping of the same in a sanitary conditiOn, arid that-it Was' impracticable to divert the wathr of , the drain so that it would not croSs the lots in controversy:* In Octhber the tOwn Council r pasSed a ,-,resolution directing the property Owners dlong the branch to ele'an up their premiSes and a voluntary contributibn Was taken td enable the citizens to carry out the orders of the . city !council and' to 'cooperate with the authdrities out and draining the branch ' arid baSin. : 1\TOtice was
404 YOUNG V. GORDON. [169 served on , the appellants to clean up the lots in controversy, but they refused to do so and also to subscribe to the .community fund for that purpose. When the work of cleaning up Jim,. waste and letting out the stagnant water from the pools on the lots in controversy was begun, the appellants . .instituted this action, and the city thereafter instituted the action in the circuit court to condemn the property. . , The testimony of the appellants was to ;the effect that they were the owners of the . lots in controVersy. , , At the time they acquired the same the drain or wet weather branch ran through them.. There was ' never anythink wrong with the condition tof the lots until the.people began draining septic tanks,. into them and throwing rubbish along the sides of the branch and emptying sewage Irom surface' . closets in a. field above where . the draih entered the. town along the sides of the branch. The appellants did not object to the city or ahy .one, else keeping the ditch or drain in a sanitary condition. They did object to the mutilation of theirlots. The city and others, 'defendants in appellants ' action; had• entered and cut two or three trees and were plowing up appellants' lots when appellants sought.and obtained a temporary injunction. There was testimony tending to show that the . reasonable value of the lots in controversy wasIrom fifty to sixty dollars each. The trial court , f ound -that there . is now:and always has been a Khall stream or 'branch across said 'Pots, used by the city . fOr its drainage and sewerage, and further found that to.maintain this drainage system and`tq properly drainand sewer certain portions of .said city-, the .city needs an easenient through and upon all of the said lotS; that the value of said. lots is $150 and that the value of the easem6nt in .said lots is $150. • The court declared the law to be that the right that shduld be acquired by the city is an easement in and over all of the said lands, and that the fee in said lands subject to said easement should remain in said L. E. and W. A. Young.
; AR.] YOUNG v. GURDON. 405 ' The court entered , a decree condemning the lands in 'controversy for an easement for the use of the city ,for 'drainage purposes upon the payment of $150 by, the city, and entered a decree dismissing the appellant's complaint for want of equity, from which is. this appeal. , 1. Section. 4006 of Crawford & .Moses 7 . Digest, confers upon municipal corporationsthe power "to open and 'construct, keep in order and rePair, , sewers . and drains ; tb enter upon, or take, for , such of the abbire purpose's as may be required, land . or material." The abelie section confers , anaple , authority Upon the city of Gniclon to.condemn the lots in controversy for draining the' City. See 11/1"cLaiughlin v. Hope, 107 Ark. 443. j udge Dillon Says "On the ground that the pUblic health, convenience, and welfare will be thereby promOted, the Legislature MaY authorize the condemnatibn of 'private Property . for the purpbse of using the same for * .* the' constr&tion of drains and . sewers." 3 Dillon On 'Municipal Corporation, § 598, 'and eases there cited. "Drains and sewers," as used .in our statute, are not synonymous, and are. not convertible terms, though it is* obvious that teach under the circumstances might include the other.- 2. Having determined that the 'appellee had the authority to condemn the lots in 'controversy, the next qnestion is did it' adopt the proper procedure? Section 4007, Crawford & Moses' Digest;in effect provides that nb ithproVement shall be made which will require proceedings to condemn private property withdut the; concurrence in the by-law," Ordinance, or - resolution directing the same 'of two-thirds' Of the whole number of members elected to the coUncil. The resolution under which the procedure to condemn was 'inaugurated was 'Passed by a unanimous vote of the council. ' The above statnte author-• izes the council to direct' proCeedings to condemn ti ) be instituted by resolutio'n adopted by a two-thirds ., -vote of the whole number of members of the' council. Here,' the resolution was unanimously adopted.* , •. : The record shows that all councilmen were present. (Rep.)
