author:
George Rose Smith, J.
      Sam Robinson, Associate Justice,

text:
    Ark. State Highway Comm. v. Union Planters Natl. Bank.
    5-2004
    333 S. W. 2d 904
    Opinion delivered March 28, 1960.
    [Rehearing denied May 2, 1960]

      ■W. R. Thrasher, Bill B. Demmer, for appellant.

      Hale & Fogleman, for appellee.
   George Rose Smith, J.

This is an eminent domain proceeding by which the State Highway Commission seeks to condemn the necessary property rights to enable it to convert an existing highway across the appellees’ farm lands into a controlled-access facility. See Act 383 of 1953; Ark. Stats. 1947, Title 76, Ch. 22. In asking the jury for an award of substantial damages the landowners relied mainly upon the fact that their plantation will be effectively cut in two, lengthwise, by the new thoroughfare, since they will be prohibited from crossing it at any point along its three-mile passage over their property. The jury fixed the appellees’ compensation at $75,250. In seeking a reversal the Commission’s principal contention is that the landowners’ right to cross the public right of way had already been taken and consequently the loss of that right is not a compensable element of damage in this case.

The background facts are not in dispute. The appellees’ land may be referred to as the Woollard plantation. It contains 2,800 acres and is an irregularly shaped tract whose greatest dimension is its length north and south. Prior to 1952 the land was not traversed by any national highway. In that year the State Highway Commission relocated a portion of U. S. Highway 61 and for that purpose condemned an easement, 250 feet wide, running the length of the Woollard property. The landowners protested that the easement was unnecessarily wide, but we upheld the Commission. Woollard v. Ark. State Highway Comm., 220 Ark. 731, 249 S. W. 2d 564. That ease was later settled without a trial, and that is the taking now relied upon by the Commission to defeat the principal factor in the appellees’ damages.

A controlled-access facility may be broadly described as' a superhighway which motorists can enter and leave only at designated interchanges, usually some miles apart. The 1952 condemnation proceeding was not instituted for the purpose of acquiring a right of way for a controlled-access highway; indeed, Arkansas then had no statute authorizing the creation of such a facility. At that time the Commission planned to construct, and later did construct, a conventional two-lane highway upon the easement it was acquiring. The unusually wide right of way was meant to allow the Commission to add another two lanes sometime in the future, thus providing the customary type of divided thoroughfare with two lanes for northbound traffic and two for southbound traffic.

The proof shows that the original construction pursuant to the 1952 taking did not seriously interfere with the operation of the Woollard plantation. Within the limits of the property the new highway, U. S. No. 61, was crossed at grade by four county roads and by at least four private farm roads. The owners continued to conduct their enterprise as a unit. There is ample proof that the relocation of Highway 61 did not in itself substantially lower the value of the Woollard lands.

Later on, however, this part of Highway 61 was taken into the new interstate highway system. The Highway Commission then filed the present proceeding against the Woollards and others, to the end that the existing highway may be converted into a controlled-access facility. The Commission seeks, first, to acquire the fee simple title that underlies its existing easement, because the statute requires that the State own a limited-access facility in fee. Ark. Stats., § 76-2205. Secondly, the Commission is condemning a little more of the Woollard land, about an acre, which the jury valued at $250. Finally, it was stipulated that the Commission’s declaration of taking is “for the acquisition and control of access rights of land adjacent and contiguous to the original highway right of way.”

The controlled-access facility, when completed, will consist of four parallel two-lane paved highways. The two double highways in the middle will be one-way routes, one carrying northbound through traffic and the other carrying southbound through traffic. The outer highways will be two-way service roads, carrying local traffic and affording access to the inner lanes only at the interchanges. ,

No interchange is to be built within the limits of the Woollard lands. For these landowners and their employees to cross from one side of the plantation to the other they must travel the service roads to and from the nearest interchanges, one being an overpass about half a mile north of the Woollard property and the other being an overpass about equally far south. This bisecting of the plantation will prevent its being operated in the future as a single unit. Additional headquarters must be built, additional machinery must be purchased, and other additional expense must be incurred in operating as two farms what was formerly one undertaking. There is an abundance of substantial testimony, given by qualified expert witnesses, that the Woodards’ total severance damages will materially exceed the jury’s verdict. Indeed, we emphasize the fact that nowhere in the Highway Commission’s brief does it question the amount of the award if the landowners’ inability to cross the highway is a compensable element of damage. What the Commission contends is that the jury should not have been permitted to take this severance damage into account at all.

