Appellant was not entitled to recover for preliminary work at any place other than on the road as created by the act. 59 Ark. 344; 31 Ark. 720; 163 Ark. 269. The commissioners did not have authority to authorize the survey for construction of new roads. 89 Ark. 513;118 Ark. 119; 148 Ark. 365. See also 142 Ark. 509;133 Ark. 491. North Arkansas Highway Improvement District No. 3 is composed of territory embraced in the counties of Sharp, Lawrence, Izard and Fulton, and was created by act No. 32 (unpublished), approved February 3, 1920, of an extraordinary session of the General Assembly. The statute is in the usual form, creating the district, providing for commissioners in each county, to be appointed by the respective county courts, and conferring authority to improve the road mentioned, to borrow money, assess benefits and levy taxes. Power is also conferred to employ engineers and other agents to carry on the work. Section 2 of the statute describes the route of the public road to be improved as one beginning near Mammoth Spring, in Fulton County, "at a point to be selected by the commissioners," thence in a general southeasterly direction to the towns of Hardy and Williford, in Sharp County, and thence to the town of Ravenden, in Lawrence County; also beginning at or near Mount Olive, on White River, at a point to be selected by the commissioners, thence northeasterly through the towns of Melbourne, La Crosse, Violet Hill, Franklin and Myron, in Izard County, and through Ash Flat, in Sharp County, to the town of Hardy, intersecting the Mammoth Spring road at Hardy; also a lateral beginning at a point on the Mammoth Spring road near Mammoth Spring and thence east to the town or village of *Page 60 Wirth; also beginning at the village of Hill Top, and thence southwesterly to Williford and Sitka, and thence to Poughkeepsie, in Sharp County, this being a lateral intersecting the Mammoth Spring road at Williford. These roads are treated as a single improvement, and they connect up with each other so as to be treated as such.
Section 3 of the statute makes it the duty of the commissioners to "improve roads herein described by grading, drainage and surfacing them, or part thereof, in such manner and with such material as the plans of the district may designate, and by straightening and widening them, and to construct bridges and culverts as needed on said road, according to the plans that may be approved by the county courts of the respective counties in which said road or parts thereof is situated."
Section 7 provides for the filing of the plans of the proposed improvement with the respective county courts, together with an estimate of the cost of the work to be done in each county.
Section 10 provides that "if said plans contemplate that the line of any public road to be improved shall be straightened or changed and the county court of the county in which the changed part is situated approve the same, this shall constitute a laying out by the county court of the said road as changed." The section further provides that, if additional lands are taken in laying out and constructing the new road caused by the change of route, damages shall be paid, and provision for notice to the affected landowners is made.
The commissioners of the district were duly appointed by the respective county courts, and, after effecting an organization, they entered into a contract with appellant to do the engineering work, both preliminary and permanent, and, pursuant to this contract, appellant started a preliminary survey, which was practically completed, though the work was stopped before the plans were made out. During the progress of the work of making the preliminary survey much opposition was *Page 61 developed, and it was determined by the commissioners that it would be impracticable to construct the road, so the scheme was abandoned, and appellant instituted this action against the district in the chancery court of Sharp County to recover on the quantum meruit for services performed in making the preliminary survey. He alleged in his complaint that, in making the survey, he incurred an actual expense of $6,343.09, and that $3,600 would be a reasonable compensation for his own services. The district answered, denying that the services performed by appellant were of any value to the district, and alleging that the survey made was along a route not specified and authorized by the statute. There was a trial before the chancery court, which resulted in a decree dismissing appellant's complaint for want of equity.
There is a conflict in the testimony, which it becomes necessary to reconcile, and in doing so it is our duty to leave the findings of the chancellor undisturbed unless discovered to be against the preponderance of the evidence.
It appears from the testimony that the public road described in the statute begins at the town of Mammoth Spring, on the west or south side of Spring River, and runs down the river for about a mile and a half or two miles, and then crosses the river by a concrete bridge, thence approximately following the line of the St. Louis-San Francisco Railway Company down the east or north side of Spring River to the town of Hardy, and thence, partly on that side of the river, to the town of Williford and on to the town of Ravenden, in Lawrence County. It is also conceded that appellant, in surveying for the construction of the improvement, changed the route so as to cross Spring River near Mammoth Spring, instead of following the line of the old road down on the south or west side, and that, from Hardy to Williford, he crossed back to the south or west side of the road, instead of following the old line on the north or east side to Williford. The road from Hardy, on Spring River, over to Mount Olive, on White River, runs through the towns mentioned *Page 62 in the statute, and the evidence shows that the line surveyed by appellant also ran through those towns, but it is conceded that the survey did not follow the old road, and, on the contrary, that it frequently departed from the old route for the purpose of straightening the line and lessening the distance. There is, as before stated, a conflict in the testimony as to the extent of these changes. The same can be said with respect to the line of road beginning at Hill Top and intersecting the Mammoth Spring road at Williford and running southwestern down to Poughkeepsie. The survey made by appellant followed the route with respect to the termini and the intervening points mentioned in the statute, but the line was frequently changed by the new survey, and did not follow the old route.
