#### Hill v. McClintock.

Opinion delivered January 16, 1928.

*1062 H. W. Applegate, Attorney General, Hal Norwood, Assistant, Robinson, House Jh Moses and John D. '$ Cooper Thweatt, for appellant.

Emmet Vaughom and J. F. Holtzendorff, for appellee.

Hart, C. J.,

(after stating the facts). In proceedings of this sort a citizen and taxpayer has a right to he made a party to the proceedings in the county court 'and to appeal from an adverse ruling of the county court relative to the vacation, alteration or establishment of roads. Johnson v. West, 89 Ark. 604, 117 S. W. 770; and McMahan v. Ruble, 136 Ark. 83, 204 S. W. 746, and cases cited.

But it is insisted that Hill had no such right, because he signed the original petition for the vacation of the road. The record shows that, before the original petition was acted upon, Hill and other persons who had signed the original petition asked that their names be withdrawn, before the court took any action on the petition. The withdrawal of the name of Hill and the names of the other persons did not affect the jurisdiction of the court, because there was still left upon the petition more than ten names, as required by the statutes. Under these circumstances it has been generally held that names may be withdrawn at any time before the tribunal in which the petition is filed in some way acts or determines the sufficiency of the petition. Elliott on Roads and Streets, '4 Ed., vol., 1, paragraph 374. Numerous cases from the courts of last resort of several States are cited in support of the doctrine.

There is no analogy between proceedings of this sort and proceedings to form local improvement districts in cities and towns under the provisions of our Constitution. In such a case our Constitution provides that such improvement district can only be formed where a majority in value of the property owners have signed the petition. The act of signing the petition is in the nature of an election, and is an irrevocable act, because the signing of the petition is in the nature of casting a ballot at an election. A signer of a petition for the establish*1063ment of an improvement district cannot revoke Ms act except for cause shown.

In the present case more than ten names, as required by the statute, were left on the petition, and it cannot be doubted that Hill and the other remonstrants might withdraw their names at any time before the petition had been acted upon by the county court. Each petitioner acted on his individual responsibility, and, if he should change his mind on the question of whether the road should be vacated or not, he had a right to do so at any time before the county court acted upon the petition. Besides this, the record shows that Hill and the other remonstrants signed the petition upon the representation that the road described in it was the old road leading from' the main public road to the ferry formerly owned and operated by J. M. McClintock. When they found out that they had signed the petition upon a misrepresentation of fact and that the road in question was the one leading to the east and west approaches of the bridge across White River, they had a right to correct their mistake, because the petition had not been acted on by the county court before they withdrew their names.

In the circuit court J. M. McClintock filed a motion to dismiss the appeal because Hill and the other parties to the appeal had not filed the appeal bond required by § 5241 of Crawford & Moses’ Digest. McClintock did not ask or obtain a ruling upon his motion to dismiss the appeal, but, on the other hand, went to trial in the circuit court on the merits of the case. Under our system of pleading he will be deemed to have waived a ruling on his motion to dismiss the appeal and to have consented to the jurisdiction of the circuit court to try the case. Parker v. Wilson, 98 Ark. 553, 136 S. W. 981, and Pratt v. Frazer, 95 Ark. 405, 129 S. W. 1088.

It is next insisted that the giving of the appeal bond was a prerequisite to the exercise of jurisdiction by the circuit court, and could not ¡be waived. We do not agree with this contention. The giving of the appeal bond was for the benefit of McClintock and the other peti*1064tioners to the vacation of the road, and might be waived by them. The only purpose of the bond in the present case would have been for the payment of the costs of the case. If McClintock wished to avail himself of his right under the statute to have the appeal bond given, he should have insisted upon the circuit court acting upon his motion to dismiss the appeal. Nemier v. Bramlett, 103 Ark. 209, 146 S. W. 489, and Free v. Maxwell, 138 Ark. 489, 212 S. W. 325, where it was held that, where no affidavit for appeal was filed before an appeal was granted by the probate court, appellee waived the filing thereof by proceeding* to trial in the circuit court without objection on that account. By analogy, the appeal'bond required by the statute, being for the benefit of the appellee, might be waived by him. Appellee must be held to have waived a provision of the statute for his benefit to which he gave no attention until after the ease had gone to trial on its merits. His stipulation of facts and his agreement to try the case on the merits were sufficient waiver of his right to require the appeal bond under the statute.