The Commission’s argument may conveniently be considered in two separate aspects. First, was the Woollards’ right to cross from one side of their property to the other taken by eminent domain in 1952? Secondly, if not, can that right be taken in the present proceeding through an exercise of the police power, without compensation to the landowners?

On the first point we think it clear that the Wool-lards’ right to cross the public easement was not within the issues of the 1952 condemnation. If 'that proceeding had been - intended to bisect the Woollard plantation as effectively as if a high stone wad had been erected down the center of the property it cannot he doubted that the landowners would have been entitled to commensurate severance damages. St. Louis, Ark. & T. Railroad v. Anderson, 39 Ark. 167; Ashley, Drew & N. Ry. Co. v. Gulledge, 121 Ark. 143, 180 S. W. 222; Ark. State Highway Comm. v. Speck, 230 Ark. 712, 324 S. W. 2d 796.

In 1952, however, the Woollards had no reason to anticipate that their commonplace privilege of crossing the State’s easement might someday be destroyed by the installation of a controlled-access facility. Our legislature had not then adopted a statute permitting the creation of limited-access highways. We doubt if in 1952 there was anywhere in the entire state a stretch of rural public road as much as a quarter of a mile long, much less three miles long, upon which crossings were prohibited.

The Highway Commission itself has often recognized that after a condemnation an abutting owner whose land has been cut in two still has a right to cross the road. This recognition is quite apparent in those cases in which the Commission has sought to mitigate its liability for severance damages by voluntarily providing the landowner with a means of crossing the new highway. For example, in Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738, where a relocation of Highway 64 divided the land into two tracts, the opinion observed: “The Highway Department . . . agrees to build an underpass under the right-of-way whereby livestock can be moved from the severed 55 acres south of new 64.” In a similar situation we remarked in Ark. State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S. W. 2d 791: “According to the undisputed evidence the Highway Commission will provide a grade crossing.”

It is plain enough that in the Byars case the Commission would not have been permitted to reduce its liability by providing an underpass and then later on contend that it had already acquired by eminent domain (as distinguished from the police power) the right to close that underpass. So in the Woollard case. In 1952 the Woollards could not have successfully asserted their present claim, for there were available after the taking four public crossings and at least that many private crossings. In negotiating with the Woollards the Highway Commission was entitled to rely upon those crossings to reduce its liability to the landowners. It cannot now take the inconsistent position that the Woollards’ right to cross the highway was bought and paid for in 1952.

We may add the observation that, had the present claim been asserted in the 1952 proceeding, the claim not only would have been disallowed but also should have been disallowed. There was then no substantial basis for supposing that the Woollards’ right to cross the public easement would ever be disputed. If they had been entitled to recover compensation upon the theory that their plantation was being effectively cut in two by a conventional highway, the judgment in their favor would have been a precedent exposing the State to similar speculative and even fictitious claims in every case in which the Commission condemned a right of way across a tract of land. It seems clear that such a holding would be neither legally sound nor in the public interest.

The second aspect of the Commission’s argument is more perplexing. Here it is contended that after the State has acquired a highway easement, and especially one 250 feet wide, it is entitled to put into effect, without compensating an owner whose land bestrides the highway, a traffic regulation which prevents any person from crossing the public right of way except at specified interchanges.

