Newton, Cir. Clk. v. American Security Company

Smith, J.

(dissenting). Rural lands in this state are usually described in conveyances thereof with reference to the.public surveys made by the Federal Government. But it is of daily occurrence, in every county in the state, for deeds to be executed in which the lands may not be thus sufficiently and accurately described. Lands may be divided and partition thereof made in a manner which would make descriptions by metes and bounds of the subdivided parts essential if the surveys of the divided parts may not be evidenced by a map of the survey dividing, or subdividing, the lands to which reference may be made. A forty-acre tract of land might be so divided that the subdivisions thereof would not be geometrical figures which could be accurately described by reference to the government survey.

If, therefore, lands may. be subdivided without reference to the government survey — and this is constantly done — it is essential that public records of surveys be made, to the end that the subdivided parts may be conveniently described without the employment of descriptions by metes and bounds, and may, without such descriptions, be assessed for purposes of taxation, so that an owner who pays his taxes on a part of the subdivision may have the assurance that his title will not be clouded by the failure of the owner of another part of the subdivision to pay his taxes.

The statute, therefore, provides that “It is made the duty of the recorder of every county to provide and keep in his office a record book to be entitled, 'Record of Surveyor’s Plats and Notes,’ in which he shall accurately record or make a fair copy and transcript of every plat and the notes accompanying the same returned by him.to the county surveyor, as in this act is provided.” Section 1369:7, Pope’s Digest.

Section 13698, Pope’s Digest, provides that “When a plat and notes accompanying the same of any section or part of section of land- shall have been made, returned and recorded, as herein provided, a designation by number of a lot therein, either upon the assessment list, the tax book, the delinquent list, or in any tax receipt, certificates of sale, tax deed, or in any other deed or writing, shall be held and considered to refer to and as being intended to designate the subdivision of such section or part of section as is of the same number on such plat and the notes accompanying.”

In making partition of lands under the orders of the courts, the commissioners making partition, pursuant to these orders, are required to allot the several portions and shares thereof to the respective parties, quality and quantity relatively being considered by them according to the respective rights and interests of the parties, designating the several shares and portions by metes and bounds, and may, when necessary, employ a surveyor to assist them in the discharge of that duty. Section 10524, Pope’s Digest. The practice is usual, and should be followed in all cases, of having a survey of the partition made and a plat thereof placed of record, to the end that the several portions may be separately assessed, and thereafter separately conveyed. This is usually done by giving the several portions numbers, as, for instance, lots numbered 1, 2, 3, etc., of the survey of the section, half-section, quarter-section, or forty-acre tract, or other land that may be divided. For ■instance, a quarter-section might be divided into three irregular and unequal portions as to area. A survey thereof, placed of record, would identify each portion, if it were given a separate number as a lot, and it could thereafter be assessed or conveyed by that number. It would be difficult, and usually impracticable, to assess the portions of a subdivided tract of land by metes and bounds, and there should be and is a convenient method of describing them without employing metes and bounds descriptions. This necessity is met by the provisions of ■§§ 13697 and 13698, Pope’s Digest, copied above.

In the case of St. Louis-San Francisco Ry. Co. v. Sub-District No. 1 of Drainage Dist. No. 11, 179 Ark. 567 , 17 S. W. 2d 299 , there was involved the sufficiency of the description of property which had been sold for the nonpayment of drainage district taxes, the lands being described with reference to the surveys. It was there said: “This assignment of error might be disposed of by saying that the motion for a new trial does not call to our attention any particular description which is said to be fatally defective, but of the descriptions discussed it may be said a number referred to private surveys. So far as the record before us shows to the contrary, these descriptions may be good and sufficient. The statute provides for the survey of lands not in cities or towns into subdivisions so that the descriptions employed in the government surveys may hot always be essential. Provision is made in § 9932, O. & M. Digest (§ 13697, Pope’s Digest), for a record book, to be entitled ■‘Record of Surveyors’ Plats and Notes,’ and by § 9933, ■C. & M. Digest (§ 13698, Pope’s Digest), it is provided that assessments may be made with reference to these surveys. See, also, § 9928, O. & M. Digest (§ 13695, Pope’s Digest).” See, also, Holt v. Reagan, post, p. 1101, 148 S. W. 2d 155 .