406 YOUNG V. GTJRDON. [169 The aPpellants contend that; inasmuch as the resolution .was read only. one tiine, it was not legally adopted under the provisions of § 7 1 502 of Crawford & :MOses.' Digest, which requireS that'" all bills and ordinariCes of a general and pernianent' . nature Shall be and distinetly re . ad on th . ree different daYS unless two- thirds of the memberS coMposing the conneil should dispense with the rule:'! It is unnecessary for us to decide;land We do 'not decide, whether such 'section is ' aPplicable to the 1 :esblutiori' Under' consideration. F6r. conceding that the section iS apPliCable, the-adoption' 6f the resolUtion by a unaninious vete * oT the council dispenses With the 'rule Such was the legal effect of the action of the C , ounci . l.- ;ff • 1■;' cas , e of :Nevbol4v ,. Stuttgart, 145 Ark. 544, upon : which the appellants rely,is not applicable,for the reaSon that, the ordinance in that case was not enacted by, two7 thirds of the members elected to , the city council., 3. The only-remaining question; is whether r or not wider the pleadings and proof the' 'court erred in condemning the entire' lots' of -the appellants for drainage purPoses.-It will be observed that the court found that, to 'properly drain and sewer certain portions. of the City, “the eitfneeds.an easement through and upon all, Of said . lots:", The court found Abaft' the''value of the lots -.was $150 and the value of ; the easement was $150. .An examination of the complaint will. show that the appellee was. seeking' tO condemn the fee of the appellants-i-in other words, to take over the' entireTroperty in the lots for the use . of the city. That Was the: issue 'raised in.the condemnation proceeding. The appellee, as we have seen; had:the, power under the statute to condemn the entire property, that is, the fee therein, if required for drainage pUrposes. The decree of the. court, even; thOugh it designated the cOndernnation as that Of an easement, was nevertheless tantamOunt to .cOndemning the . appellants' entire property in the lots for the use of the city for drainage purposes, and it occurs to us that its action
ARK,] YOUNG V. -Guimo g. 407 in so doing , was authorized and justified not only .by the pleadings but also by•the eviden:ce. - The right and power of the State to appropriate private property for public , use or the general Welfare is essential to government and exists as an inherent and inextinguishable attribute of .sovereignty, whether 'expressly recognized' in *the organic law or. ndt. • See Lewis on:Eminent Domain; page 6, § 3, and numerous case§ cited in note. But the State's ancient right , of 'eminent domain is fully and expressly conceded in our Constitd-tiOn. Art.. 2,' § 23, ConstitutiOn 1874: Under' onr • governmental system the right of an . individual:to .acquire and posSess and: protect property is an inherent and inalienable right and declared to be higher, than any constitutiOnal sanction.'. Art. , 2,: §§ .2 and' 22; 'Constitution. The sovereign power of the State-to condemn and take for public use. involves the correlatiVe' right Of-the indiVidual to just conipehsation fer the property -Which he has been compelled to surrender for the public welfare. -. See art. 2, 22, Constitution. . . The exercise of the sovereign right and pdwer of eminent- domain, as above defined, is lodged in the Legii-lature.... It is a political and legislative, rather than a judicial, function. "Of the necessity or expediency of exercising -the right 'of eminent' domain;" says Judge Dillon,. in the 'appropriation of private property to public use; ;the opinion of the Legislature, or of the corporate bo0 or triburial.nrion which'it haS conferred the power to determine,the question, 'is _conclusive upon the 'cotrts, since Such a question is eSsentially political in its natnre -and not -judicial." The learned author further says : "Whether the' specified'use is a public use .Or . purpose, or such use or purpose , as will justify or sUstain the &AU"- pulsory taking of private property, is perhaps ultiniately a jUdicial . one, and, if so, -the courts Cannot be absolutely Concluded by the actidn' s or . opfnion of • the legislative department. But, if the Legislature has declared the use or purPose to be"a publie one, its judgment will be respected by the coUrts; unless the use be palpably pH-