For the most part the authorities cited by the Commission do not reach the present situation, for they involve land lying entirely on one side of the street or highway. It is settled that in that situation the public authorities may erect a median strip down the center of the thoroughfare or may in some other manner prohibit left turns or two-way traffic without compensating the abutting landowner for his inconvenience or for the loss of business that results from the change in the flow of traffic. City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187; Holman v. State, 97 Cal. App. 2d 237, 217 P. 2d 448; People v. Sayig, 101 Cal. App. 2d 890, 226 P. 2d 702; Dougherty County v. Hornsby, 213 Ga. 114, 97 S. E. 2d 300; Langley Shopping Center v. State Roads Comm., 213 Md. 230, 131 Atl. 2d 690; Turner v. State Roads Comm., 213 Md. 428, 132 Atl. 2d 455; Muse v. Miss. State Highway Comm., 233 Miss. 694, 103 So. 2d 839; Brady v. Smith, 139 W. Va. 259, 79 S. E. 2d 851. This general principle is also being applied by us in another case decided today, Ark. State Highway Comm. v. Bingham, 231 Ark. 934, 333 S. W. 2d 728, wherein we are holding that a loss attributable merely to the diversion of traffic is not compensable.' "We find three cases involving tracts on opposite sides of the highway, but these decisions are readily distinguishable on the facts and need not be discussed. Iowa State Highway Comm. v. Smith, 248 Iowa 869, 82 N. W. 2d 755; Warren v. Iowa State Highway Comm., 250 Iowa 473, 93 N. W. 2d 60; Carazalla v. State, 269 Wis. 593, 70 N. W. 2d 208, rehearing granted, 270 Wis. 593, 71 N. W. 2d 279.

It is quite apparent that the doctrine of the cases cited, involving land on only one side of the highway, would have to be materially extended to reach the situation now before us. In that event it would be necessary to determine whether the exercise of the police power was being carried so far as to amount to a taking of private property. As the court pointed out in the leading case of Pennsylvania Coal Co. v. Mahon, 260 U. S. 393: “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. ... We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

We do not reach, this question, however, for we are convinced that in the case at bar the State is actually-exerting its power of eminent domain. It thus becomes unnecessary for us to decide whether the same result might constitutionally be attained through the exercise of the-police power alone, without payment to the landowner.

To begin with, the controlled-access highway statute contemplates a taking, for it specifically provides that the State’s right of way must be owned in fee simple. Ark. Stats., § 76-2205. Of course the legislature knew that an existing easement could not be enlarged to a fee by means of a mere police regulation, and there is no good reason to suppose that the legislature meant to divide the transaction into two steps, one involving the police power and the other the power of eminent domain.

The particular situation now before us will evidently arise very infrequently in Arkansas, for only in rare instances will the State own a highway easement that is sufficiently wide to accommodate a controlled-access facility and that is also so located as to be suitable for that use. In the usual case the Highway Commission will be compelled to condemn a new right of way for this type of highway, and in such an original proceeding it goes without saying that a landowner whose land is cut in two will be entitled to compensation for his loss. The fact that the legislature did not authorize the Highway Commission to convert an existing easement into a controlled-access facility even when that could be accomplished demonstrates that some importance was attached to the acquisition of the fee simple.

In the second place, when the arguments on each side are fairly well balanced considerations of equity and justice are entitled to great weight. Here the equities undeniably lie with the landowners. It is nowhere denied that they have suffered an actual pecuniary loss at least equal to the jury’s award. As Ave have seen, they could not have asserted their present claim in 1952, for the division of their property was not then contemplated. If their cause of action is. denied they will have been deprived of any opportunity to assert a just claim. Yet all that has happened in the meantime has been the passage of federal laws creating an interstate system of limited-access highways. Public Law 627, June 29,1956, 70 Stat. at Large 374; 23 U. S. C. A. § 111. If the Woollards’ land had been taken after the adoption of the federal law instead of before its passage their damages would unquestionably have been paid. In the absence of a clear expression of the legislative intent we are unwilling to read into our controlled-access highway statute a requirement that these particular appellees must bear a unique burden, a burden that other landowners will escape simply because their property happened to be taken at a more favorable moment.

The Commission’s remaining points do not require extended discussion. We see no real objection to testimony by which an expert witness gave his “personal” opinion about land values; the opinion of any expert is of course personal to that witness. Nor do we think the Commission was prejudiced by the fact that Mr. Wool-lard mentioned in the course of his testimony that the county had discontinued its maintenance of a bridge.

There is merit, however, in the appellant’s contention that the fees of the appellees’ expert witnesses, amounting to $1,280.00, should not have been taxed as costs in the case. The allowance of costs is purely statutory, and in the absence of a statute the fees of expert witnesses cannot be charged against the losing party. Ark. Game & Fish Comm. v. Kizer, 222 Ark. 673, 262 S. W. 2d 265, 38 A. L. R. 2d 1372. This modification of the judgment amounts to a substantial recovery and thus entitles the appellant to recover its costs of appeal. Supreme Court Rule 24.

