252 JUSTICE V. GREENE COUNTY. [191 JUSTICE V. GREENE COUNTY. 4-3930 k_JIJIII1V11 u eiiveieu 1 T u -. u 1 i _ y _ 0 1 119 EMINENT DOMAIN-HIGHWAY CONDEMNATION.-A landowner whose land has been condemned for highway purposes, but who has neither filed hi's claim for damages within one year from the taking nor established such claim in a proper proceeding has no ground to complain that the county's general revenue and bridge funds for the current year have been exhausted, since the county could not anticipate such claim i'n its 'budget until -the amount of the owner's damages has been determined. Appeal from Greene Circuit Court ; Neil Killough, Judge ; affirmed. Partlow & Rhine, for appellant. Carl E. Bailey, Attorney General, Thomas Fitzhugh, Assistant, and Neill Bohlinger, for appellee. HUMPHREYS, J. This is an appeal from a judgment condemning a right-of-way or an extension of State Highway No. 25 through six and one-half acres of land belonging to appellant adjacent to the city of Paragould in Greene County, under § 5249 of Crawford & Moses'
ARK.] JUSTICE V. GREENE COUNTY. 253 Digest, which reads as follows : "The county court shall have power to open new roads, to make such changes on old roads as they may deem necessary and proper, and to classify the roads and bridges in their respective counties for tbe purpose of this act, and when the change shall be made or any new road opened, tbe same shall be located on section lines as nearly as may be, taking into consideration the convenience of the public travel, and first class roads hereafter established or opened shall not be less than fifty feet wide, and an appropriate order of the county court shall be made and entered of record therefor. If the owner of the land over which any road shall hereafter be so laid out by the court shall refuse to give a right-of-way therefor, or to agree upon the damages therefor, then such owner shall have the right to present his claim to the county court, duly verified, for such damages as he may claim by reason of said road being laid out on his land; and, if he is not satisfied with the amount allowed him by the court, he shall have the right of appeal as now provided by law from judgments of the county court; provided, however, no claim shall be preserited for such damages after twelve months from the date of the order laying out or changing any road; provided, further, that when such order is made and entered of record laying out or changino . any road, the county court or the judge thereof shall h b ave the right.to enter upon the lands of such owner and •proceed with the construction of such road. Provided further, all damages allowed under this-act shall be paid out of any funds appropriated for ° roads and bridges, and, if ;none such, then to be paid out.of the general revenue fund of the county." . . The judgment of condemnation was . rendered by" the county court of said county on the 7th day of June, 1934; in which appellant was allowed one year from that 'date to file a claim for damages in said court. An appeal waS taken from the county court, and the validity thereof attacked on the ground that the appropriations of the county for the fiscal year of 1.934 for other purposes exceeded tbe revenues assessed by $7,605.73, leaving noth- . ing with which to pay appellant any damages. On the
254 JUSTICE V. GREENE COUNTY. 11191 trial in the circuit court, appellant introduced proof tending to show that the revenue to be derived from all sources in the fiscal year of 1934 had been appropriated for other purposes, leaving nothing with which to pay his claim. Under this proof, the circuit court dismissed appellant's appeal, and sustained the judgment of condemnation rendered by the county court, from which is this appeal. It is contended by appellant that the trial court erred becanSe the condemnation judgment offered him no assurance that s he 'would receive just coinpensation for the land taken and appropriated by the county for public use. The judgment amply protected him by giving him one year after taking his land to file his claim for damages. The statute under which it was taken provides that his damages may be paid out of the general reVenue Of the eminty or out of the road and bridge fund. Proof that these funds had been exhausted for the :fiscal year of 1934 woUld and could not prevent him. froth ultithately collecting his damageS • out of these . or other available funds; He was given Until 'June 7, 1935, to file his claim, and it follows that he would have sUch further tithe as nei,es.'ry o litigato nnel otnhlish 1t Fen ; an& ;that appears in this reCord, lie has not filed a claim, mUch less established it. Until these two things are'done, it is not necesSary for the county, in arranging its' budget, to in-chide therein his unestablished claim. • It may be that his betterments equaled or exceeded his damages. In other wOrds, he May . not recover a judgment for any sUbstantial amount. - It would have been impossible at the time the land . Was taken' or ' judgment rendered fOr the court to determine the amount of damages, and set aside any particular .sum and segregate . it. from either fund to pay his damages. In taking tbe right-of-way, the county pledged its good faith .and credit to pay appellant .for it, .but not necessarily out of the yevenues collected in the fiscal -year of 1934. It will be time enough for the county to include in its budget the amount: of damages when, and if, appellant recovers a judgment. There is no way for the county to escape paying such judgment as appellant-may recover if he files and prose-
ARk.] 255 cutes his . claim, as article 2, § 22, of our Constitution reads as folloWs : " The right of property is before and higher than•any constitutional sanction, and- private prop, erty 'shall not be taken, appropriated -or. damaged for Public- use without just compensatibn therefor." •No error appearing, -the -judgment is affirmed: SMITH, J., dissents ; MEHAFFY and BAkER, JJ., abSent and .pot participating.
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.