It clearly appears that appellee, James Littrell, is the moving petitioner in the establishment of this road. He first filed a petition for a private road, which was granted; but he refused to pay the damages awarded appellants, and he then proceeded to have a public road established. That order was made, and from that order comes this appeal. The damages were again assessed against petitioners, of which action the majority opinion says petitioners make no complaint.
But can we say petitioners will not complain when an attempt is made to enforce payment of the judgment? The statute (6953, Pope's Digest) provides that the county court, on receiving the report of the viewers, shall, if satisfied that the road, or any part thereof, will be of sufficient importance to the public to cause the assessed damages to be paid by the county, order the same to be paid to the person or persons entitled thereto from the county treasury, and thenceforth the road shall be considered a public road; but if the court finds that the proposed road is not of sufficient public utility for the county to pay the compensation, and petitioners refuse to pay the damages, then the road shall not be declared a public highway.
Appellants' lands have been condemned for a public road, but no order was made to pay the damages out of the county treasury, as the law requires, the damages being assessed against the petitioners. The landowners have a judgment, which the petitioners may or may not be able to pay, or which the petitioners may or may not be willing to pay, but in any event a judgment has been rendered which was unauthorized by law. Section 6953, Pope's Digest, clearly provides that if the court finds that the proposed road is of sufficient importance to the public to cause the damages assessed by the viewers to be paid by the county, the court, in declaring the road a public road, must order the damages paid out of the county treasury. On the other hand, if the court finds that the road is not of sufficient utility for the county to pay the damages, and petitioners refuse to pay them, *Page 392 the road shall not be declared a public highway. Here, it is not contended that petitioners have paid the damages or offered to do so, yet the road has been declared a public highway.
Based upon the case of Draper v. Mackey, 35 Ark. 497, the digester has this note to 6953, Pope's Digest: "The owner of land through which a public road has been laid out has no right to obstruct it, though no compensation has been made to him. He should have resisted the application for it in the county court, or resorted to proper means to have it vacated."
Here, the landowner did resist the application, both in the county court and in the circuit court on appeal, and he has, in my opinion, by his appeal to this court, taken the proper action to have this order vacated.
Appellees say, as the majority opinion recites, that the county court did render judgment against the county, and that the landowners may have the judgment from which is this appeal corrected, by a nunc pro tunc order, to show that fact. This may or may not be true. The landowners may or may not be able to obtain the entry of that judgment nunc pro tunc. But in any event we should try this case upon the record before us, and not upon a supposititious record which may or may not be made. Petitioners are not asking the establishment of a private road, for which the law provides. Littrell had that order, but did not avail himself of it by paying the damages. Apparently, he wanted a road without any one paying damages. The county court did not order the damages paid out of the county treasury, and the record before us does not show that the circuit court, on the appeal, made any such order, and it is not contended that either court made an order for the establishment of the road conditional upon the payment of the damages. The road has been established, and a judgment rendered for the damages, which may or may not be paid.
I do not understand that the law contemplates this procedure and that lands may be taken in this manner, and I, therefore, dissent, and am authorized to say that Justice HUMPHREYS concurs in the views here expressed. *Page 393