Modified and affirmed.

McFaddin and Johnson, JJ., concur.

Holt and Robinson, JJ., dissent.

Sam Robinson, Associate Justice,

dissenting. The majority does not cite a single authority that sustains the view expressed, although there is an abundance of literature and cases on the subject involved, including splendid Law Review articles such as: Cunnyngham, The Limited-Access Highway from a Lawyer’s Viewpoint, 13 Mo. L. Rev. 19; Controlled Access Highways in Iowa, 43 Iowa L. Rev. 258; Covey, Control of Highway Access, 38 Nebr. L. Rev. 407; Clarke, The Limited-Access Highway, 27 Wash. L. Rev. Ill; Covey, Highway Protection Through Control of Access and Roadside Development, 1959 Wise. L. Rev. 367. None of the Law Review articles supports the position taken by the majority, and there are no cases sustaining that view.

In my opinion the only thing acquired by the State in this action, in addition to the one acre valued at $250, is the fee in the right of way, in which the State already had a right of way easement. In a case of this kind the fee has a nominal value only. People v. Sayig, 101 Cal. App. 2d 890, 226 P. 2d 702. In 1952 Woollard was paid for the 250-foot right of way across his property. Woollard v. State of Ark. Highway Dept., 220 Ark. 731, 249 S. W. 2d 564. It will be seen from the decision in that case that there was taken into consideration, among other things, the fact that the Highway Department contemplated building a modern highway of such dimensions and character that Woollard would be precluded from crossing it at any place except the points designated and prepared by the Highway Department for that purpose. "When the right of way was taken by the State, Woollard lost all interest in the land embraced within the right of way except the fee, which is of no practical value, and the right of access, and he still has access to the right of way. In the first Woollard case, this Court said: “Even though the Commission’s existing commitment is to construct only a 24-foot two-lane highway, its plan for the future, when justified by available funds, is to build a second two-lane road, separated from the first by a parkway that Avill provide earth for the necessary fills and also promote the public safety by dividing the two arteries of traffic. By acquiring a sufficiently broad right-of-way in the first instance the Commission expects to avoid the expense that is incident to any attempt to enlarge a roadbed that has been hemmed in by the various commercial establishments that tend to spring up along the border of a public highway. ’ ’

Woollard should not be compensated more than once for the taking of the right of way. In the case of Arkansas State Highway Commission v. Fox, decided March 23, 1959, 230 Ark. 287, 322 S. W. 2d 81, this Court said: “Unquestionably a landowner is entitled to be fully compensated for his loss under the processes of eminent domain. However, we have established methods by which a determination of ‘just compensation’ is to be made. In a situation as the case at bar where there is a partial taking of a landowner’s property we have established the rule that the measure of damages is the difference between the value of the whole land before the appropriation and the value of the portion remaining after the appropriation. Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706 (1955); Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051 (1938); Newport Levee District v. Price, 148 Ark. 122, 229 S. W. 12 (1921).

“In spelling out this rule we said in Little Rock, Mississippi River and Texas Railway Co. v. Allen, 41 Ark. 431 (1883): ‘ The correct rule for measuring damages is to determine the value of the whole land without the railway at the time same was built, then find the value of the portion remaining after the railway is built, and the difference between the two estimates will be the true compensation to which the party owning the land is entitled. ’ ’ ’

In the case of Keith v. Drainage Dist. No. 7 of Poinsett County, 183 Ark. 384, 36 S. W. 2d 59, the Court quoted with approval the rule laid down in Newgass v. Railway Co., 54 Ark. 140, 15 S. W. 188, that the value of private property taken for public use must be determined as of the date a petition for condemnation is filed. In the case at bar the petition was filed and the right of way was taken back in 1952. Every element that can fairly enter into the question of market value and which a business man of ordinary prudence would consider before purchasing property should also be considered by the jury in arriving at the value of the property before and after the taking. Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706. And in Little Rock, Mississippi River and Texas Railway Co. v. Allen, 41 Ark. 431, this Court said that the measure of damages for the right of way taken by a railroad company across a city or town lot is the difference between the value of the whole land without the road at the time it was built and the value of the portion remaining after it was built; and in estimating this value the jury should consider all present and prospective actual damages resulting to the owner from the prudent construction and operation of •the road, the effect the road would have in decreasing the value of the land for gardening purposes, as well as inconveniences caused by embankment, excavations, ditches and obstruction to the free egress and ingress of the premises.