408 YOUNG V. GmuioN. [169 vate, , or 'the necessity for' the taking' plainly without reasonable foundation." 3 Dillon on ,Municipal Corporations,'• p. 1640,, §-600,,and cases there cited. As Chief Justice , COCKBILL, speaking for the court in , Railway Company v.. Petty, :57 Ark. 359; 365, says : "When once the character of the use is found to be lic'the court's inquiry ends, and .thelegislative policy is left supreme." "When once the Legislature; or the gov-' ernmental agency to whom it ,has , delegated the power, has determined to exercise that right iri the' Manner prescribed by the law-making body, it is then the exclh-siVe province , and duty of .the judiciary, when the character of the prop6sed use is challenged, to determine whether the:purpose is a public one, and, if sO; to . 'preserve the right of the individual to just compensatiOn. for 'his property. The measure of compensation is pureVra judiCial and not a legislatiVe question." HOxie v. :Gib-son, 155 Ark. 338. •See also , North Laramie Land Co. v. Hoffman, 268 U. S.' 276. : , Now, when these axiomatic doctrines of constitu•- tional law are applied to the facts of this record, it will be seen that the appellee was seeking to condeinn, , not a, part, but the whole of the lots in controversy for the purpose of drainage. , The appellee followed the procedure prescribed in §§ 4009 , and 4010 of . 'Crawford MoseS? Digest. The undispUted testimony discloses that the drainage system for which the appellee was : proposihg to take appellants' lots was a public purpose. Whether or not the .appellee needed the 'whole Of the lots in controversy for drainage , purposes, and the meashre of appeb lants' compensation for the property taken, were purely questions of fact. It could serve no useful purpose "and would unduly extend this opinion to set . our further and discuss in detail the testimony bearing on these dssues. We are convinced that , the findings of the trial c6hrt both issue are not clearly against 'the preponderance' of the evidence. The a p pellants contend that it was not within the power of the court to condemn an easement in their prop.
ARK.] YOUNG V. GURDON. 409 erty,.bift, if * mistaken and if it be within the court's juris-. diction, that 'appellee did not take the proper steps to do so. In determining the correctness or incorrectness, of the court's decree, it . must be judged by •its legal. effect taken as a whole, rather than by some particular words in the decree characterizing er designating the court's action. A . s we have already stated, the effect of the court's decree was to condemn appellants' entire property for the use Of the city. ' This aetibn was clearly authorized by the Legislature under the general power conferred Upon municipal corporations. 'Section 4006, C. & M. DigeSt,.supra. It is a sound principle to apply under the doctrine, of eminent, domain that .ne , more tiroiDelity of a private individual, and no, greater 'interest therein, can . be condemned and- set apart for. public . use than is absolutely necessary. Cooley on Constitutibnal ,Limita-, tions:, 7 Ed. p. 779 ; Mills on ' Eminent Doma . i n . , p. 110, § 23. Now, the language of ' our statute, § 4006, supra, "to, enter upon or take," is broad enough to cOnfer the power to condemn either . an . easement or the fee as the exigencies of the situation may require. As is' said by the Supreme Court 'of MassachusettS: There are no 'eacramental words which 'bust' be used in a statutory . power 'to take and holdlands in order to give a right to 'take the.land,in Newten v.1 Perr, 163 'Mass.. 319. The facts' of' this record' justify the trial court in reaching the conchision that the appellee . needed 'the . lots controVersy. ' to piop-' erly drain and sewer Certain PortiOns the city: 'It Was a •permanent-improvement, and:to -properly construct-frit,- it was :. necessary to 'take over the entire rights . of the appellants therein.. Therefore, the f011Owing language of the Supreme ,CoUrt of the United States:in Sweet , :v.': Rechel, 159 U. S. 380, 395, iS exceedingly apposite : ' "On the whole, therefore, the plan 'of ' compelling the city to take the land in foe simple;'and the owner to part with his:. whole title-for a just compensation, would seenato be the niost sin : 1131e and equitable that mild be adopted:" ' ":••• Therefore the trial court' erred in not 'declaring th&f the . citY had the right to-condemn the land in fee..simple.
The prayer of the cross appeal is granted, : and the decree is reversed, with direetions to enter a decree declaring the fee . in the land . in controversy, to be in : the 'town of Gurelon : Upcin payment of the 'amount adjudged as the.: value thereof:
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.