Now, this is what appellee is attempting to do, and is all that it asks to be done. Appellee owns a tract of land containing 120 acres, which it wishes to divide into 24 separate tracts. Their assessment for taxation would be difficult and impractical if these 24 tracts may not be surveyed and a plat thereof placed of record, in which each tract might be separately numbered. Thereafter each of the 24 tracts could be separately assessed or conveyed by the number given each subdivision respectively in the survey and map. Appellee is asking the enforcement of a right, of which it may not be justly deprived, when it seeks to preserve and make a matter of record the subdivision of its property.

Appellee’s property, according to the facts stated in the majority opinion, has a frontage on the Base Line road of a half-mile and an equal frontage on the Geyer Springs road.. As a condition upon which it may divide its lands into lots, it is required to abandon for its own purposes a strip 10 feet wide, extending for a distance of one mile. Appellee is- not asking any change in the roads, and is not asking that any roads be opened. The roads have been used as such for'fifty years. It is asked to concede to public use a strip.of its land 10 feet wide and a mile in length. It is not proposed to widen other portions of either road to this extent or to .any extent, and it will hardly be contended that any other owner could be required to donate this, or any other quantity of land without compensation.

It is said in the case of Young v. Gurdon, 169 Ark. 399 , 275 S. W. 890 , (to quote a headnote), that “The sovereign power of the state to condemn and take for public use involves the correlative right of the individual to just compensation for the property which he has been compelled to surrender for the public welfare.”

We quote from the body of the opinion in said Young v. Gurdon case as follows: “As Chief Justice Cockrill, speaking for the court in Railway Company v. Petty, 57 Ark. 359 , 21 S. W. 884 , 20 A. L. R. 434, says: ‘When once the character of the use is found to be public, the court’s inquiry ends, and the legislative policy is left supreme.’ ‘When once the legislature, or the governmental agency to whom it has delegated the power, has-determined to exercise that right in the manner prescribed by the law-making body, it is then the exclusive province and duty of the judiciary, when the character of the proposed 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 purely judicial here and not a legislative question. ’ Hoxie v. Gibson, 155 Ark. 338 , 245 S. W. 332 . See, also, North Laramie Land Co. v. Hoffman, 268 U. S. 276 , 45 S. Ct. 491 , 69 L. Ed. 953 .”

Appellee has the choice of two alternatives in view of the' action of the City and County Planning Boards. It may forego the advantages enumerated above of having the map and plat of the survey recorded, or it may donate its land without other compensation. The majority say there is no evidence that the City or County Planning ¡Board acted arbitrarily. The facts herein stated appear in the record, and are recited in the majority opinion. In addition, the majority opinion quotes from the agreed statement of facts upon which the case was heard in the court below as follows: “ ‘That petitioner prior to submitting said plat to either the City or County Planning Commission had executed its bill of assurance providing that no building should be erected nearer than fifty feet from the front of the tracts in said subdivision which front was shown to extend to the edge of said forty-foot roads; that a building had been erected pursuant to said building line and that to dedicate an additional ten feet would 'cause a violation of said building restrictions unless an amendment were filed to said bill of assurance, which amendment it would be impracticable or impossible to obtain because of the necessity of non-residents interested in the property to execute same; that it would be expensive for petitioner to move its said house which is on a stone foundation.’ ”

There is involved here no such zoning ordinance as was construed in the case of City of Little Rock v. Sun Building & Developing Co., 199 Ark. 333 , 134 S. W. 2d 582 , from which the majority quote. Appellee’s property is not in Little Rock, or in any other city. The stipulation is that it is five miles from Little Rock, the nearest town or city.

The majority say: “Of coarse, one’s property cannot be taken for public use without compensation, but the evidence in this ease clearly shows that no one is attempting to take the property of appellee.’’ The agreed statement and stipulation of counsel recites that appellee is required to grant for road purposes a strip of its land ten feet wide and a mile in length, for which it is to receive no compensation,- unless, indeed, the right to subdivide its land for sale may be called compensation. But it had that right whether the City or County Planning Board granted it or not. It will not be given something that it does not already have. It is merely allowed to exercise a right of which the Planning Boards are without authority to deprive it.

It appears to me that the Planning Boards have, not only acted without authority, but that they have exercised arbitrarily any authority they may have. The answer to the question, “What results will follow if the Planning Boards’ orders are enforced?” demonstrates this to be true. Neither of the roads on which appellee’s property fronts will be made sixty feet wide at any point. So much of the roads as front appellee’s property will be widened to the extent of the ten feet on appellee’s side of the road, so that this segment of the road will be fifty feet wide. At all other points the roads will remain forty feet wide.

In my opinion, the judgment of the court below, ordering the clerk to place the map of the survey of appellee’s property of record, should be affirmed, and I, therefore, dissent.