It f ollows that the circuit court had .jurisdiction of the case, and this brings us to a consideration of the trial of the case in the circuit court on its merits.

The- record shows that no notice was given of the proceeding*'and that no viewers were appointed, and consequently no viewer’s report was made in favor of vacating the road, as required under § 5247 of Crawford & Moses’ Digest. It is contended, however, by counsel for appellee, that this is a proceeding under § 5249 of Crawford & Moses ’ Digest, and that no notice was necessary, under the ruling of Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260. We do not agree with this contention of counsel for appellee. Section 5249 confers upon the county court authority to. open new roads and to make such changes in old roads as they may deem necessary and proper. Section 5247 provides that, when any county road or -any part of any county road shall be considered useless, any ten citizens residing* in that portion *1065'of the comity may make application by petition to the county court to vacate the same. Thus it will be seen that the two sections of the statute operate in entirely different fields. There is a material difference in laying out a new road 'and making* changes and alterations in a public road, and in vacating it.

In Thompson v. Crabb, 6 J. J. Marsh. (Ky.) 222, it was said that there is. a palpable distinction between the alteration and the discontinuance of a public highway. In the one case the road is kept up, leading to the principal points, although it may be, by alteration, upon different ground from that on which it was first located. In the other it is abolished altogether, the authorities are exempted from keeping it in repair, and it may be stopped up entirely. Hence it was said that the Kentucky statute providing for a discontinuance of an established road did not apply to the ease of an alteration.

In the case at bar we are of the opinion that the proceedings was under § 5247, providing for the vacation of roads under certain conditions, and that the court erred in vacating' the road, for the reason that the provisions with regard to notice and the appointment of viewers provided by the statute were not complied with.

The judgment vacating the property was erroneous for another reason. It will be noted that § 5247 provides that, when any county road or any part of any county road shall be considered useless, it may be vacated by a proper petition filed in the county court. Under the statute the portion of the road could only be vacated when it was considered useless. The question of whether the part of- the road asked to be vacated had become useless was one of fact to be determined on the evidence. The question of the utility or non-utility of the part of the highway asked to. be vacated was therefore one for judicial determination, which could not be arbitrarily exercised by the county court.

The undisputed evidence shows that the part of the road asked to be vacated connected the east and west approaches to the bridge over White River with, the *1066Bankhead Highway, which is a part of the State system of highways, and is one which receives aid from the United States. The court will take judicial notice' that White River is a navigable river, and, if the approaches of the public road which connect with the bridge across that river should be vacated, the use of the whole road would be materially affected, and the use of the bridge as a means of crossing the river would be entirely abolished. Therefore it will be seen that, as long as the bridge is used as a part of the State Highway and as a means of crossing White River, the public road leading to the bridge on each side of it cannot, in the very nature of things, be considered useless, and it was erroneous for the county court to so hold. As a practical matter, those parts of the public road which are used as approaches to the bridge can never be considered useless as long as the (bridge is a part of the public highway for crossing White River. The circuit court affirmed the judgment of the county court vacating the road, and thereby adopted the view of the matter held by the county court, and committed error in so holding.

Other questions are pressed upon us for a reversal of the judgment, but the views which we have expressed are conclusive of the case. Hence it is not necessary to state, consider or determine the other questions relied upon by counsel for appellants for a reversal of the judgment.

It follows that the judgment will be reversed, and the cause will be remanded, with directions to the circuit court to reverse the judgment of the county court vacating the road in question, and to certify its judgment down to the county court, to the end that the judgment of the circuit court may be adopted by the county court and entered upon its record as the judgment of the county court. That is to say, the judgment of the circuit court will be that the order of the county court vacating the road in question will be reversed, and the county court ordered to dismiss the petition of J. M. MeClintock and others asking for a vacation of the public road in question. It is so ordered.