And in Little Rock and Ft. Smith Railroad Co. v. Greer, 77 Ark. 387, 96 S. W. 129, the Court said: “It is a well-established rule of law that the owner of land taken for railroad purposes is entitled, before or at the time of the taking, to compensation for all damages, present and prospective, which he sustains by reason of the construction of the railroad . . . Such damages include the value of that part of the land which is taken, as well as the damages consequent upon such taking to the residue. The doctrine invoked by appellant has its rationale in the presumption that, in the absence of proof to the contrary, the owner ivho is entitled to such compensation received same before or at the time his land toas charged with the servitu.de; that this toas considered and settled when the owner conveyed the land to the railroad or when the railroad acquired its title by condemnation; ... [Emphasis supplied] On rehearing Judge McCulloch said: ‘ ‘ The principle is made clear in the original opinion that where a railroad corporation lawfully acquires a right of way over land, either by grant, prescription or condemnation, such acquisition covers all damages, present and prospective, resulting to the owner tohose land is invaded. This upon the theory that full compensation is allowed at the time, and can he recovered only once.” [Emphasis supplied] Thus, according to the law of this State, as heretofore announced by this Court, the presumption is that Woollard, the landowner, was paid full value for the right of way in 1952.

Of course, Woollard was damaged by the severance of his place, but that damage was paid for in 1952. In the case at bar the landowners are being allowed compensation on the theory that their plantation is being effectively cut in two. The answer to that theory is that it was cut in two by the first taking in 1952, when 98 acres were taken. The one acre taken at this time certainly does not cut the 2,800 acre plantation in two. In 1952 it was known that the highway would sever the plantation, and witnesses so testified in the first case, and it was shown that the kind of road to be constructed would prevent the crossing of the right of way except at points designated by the Highway Department. The fact that such a right of way would be constructed is pointed out in the first Woollard case above mentioned.

To sustain its view, the majority cites Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738, and Arkansas State Highway Commission v. Dupree, 228 Ark. 1032, 311 S. W. 2d 791. But those two cases do not support the majority’s contention. It is clearly recognized in those cases that the property owner had the right to recover damages for the severance of his property, and the question was whether the damages allowed in the trial court were excessive. It was pointed out in those two cases that the fact that the Highway Department was providing facilities for the property owners to cross the right of way had a tendency to mitigate the damages at that time, the time of the taking. There is nothing in either of those cases which indicates that the property owner can come into court several years after the taking and recover damages because he is unable to cross the highway at any place he might wish to cross it. The majority mentions that county roads crossing the right of way will be closed.

But this Court has held time and again that a property owner cannot recover damages because a right of way has been changed or closed. See Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949, and cases cited therein.

By purchasing the 250-foot right of way across the Woollard land in 1952, the State acquired the valid right to construct four strips of concrete pavement, or any other number of such strips, on such right of way. In the case of Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So. 2d 839, 847, the court said: “Land condemned for highway purposes without limitation as to surface use is at all times under the control of the highway authorities, which may make such use of the land as may be required; and the abutting landowner’s right of access and user are subject to the right of the state under the police power to regulate and control the traffic on the highway in the interest of safety, and to restrict in a reasonable manner entrances from abutting property.” In Jones Beach Blvd. Estate v. Moses, 268 N. Y. 362, 197 N. E. 313, 315, the court, in discussing the rights of an abutting landowner to an easement of access in a public highway and the right of the state to regulate and control traffic on the public highways, said: “The rights of an abutter are subject to the right of the state to regulate and control the public highways for the benefit of the traveling public. Sauer v. City of New York, 180 N. Y. 27, 72 N. E. 579, 70 L. R. A. 717; Ryan v. Preston, 59 App. Div. 97, 69 N. Y. S. 100. See Perlmutter v. Greene, 259 N. Y. 327, 182 N. E. 5 [81 A. L. R. 1543]; Kane v. New York El. R. Co., 125 N. Y. 164, 176, 26 N. E. 278, 11 L. R. A. 640. Cf. Miller v. State, 229 App. Div. 423, 243 N. Y. S. 212; Farrell v. Rose, 253 N. Y. 73, 170 N. E. 498, 68 A. L. R. 1505. Although the abutting owner may be inconvenienced by a regulation, if it is reasonably adapted to benefit the traveling public, he has no remedy unless given one by some express statute.”

