The act creating the highway district in question provides that it is formed for the purpose of improving certain public roads, which are described as running from one town to another, or from *Page 66 one town through other towns, to the place where the roads end. This indicates that it was the intention of the Legislature to improve the existing public roads.
Another section of the act provides that it is the duty of the commissioners to improve the roads herein described by grading, draining, and surfacing them with such material as the plans for the district may designate, and by straightening and widening them.
Another section of the act provides that, if the 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 approves the same, this will constitute a laying out by the county court of the road as changed. When the act is read from its four corners, I do not think that it contemplates radical or material changes in the public roads to be improved. I am of the opinion that it was the intention of the Legislature to give the commissioners the authority to improve public roads already laid out, and that it only contemplates making immaterial changes in them or straightening or widening them. Rayder v. Warrick, 133 Ark. 491; Hout v. Harvey, 135 Ark. 102; Pritchett v. Road Imp. Dist., 142 Ark. 509; and Nunes v. Coyle, 148 Ark. 365.
Now the testimony in this case shows that, in making the preliminary survey on the road from Hardy to Williford, the engineer made a material change. The road from Hardy to Williford is on the north side of Spring River, and the engineer made a survey on the south side of Spring River, where there was no public road.
The act gave the commissioners the authority to employ engineers to make a preliminary survey of the roads to be improved, but it gave them no authority, in my judgment, to lay out new roads on wholly or materially different routes. Therefore the engineer could not charge the district with the costs of making the preliminary survey on the south side of Spring River from Hardy to Williford, or in other parts of the road where the change was material. *Page 67
It is conceded that the engineer was only entitled to recover on a quantum meruit basis. While preliminary work must be done and its costs must be met by the landowners, no allowance can be made for a preliminary survey which was unauthorized by the act creating the road district. I do not think, however, that, because the engineer, in making the preliminary survey, exceeded the authority given the commissioners by the act, this should prevent him from recovering for work which he was authorized to do. The preliminary survey is work undertaken by the district to determine whether it is feasible to make the improvement contemplated, and is therefore a necessary incident to the organization of the district. It seems to me that, if the engineer is entitled to recover on a quantum meruit basis, the fact that he did work for which he is not entitled to receive pay ought not, in the absence of bad faith, to prevent him from recovering for work which was necessary to be done to determine whether the improvement could be made or not.
As we have already seen, the preliminary survey is work undertaken by the district in order to determine whether or not the proposed improvement can be made under the terms of the act, and its cost is an incident of the organization of the district, and should be borne by a tax on the lands therein. Thibault v. McHaney, 119 Ark. 188, and Houck v. Little River Drainage Dist., 239 U.S. 254.
Section 6 of the act in question gives the commissioners the express power to employ an engineer, to be approved by the State Highway Department, to assist them in the preparation of plans for the improved roads. The engineer is entitled to a reasonable compensation for this survey, and the fact that the commissioners, by mistake, exceeded their powers in making the preliminary survey, ought not to prevent him from recovering a reasonable compensation for services which the commissioners had the authority to employ him to render under the terms of the act. *Page 68
I do not think that the case of Kern v. Booneville Sanatorium Highway Dist., 154 Ark. 107, is controlling under the facts of this case. There this court said that the chancery court was justified in holding that the engineer knew, before he proceeded far with his work, that the road could not be constructed within the limits of the cost provided in the act, and that, under the circumstances, he acted in bad faith in making a preliminary survey. I do not think that the facts in the case before us warrant any such finding.
The State of Missouri had laid out and improved the highway from Kansas City to a point on the Missouri line near Mammoth Spring. It was intended to make the proposed road in the present case a link or continuation of that highway. Under the act, the commissioners and the engineer, in good faith, thought that they had a right to make material changes in the route of the proposed highway so as to make the plans conform to the requirements of the engineers of the United States Government, in order that they might receive Federal aid. In my judgment the act does not give them the power to make material changes in the existing highway, and, for that reason, the commissioners and the engineer exceeded their authority when they did so. I think that they acted in good faith, however, in the matter, and for this reason the engineer had a right to recover reasonable compensation for making the preliminary survey where no material changes were made in the route.
In determining whether the changes were material or not, within the intention of the Legislature, it is proper to consider the topography of the ground; the fact that a change was being attempted from a system of dirt roads to that of hard surface roads; that motor vehicles have become the chief means of travel, and other surrounding circumstances conducive to the safety of traveling and the proper drainage of the road. This made it necessary to straighten and widen the existing road in order to obtain the most practical route. As above stated, I do not think however, the Legislature meant to *Page 69 give the commissioners the power to recommend radical or material changes in the route.
The profiles referred to by the engineer in his testimony are not in the record. Both parties, in my judgment, tried the case on the wrong theory. Inasmuch as, in my judgment, it is very difficult to separate the legal and illegal items, I think it would be better to reverse the decree and remand the cause, with directions to allow either party, if so advised, to take additional testimony to show what would be a reasonable fee or compensation to the engineer, within the meaning of our previous decisions on the subject. In short, I think that the engineer acted in good faith and should, under our previous decisions, be allowed to recover compensation upon a quantum meruit for the reasonable value of his services performed within the authority conferred by this act as interpreted in this opinion.