JAN. TERM, 1856. CRISE V. AUDITOR. That he was a citizen of White county, and resided ou the banks of Little Red river. That in the spring. of 1854, a swamp land levee was located by Milton Sanders, the agent appointed by the board of swamp land commissioners, to aid iu the location and construction of the necessary levee, &c., and in classifying and districting said swamp and overflowed lands, on the farm on which petitioner then resided, and still resides. Being dissatisfied with the location of said levee, he did, on the 5th day of April, 1854, give notice to the board of swamp land commissioners of his dissatisfaction with said location, and of his determination to claim such damages as the location of such levee might occasion him. That upon presentation of such notice, the said commissioners ordered that the sheriff of White , county be directed CRISE
to summon a jury to assess the dam-V.
ages arising to petitioner by reason of THE AUDITOR. the location of said levee on his farm, &c. (A certified copy of the order is S. C. 20-540. exhibited.) Crise presented his petition for a mandamus to That the sheriff of said county, on compel the auditor to issue his warrant in payment of the damages, assessed by a jury of inquest the 22d of August, 1854, summoned a under the swamp land act, in locating a levee upon jury of twelve freeholders, residents of his land, averring that the levee was placed under said county, in no wise akin to peti-contract and was in process of construction : The tioner, and in DO way interested in his auditor responded : 1st. That the inquest did not identify the lands. lands, to attend at his house to assess 2d. That he did not find sufficient evidence that the damages sustained by him by the levee has been or wid be constructed. reason of the said levee passing across 3d. That he has been unable to find in hie office his farm. That said jury, under the any evidence that the petitioner was the owner of any land in the county at the time : Held, That charge and direction of the said sheriff, the response was insufficient. *on the 23d of August, 1854, as- [*574 Appeal from Pulaski Circuit Court. sembled at the house of the petitioner and after being duly sworn by the said 5731 *I_10N. JOHN J. CLEN- sheriff, that they would faithfully and DENIN, Circuit Judge. impartially view the lands and fields of Watkins & Gallagher, for appellant. petitioner on which the leVee was Jordan, Attorney-General, contra. located, and assess the damages which said levee was calculated to occasion ENGLISH, C. J . At the June term said lands, and after viewing said of the Pulaski circuit court, 1855, Philip lands and fields, they rendered a verdict Crise presented a petition for manda-awarding to petitioner the sum of mus against the auditor, stating in 0558 ; which verd ict was entered substance, as follows : on the back of the inquisition, and
CAME V. AUDITOR. VOL. 17 'filed by the sheriff in the office of the sess the damages arising to the said clerk of the circuit court of White Philip Crise, by reason of the location county, in conformity with the act of of said levee on his farm, and that he 12th January, 1853. (A certified copy certify the same in the manner pre-is exhibited.) scribed by law to the next meeting of "That upon the taking and return of this board. said inquisition and assessment, said I hereby certify the above to be a levee was placed under contract by, or true and correct copy of the order under the authority of the board of mentioned, as the same appeared of swamp land commissioners, and bes record in this office. came and is in process of construction." W. E. Burrs, Secretary." That petitioner afterwards presented " STATE OF ARKA NSAS, the evidence of said inquisition and COUNTY OF WHITE. .1 verdict, being a copy thereof properly This is to certify that by order of the certified by the clerk of said circuit board of swamp laud commissioners court, to the board of swamp laud com-for the State of Arkansas hereunto an-missioners, at their meeting in October, nexed, and to me directed, I, Javob G. 1854, and they referred him to the au-Robins, sheriff of the county of White, Aiitor of the State as the proper officer in the State of Arkacsas aforeslid, did, to issue scrip for the same. That ac-on the 22d day of August, A. D. 1854, vordingly, in January, 1855, petitioner proceed in obedience to said c,rder to caused the said inquisition and verdict, summon a jury of twelve freeholders, properly certified as aforesaid, to be residents of said county of White, in presented to Alexander S. Huey, as no wise akin to said parties, or in any 'such auditor, and requested him to is-wise interested in the lands of said sue his warrant to petitioner for the Philip Crise, to attend at the house of amount of swamp