The conflict in the views held by the judges of this court, both with respect to the facts and the law of the case, is such that it becomes necessary to determine the net result of these views. It is the opinion of Justices WOOD and HART that the statute creating the district does not authorize the commissioners to make any changes in the road other than those that are deemed immaterial. Justices SMITH and HUMPHREYS and the writer are of the opinion that the power of the commissioners is not thus limited by the statute, but that, on the contrary, the board of commissioners may, with the approving action of the county court, make material changes in the route, if those changes are not such as to constitute an entire departure from the improvement contemplated by the statute. They are of the opinion, further, that an engineer performing, in good faith, services in making a preliminary survey and plans authorized by the statute, is entitled to compensation, even though that survey may never be approved by the county court. It is necessary for the survey to be made in order for the county court to determine whether or not the route thus surveyed will be approved, and, if the services are performed in good faith, the fact that the time for approval by the county court is never reached, or, if the county court should, for good *Page 63 cause, not approve the change in the route, the engineer nevertheless is entitled to his compensation. The test is whether or not the services were performed in good faith and are reasonably calculated to be of resulting benefit in the event of the construction of the improvement.
These views of the majority, of course, constitute, to that extent, the law of the case. There is, however, a further difference in the views of those just referred to as the majority, in that Mr. Justice SMITH is of the opinion that, according to the facts of this case, in making the. Survey there was a complete departure from the scheme of improvement authorized by the statute, and the views of Mr. Justice HUMPHREYS and the writer are to the contrary. They (the writer and Mr. Justice HUMPHREYS are of the opinion that, since the survey ran between each of the stated termini and through the towns and villages mentioned in the statute, the scheme was not departed from even though material changes were made.
It will be observed from the language of the statute that the lawmakers intended to authorize material changes, for the reason that the approval of the county court is required. This court has decided that immaterial changes may be made without the authority of the county court (Wimberly v. Road Imp. Dist., 161 Ark. 79), and, if only immaterial changes had been contemplated by the lawmakers, it is not reasonable to suppose that they would have required the approval of the county court. It will be observed that 3 of the statute uses the words "straightening and widening" in referring to the roads to be improved, but 10, in referring to the approval of the county court, uses the word "straightened or changed," and provides that, where additional lands are taken "in laying out and constructing the new road caused by the change of route," damages shall be paid, etc. Now, all of this shows clearly to our minds that the lawmakers contemplated the making of material changes, and the only limitation placed upon the power was that it should be subject to the approval of the county court, *Page 64 for this was a recognition of the county court's jurisdiction in laying out or changing public roads. What the Legislature contemplated, in the opinion of Mr. Justice HUMPHREYS and the writer, was that the route of the road to be constructed, whether according to the line of the old road or by a changed route made by the commissioners, should be designated by the respective termini and the intervening points, and that a route surveyed between those points, even though there was a material departure from the line of the old road, fell within the authority of the statute.
Justices WOOD and SMITH have reached the conclusion, from a consideration of the facts of the case, that the whole line surveyed by appellant constituted such a complete departure from the route indicated in the statute that it was, in effect, a wholly different project, and was unauthorized, and that appellant is not entitled to any compensation for his services in making the survey. They are of the opinion that the facts of the case bring it within the decision of this court in the case of Kern v. Booneville and Sanatorium Highway Dist., 154 Ark. 107 Their conclusion is, on the whole case, that the decree of the chancery court should be affirmed. Mr. Justice HUMPHREYS and the writer are of the opinion that the testimony in the case shows that, under then view of the law as expressed above and of the facts as they find them to be, the survey made by appellant was done in good faith and within the authority conferred by the statute, even though there were material changed in the route, and that the case of Kern v. Booneville Sanatorium Highway District, supra, does not apply, and that appellant is entitled to compensation for all of his services.
There seems to be no serious conflict in the testimony as to the expenses incurred by appellant in making the survey, or the amount of compensation to which he is entitled. We (Mr. Justice HUMPHREYS and myself) would reverse the case, with directions to enter a decree in favor of appellant. The views of Mr. Justice HART traverse middle grounds between the extreme views, on *Page 65 the facts, of Justices WOOD and SMITH on the one side and Mr. Justice HUMPHREYS and the writer on the other. He (Mr. Justice HART) is of the opinion that appellant is not entitled to compensation for services rendered in making material changes in the route of the road. He thinks that the survey was made in good faith, and that the cases of Kern v. Booneville Sanatorium Highway District, supra, does not apply, but that, in so far as material changes were made, it was not authorized by the statute, and for that reason there should be no compensation. He is of the opinion, however, that the survey of parts of the road made only immaterial changes so as to widen or straighten the road, and that, since the survey was made in good faith, appellant is entitled to recover for those services on the quantum meruit. Those conclusions of fact reached by Mr. Justice HART, since they occupy middle ground between the other extreme views, necessarily control the decision of this case. There was not such a separation, however, in the testimony adduced below to afford means for determining what amount of compensation appellant is entitled to under the rule resulting from our conflicting views. There being such a conflict in the views of the justices as to the facts of the case, we deem it unnecessary to state them here in detail. There are separate opinions stating in their own language the views of the respective justices, and, since the opinion of Mr. Justice HART will be controlling, it will serve as a guide to the trial court in the further proceedings.
The decree is therefore reversed, and the cause remanded, with directions to the chancery court to hear further testimony, if offered by either party, and to determine therefrom the amount of compensation to which appellant may be found to be entitled on the quantum merit it basis, for surveying such parts of the route where the changes from the old route were not material.