The State has the authority to regulate the traffic and prevent Woollard or anyone else from moving automobiles, trucks and heavy farm implements across the right of way except at certain places where the access is controlled in order to protect the traveling public from the hazards that would be present if such equipment were permitted to cross at just any place, day or night. The abutter’s right of access is subject to the superior public interest. In the Wisconsin case of Neenah v. Krueger, 206 Wis. 473, 240 N. W. 402, the court said: “However, this right [the abutter’s right of access] is, in common with most other rights, subject to reasonable regulations in the public interest and for the promotion of- public convenience and safety. ’ ’

The State has the right under the easement obtained in 1952 to build a modern highway and control the traffic thereon and did not acquire any additional rights in that respect by virtue of acquiring the fee in 1959. Ark. Stat. § 76-201.5 provides: “The Commission [Highway Commission] shall be vested with the following powers and shall have the following duties: . . . (m) To adopt reasonable rules and regulations from time to time for the protection of, and covering, traffic on and in the use of the State Highway System and in controlling use of, and access to, the highways . . . ” Under this statute the Commission can certainly adopt rules against left-hand turns, U-turns, and crossing the highway except at designated points. In addition, by virtue of its police power the State has such authority. Carazalla v. State of Wisconsin, 270 Wis. 593, 71 N. W. 2d 276. In Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So. 2d 839, 847, the court said: “As the problem of regulating motor vehicle traffic on the highways has become more and more complex, new standards of design for highway construction have been adopted by the highway authorities to reduce the hazards of travel and expedite the flow of traffic. . . . Multiple lane highways have been constructed in all parts of the country, and median strips or neutral zones between lanes of traffic on multiple lane highways, with interchanges or crossovers at reasonable intervals to enable motorists to pass from one traffic lane to another, have been authorized and provided for in the standards of design adopted for the construction of such highways. Such median strips or neutral zones provide for a complete separation of traffic moving in opposite directions, and reduce the hazards incident to motor vehicle travel; and the establishment of such median strips or neutral zones have been recognized as a proper exercise of the police power. Rand v. Mississippi State Highway Commission, 191 Miss. 230, 199 So. 374; Commonwealth v. Nolan, 189 Ky. 34, 224 S. W. 506, 11 A. L. R. 202; Jones Beach Blvd. Estate v. Moses, supra [268 N. Y. 362, 197 N. E. 313, 100 A. L. R. 487]; City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187; Impagliazzo v. Nassau County, Sup., 123 N. Y. S. 2d 819.”

It will be recalled that in the first Woollard case a 250-foot right of way was taken by the State. Among other things, Woollard contended that a right of way of that width was not needed. In pointing out that a 250-foot right of way was not of an excessive width, this Court said: “It is evident that the present undertaking would not be necessary had the State taken a sufficiently wide easement when the road from Marion to Turrell was originally laid out. In these circumstances it is certainly permissible to look ahead in its planning.” Woollard v. State, supra [220 Ark. 731, 249 S. W. 2d 564].

There are four concrete strips on the right of way. Woollard has complete and full access to the two outside strips. He may move his vehicles onto these two strips at any point he so desires, and travel in either direction to controlled points, where he can cross the two center concrete strips with safety to himself and others. I don’t see how anyone can read the first Woollard case and say it was contemplated that the landowner would have the right to cross the two center strips, when constructed, at any place other than controlled points. The opinion clearly states that it was planned to build a parkway down the middle of the two strips from which dirt would be taken to be used as fills for the concrete strips. There is nothing to indicate that a vehicle would be able to cross this parkway. It was to be put there to separate the lanes of traffic and make the highway safe.