land scrip due there-said Philip Crise, to assess the damages iu accordance with law, which he suatained by the said Philip Crise by refused to do. reason of a levee ordered by said board PRAYER FOR MANDAMUS. of commissioners, passing through the The exhibits made part of the peti-land of said Philip Crise. And I do tion, are as follows : further certify, that the said jury, to-"OFFICE OF THE BOARD OF SWAMP wit : J. S. Tillman, as foreman, Frank-LAND COMMISSIONERS. lin Deshough, John F. Black, G. R. Helena, Arkansas, April 5th, 1854. Buckley, Rial Wright, Andrew At a meeting of the board of swamp Jones, . Joel B. Baatwright, R. land commissioners for the State of Ar-Harris, John Griffin, T. H. Ruff; kansas, in April, A. D. 1854, the follow-Peter Tidwell and John Perry, ing order was made, to-wit : did assemble aud meet together Whereas, it has been repre-at the house of said Philip Crise and sented to the board by Philip upon the lands to be viewed, on the Crise, that the present route of the 23d day of August, 1853, and after be-levee, as located on Little Red river ing duly sworn that they would im-5751 5 by the engineer, runs through partially aud faithfully view the lands and on his farm, and that he is heavi-and fields of the said Philip Crise, on ly damaged thereby; therefore, at his whose lands the said levee is located, request, it is ordered by the board of and would impartially and faithfully swamp land commissioners, that the assess the damages which said levee is sheriff of White county be notified calculated to occasion said lands, did and required to summon a jury to as-assess the damages of the said Philip
JAN, TERM, 1856. CRISE V. AUDITOR. Crise, at the sum of fifteen hundred That, by reference to the assessment 5761 and fifty-eight dollars, *as will list filed in respondent's office for the appear by their verdict hereunto an-year 1854, for the county of White, nexed, all of which said proceedings he are is unable to find that said Philip Crise herewith returned, this the 23d has listed any land for taxation for that day of August, 1854. year. J.C. ROBBINS, Sheriff. By L. S. *And, believing he has shown P577 HOWARTON, Deputy Sheriff. sufficient cause, &c., &c., respondent " STATE OF ARKANSAS, prays to be discharged," &c. COUNTY OF WHITE. f The petitioner demurred to the re-We, the undersigned, the jury sum-sponse, the court overruled the de-moned by the sheriff of White county, murrer, and he rested thereon, and ap-to assess the damages caused by the lo-pealed from the judgment of the court, cation of a swamp land levee upon the discharging the auditor. land of Philip Crise, after having been The damages claimed by the peti-duly sworn faithfully and impartially tion were assessed to him under the to view the lands and fields, in which provisions of the 40th slid levee is located, and to assess the .section of the act of 12th January, 1853, damages, which said levee is calculated Pamphlet Acts 1852, p. 170, which is as follows : to occasion to said lands, do value and assess the damages due said Philip "All contractors for erecting levees Crise at $1558." shall have the right of way through (Signed by J. S. Tillman, foreman, the lands or fields, where the levees and the eleven other persons named are located by the commissioners ; and above in the sheriff's return.) the contractors shall give bond and The above exhibits are autheu ticated security, conditioned for the faithful by the certificate of the clerk •of the execution of the contract, and shall be circuit court of White county, as being liable to pay damages to the use of correct transcripts of the originals on the State, and also to auk citizen, who file in his office, &c. may be injured by non- performance On the filing of the petitiOn the cir-of the contract according to the con-cuit court ordered an alternative writ dition of the bond aforesaid ; but if of mandamus against the auditor, to the proprietor or proprietors of such which he made the following response, lands or fields should be dissatisfied in substance : with the location of such levees through " In response to said writ this re-his, her or their lands or fields, and spondent would most respectfully rep-shall on the location of such levees as resent, that the papers do not show aforesaid give to the commissioner no-what tract or tracts of land are said to tice of such dissatisfaction, and of be injured by the location of said levee, their determination to claim such consequently, the right of way could damages as the location of such levees not be vested in the State, even were may occasion, then, and in that case, she to pay the amount indicated in the said commissioners shall forthwith said account by the jury of inquisi-apply to the sheriff of the proper tion. county, who shall forthwith proceed Respondent would further represent to summon a jury of twelve freehold-that Ire does not find sufficient evi-ers of such county, in nowise akin to dence that said levee has been, or ever said parties, or in anywise interested will be erected ; or that the said peti-in said lands or fields through which tioner is the owner of any lands in said county. said levees may be designed to pass, which said jury shall assemble at the
