(dissenting). Denniston did not attempt to make a conveyance of any portion of the property embraced within the right of way of Highway 71. After setting out the description in the deed of the land convoyed, there is this provision: “Except from this conveyance that part of the property taken by the right of way Highway No. 71, United States Highway No. 71.”
Appellee Dean has never owned any part of the property in the right of way of Highway 71 and in these circumstances I cannot see how he is entitled to be paid for something that he does not own and has never owned.
In addition to what has been said, I think the evidence is overwhelming to the effect that Denniston, Dean’s predecessor in title, had notice of the taking of the small strip of his land for highway purposes.
On August 10, 1927, the Crawford County Court made an order condemning for the construction of Highway 71, a right of way extending 35 feet on the west side of the centerline of an existing road from Fine Springs, South to Alma, Arkansas. At that time Denniston owned one acre of unimproved land adjacent to the road and the new right of way would take about 18 feet off the east side of the Denniston acre.
The condemnation was made by the County Court and the statutes allow the owner 12 months in which to make a claim for compensation. The order of condemnation and the taking of the property is sufficient notice to the owner even though he may have received no other notice. The twelve month period in which he can make his claim begins to run from the time of the taking. Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260, Arkansas State Highway Commission v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283.
Only a few months after the order for the taking in 1927 a new road was built. The evidence is convincing that the right of way across the Denniston acre was taken at that time. Some of the plans and specifications for the road built in 1927 were introduced in evidence. These plans show clearly that there was a fence across the front of the Denniston property. The plans call for moving it back a distance of 5 feet, which would make it 35 feet from the centerline of the highway. The records of the Highway Department introduced in evidence, show a contract was made for moving the fence, and payment was made for moving it. The plans and specifications call for the cutting of a ditch at a distance of from 29 to 35 feet from the centerline of the highway, which would place it on property involved in this litigation. Dean has filled in the ditch across the acre involved since he purchased it, but claims that it was only about 17 feet from the centerline. The ditches on property both to the North and South of the acre involved were from 29 to 35 feet West of the centerline. The road built in 1927 was a Federal Aid Project, and according to government requirements the ditches had to be from 29 to 35 feet from the centerline. There is no reason why any exceptions would be made to the Denniston acre, because it was unimproved at the time.
All the circumstances indicate that Denniston was fully aware that the right of way was being extended to a distance of 35 feet from the centerline. In my opinion, there is no substantial evidence to the contrary.
For the reasons set out herein, I respectfully dissent.