According to the great weight of authority, and the majority has cited no authority to the contrary, Wo ollard has not been denied access to the system of highways, and he is entitled to nothing more. Department of Highways v. Jackson, 302 S. W. 2d 373. He does not have the right to cross the highway with his equipment at any point he may choose. Turner v. State Roads Commission, 213 Md. 428, 132 A. 2d 455; Dougherty County v. Hornsby, 213 Ga. 114, 97 S. E. 2d 300; Brady v. Smith, 139 W. Va. 259, 79 S. E. 2d 851. In the last cited cases the highways were divided into traffic lanes with a physical barrier between them, which allows the abutter to travel in only one direction when leaving his property. Our own case of City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187, is to the same effect. When once on the highway an abutter’s rights are no more nor less than any other user of the highway. Jones Beach Blvd. Estate v. Moses, 197 N. E. 313; Dougherty County v. Hornsby, 97 S. E. 2d 300.

In the case of Turner v. State Roads Commission, 213 Md. 428, 132 A. 2d 455, the court quoted from Langley Shopping Center, Inc. v. State Roads Commission, 213 Md. 230, 131 A. 2d 690, 693, as follows: “ ‘It seems to us entirely reasonable that if the State could divert traffic entirely away from the plaintiffs’ corners without being-liable for damages for doing so, it may, in the interest of safety, and without incurring liability for damages, interpose an obstacle which may render access to the plaintiffs ’ properties less easy but which does not actually or virtually destroy the plaintiffs ’ access to the highway. An opposite view would require the State to pay through the nose for the privilege of further improving and adding to the safety of highways which it has built...’ ” [Emphasis supplied]

In Warren v. Iowa State Highway Commission, 250 Iowa 473, 93 N. W. 2d 60, it was held that where a farmer’s home place and a 10-acre tract on a secondary road were located to the east of a national interstate and defense highway and her slightly larger tract used as a part of the same farming operation ivas located west of said highway oh the same secondary road, and the closing of the secondary road on either side of the highway required the farmer to travel a circuitous route over three miles in length to go from her home place to the other tract instead of a direct one-quarter mile route over the secondary road, and the farmer’s right of access to the secondary road was not affected and she had the same means of ingress and egress thereto as she had prior to the closing, farmer had no special damages and her injury, though greater in degree, was the same in kind as that suffered by the general public and was not compensable.

In Carazalla v. State of Wisconsin, 270 Wis. 593, 71 N. W. 2d 276, the court said, in discussing limited access highways and their effect upon abutting property owners: “If the abutting landowner’s access to the highway is merely made more circuitous, no compensation should be paid.” To the same effect is the case of Holman v. State, 97 Cal. App. 2d 237, 217 P. 2d 448, where the court said: “The facts pleaded herein show that the highway upon which plaintiffs’ property abuts is not closed and that plaintiffs, once on the highway to which they have free access, are in the same position and subject to the same police power regulations as every other member of the traveling public. Because of a police power regulation for the safety of traffic, they are, like all other travelers, subject to traffic regulations. They are liable to some circuity of travel in going from their property in a northerly direction. They are not inconvenienced whatever when traveling in a southerly direction frorq their property. The re-routing or diversion of traffic is a police power regulation and the incidental result of a lawful act and not the taking or damaging of a property right. . . .

‘ ‘ If the contention of the plaintiffs herein is sustained, the right of the State to control the traffic as a safety regulation would be definitely curtailed and traffic islands or double lines in the highway to separate through traffic would be prohibited. The damage of which plaintiffs complain would be the same if no division strip had been constructed on the highway in question but that double white lines had been painted on the highway and a ‘no left turn’ sign had been erected, or if the entire highway had been designated as a one-way street.”

In accord is People v. Sayig, supra [226 P. 2d 702].

Mere circuity of travel is not cause for damages. State v. Linzell, 126 N. E. 2d 53; People v. Schultz Co., 268 P. 2d 117; Blumenstein v. City, 299 P. 2d 347; State v. Fox, 332 P. 2d 943.

For all practical purposes, Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N. W. 2d 755, is directly in point with the case at bar. The Smiths owned property on both sides of Hubbell Avenue; their business was on one side of the street and their home was on the other. A controlled access highway was constructed and the property owners could no longer cross directly from their home to the place of business. The court said (p. 758): “Heretofore defendants could cross Hubbell Avenue by motor vehicle between their home and business properties by driving from 500 to 600 feet. "When the contemplated highway improvement is made they may cross only at East 38th or 42d Street. The increased distance in traveling from their home to place of business and back again will approximate a mile. In the future the residence property may be entered from the highway only when going east and upon leaving one must drive east as far as 42d Street. West bound travelers desiring to enter the residence property will be required to go west to 38th Street, make a U turn there and go back east to the driveway. ’ ’ In holding that the property owners suffered no compensable damages, the court said (p. 761): “We have no difficulty in disposing of defendants’ appeal from the part of the judgment holding the prohibition of crossing the highway, left turns and U turns except at designated points where there are no raised ‘jiggle’ bars does not constitute a taking of defendants’ property within the law of eminent domain. The law on this phase of the controversy seems to be thoroughly settled by many recent decisions and the judgment must be affirmed on defendants’ appeal.” Among the many eases eited by the court in support of its conclusion is City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187.