ORME V. AUDITOR. VOL. 17 place intended to be viewed, and shall No doubt, the object of requiring the take an oath, to be administered by inquest to be returned to the clerk's the sheriff, that they will faithfully office was, that there might be pre-and impa:rtially view the lands or fields served some public memorial of the of such person on whose lands such right of way acquired by the State in levee may be located, and will faith-the premises ; and it is manifest that fully and impartially assess the dama-a compliance with the spirit and in-ges, which such levee is calculated to tention of the law would require a occasion such lands; and the said ver-reasonably certain identification of the dict shall be entered upon the back of lands upon the face of the proceedings. the inquisition, and shall, by such But the statute does not expressly re-sheriff; be filed in the office of the quire the lands to be described, and clerk of the circuit court of the proper the inquest in this case coming before county, and the inquisition and verdict the court collaterally, it is not war-returned shall be an effectual bar to both ranted in holding the proceeding to be 5781 parties without *appeal ; and if null and void for want of such identi-such jury should find damages for such fication of the lands. owner or proprietor, then, aud in that The second objection made by the case, such owner shall have a credit response of the auditor is, that he does for so much, which when properly cer-not find sufficient evidence that said tified by the clerk of the proper court, levee has been, or ever will be erected. shall be sufficient authority to the *The petition avers that the r579 proper officer to issue scrip for the levee was placed under contract and same, and when so issued, the same was in process of construction, &c. See shall be taken and received in pay-Crise Ex parte, 16 Ark. 193. ment of any of the swamp 'and over-This allegation is not denied by the flowed lands in this State." response, nor is it confessed and avoid-This section of the act was perhaps ed. The rules of pleading required one passed iu consequence of the decision or the other. ot this court in Martin et al., Ex parte, The third objection is, that the re-13 Ark. B. 199, where it was held that spondent bad been unable to find in the board of swamp land commis-his. office any evidence that the peti-sioners could not construct the public tioner was the owner of any land in levees und drains upon the lands of White county in the year 1854. private individuals, to their detriment, It appears from the face of the re-unless the State would provide for quest that Crise was the owner of the such damages as might be occasioned lands and fields upon which the dam-them thereby. &c. ages were assessed. The inquest of damages in the case We must presume that the board of now before us seems to have been taken swamp land commissioners, sheriff and literally in conformity with the pro-jury, ascertained this fact, as it is stat-visions of the statute. ed in their proceedings. It was hardly The first objection to the validity of necessary for his title to be set out in the inquest, taken by the response of the request. the auditor, is, that the proceedings From some omission his lands may do not identify the particular lands of not have been assessed in the year the petitioner which were damaged bY 1854, or may have been listed for taxa-the location of the levee, and upon tion in some other name. But be this which the State is to obtain the right of way by paying the damages assessed by as it may, this objection of the audi-the jury. tor presents no relevant issue to be de-
JAN. TERM, 1856. termined by the court, or jury. The auditor does not allege that Crise was not in fact the owner or proprietor of any lands upon which the levee was located; and that the request was a mere fraud gotten up by him to speculate upon the State; but the response stated merely that the auditor finds no evidence in his office that Crise was the owner of such lands, &c. We even think the response is insufficient, and that the court erred in overruling the demurrer thereto. The judgment is reversed, and the cause remanded for further proceedings, &c. Cited:-19-28. NOTE.—On mandamus, see note 4, Goings v. Mills, 1-16.
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.