1116 JOHNSON V. WASHINGTON COUNTY. [179 JOHNSON V. WASHINGTON COUNTY. Opinion delivered September 30, 1929. 1. TRIAL—JURY QUESTION.—In an action to recover damages to land owned by plaintiff's grantor at the time it was taken for a public road, where the evidence ag to whether the claim of damages was
MIK.] JOHNSON V. WASHINGTON 'COUNTY. 1117 • assigned subsequent to the delivery of the deed to plaintiff, if such question was material and . the evidence conflicting, it should have been submitted to. the jury. 2. ASSIGNMENTS-CLAIM OF DAMAGES FOR , LAND TAKEN.-A claim for damages to land iby reasdn of laying out a public 'road across the land was assignable under Crawford & Moses' Dig., § 6303„ 3. EMINENT DOMAIN-RIGHT OF ASSIGNEE TO RECOVER DAMAGES.- Where the owner . of * land taken for a public highway conveyed the land and assigned his claim for damages to the grantee, the .latter could recover . such damages, ' under Crawford & - Moses' ..Dig., § 5249.. Appeal from "Washington, Circuit. Court; , S. Maples, Judge.;.reversed...,_.. . : • . B. J., Wilson, John Mayes and Karl Greenhaw,, for appellant. SMITH; J. This appeal iS from a judgment of the circuit court, denying appellant!s 'claim for damages to a tract of land 'which was owned by a man named Davis at the time an order of condemnation was made laying out a public road actoss the land. • Davis delivered to aPpellant a deed to the land and an assignnient in ; writing 'of the claim for damages, and both instruinents Were filed for , record on the same day and within less than one year of the date of the order of condemnation by the . county court. The claim was dis-- al,lowed by the 'county court, and by the circuit court , on the appeal. to that caurt, and the judgment of the circuit catirt appearijo have 'been 'based' upon the' finding Of fact, recited in the judgment, that 'appellant "purchased the -land after having 'full knowledge that the county' court had made . the change in said toad, and his assignment of the alleged canSe of detion was made some months after the title had pasSed from his grantor." . . If it were material to determine whether the assignment of the claim for damages '1141 been made at a date subsequent to the deliyery of the deed, this question of fact should have been . submitted to the jury,las the testimony was conflicting on this question. The circuit court, however, withdrew the case fram the jury and made this
1118 JOHNSON V. WASHINGTON 'COUNTY. [179 finding of fact, which was error, for the reason that the question is one for the jury.. - The testimony an the part of the appellant was to the effect that, he refUsed to accept the deed until the claim for damages had been assigned, and that there was a simultaneous delivery of these instruments, and that both were filed for record on the sante day. • flowever, we regard thiS qUestion of : fact as immaterial, for, if it be said that the deed did not oPerate to convey and assign the cause of action (which we da not decide);the cause. of action was asiknable (§ 6303, C. & M. Digest), and the assignment was' made within less than orie year of the date of the order of the county court condemning the land,'and the claim for damages based on the assignment was also filed with the county court for allowance . Within . less than a year. of that date.. The order of the eoimty- court appears to . have-been based ufmn the act•Constrifed ill-- the case . of Sloan v. Lawrence County, 134 Ark. 121,- 203 . S. W. 260, which appears as .§ 5249,..C., l■f: Digest. Under this section the .landowner whose land is •taken ,damaged . by the order af thecounty..court . has twelve months within which to- file a claim.: Appellant became , the.owner of- the land and of the cause of action for.its damage within twelve months of the. date of the order of the county court, and, as , it -is alleged, and appears . not -to be denied, that his predecessor in title- received . no:compensation, he is- entitled -to demand the cmnpensation to which his . grantor would have been entitled had•the land not .been sold. It therefore the right to sue for the damage to the land did not arise from- the acquisition of the title thereto under the deed, it was given by:the assignment of that cause of action, and, as the claim was filed within the time limited by the statute,. it should have been heard on its merits. , The - judgment will therefore' be reversed, and the cause reinanded,..with directions to 'assess such damages in appellant's favor as-the laW and the testimony require.
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.