And finally we come to our case of Arkansas State Highway Commission v. Bingham, which is being handed down the same day as the case at bar. In nay opinion the two cases are in hopeless conflict. Mrs. Bingham owned valuable property. By reason of the construction of controlled access facilities, the value of the property was greatly depreciated. In that case this Court is holding that according to the great weight of authority, including decisions of this Court, Mrs. Bingham and her tenants have suffered no compensable damages. The decision in the Bingham case is sound and is supported by practically all of the authority on the subject. But in the case at bar, where Woollard has suffered damages because of the construction of controlled access facilities, he is permitted to recover a large sum as damages. (Woollard has suffered small damages compared to those suffered by Mrs. Bing'ham and her tenants.) There is no valid distinction between the two cases. Woollard is damaged because he cannot cross the center strip of the highway except at controlled points. Mrs. Bingham is damaged because people who would ordinarily patronize her service station cannot leave the center strip except at controlled points. In fact, there is a great deal more merit to Mrs. Bingham’s claim for damages than there is to the claim of Woollard. Woollard was actually paid for the damages he sustained by reason of the severance of his place. The law presumes that he was paid in full for all damages sustained. Mrs. Bingham has been paid nothing for the loss she has sustained by reason of the access facilities preventing the traveling public from conveniently reaching her property.

In the Bingham case to sustain the conclusion reached there are cited the cases of City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187; Muse v. Mississippi State Highway Commission, 103 So. 2d 839; State v. Linzell, 126 N. E. 2d 53; State v. Fox, 332 P. 2d 943; and Blumenstein v. City, 299 P. 2d 347. I submit that all of those cases support the view I have expressed in this dissent and do not sustain the finding of the majority in the case at bar.

In referring to what it would mean to sustain the same kind of contention that Woollard, the landowner, makes in the ease at bar, Clarke on The Limited-Access Highway, supra [27 Wash. L. Rev. Ill], says: “It would mean in effect that every abutter could demand an opening through the central median or dividing strip both between the outer highway and the through-traffic lanes, and through the center dividing strip of the through lanes. It is obvious that such concession to abutters would defeat the underlying purpose of the limited-access facility. Yet the only alternative under' such a rule of law is payment of . . . tribute by the public to adjacent owners. This tribute could be so great in the aggregate that the cost of freeways would, in fact, be prohibitive.” And Covey on. Highway Protection Through Control of Access and Roadside Development, supra [1959 Wisc. L. Rev. 567, 581], has this to say: “Further, as a matter of practice, if the state must build a service road and compensate the abutter for being placed on it, the highway commission will not build such auxiliary facilities. ” As it now stands, the Highway Department can hardly hope to build a modern highway system because of the large damages it will have to pay to every property owner who has had his property severed and is prevented from crossing the right of way at just any point he may choose, and it is fairly certain that in other cases the cost will be heavy, as it is in the ease at bar.

For the reasons set out herein, I respectfully dissent.


source: Caselaw Access Project

author: George Rose Smith, J. Ed. F. McFaddin, Associate Justice,

license: Public Domain

text:
    Tull v. Ashcraft.
    5-2085
    333 S. W. 2d 490
    Opinion delivered March 28, 1960.

      John L. Hughes, for appellant.

      Joe E. Purcell, for appellee.
   George Rose Smith, J.

This is a boundary line dispute. A. C. Tull, who owns 26 acres west of the disputed line, brought suit to quiet his title in accordance with a fence that existed for about 35 years. The defendants, Orville Ashcraft and his wife, who own six acres east of the line, contended that the fence did not represent the boundary and that the true line, according to the Government survey, was 35 feet west of the fence. The chancellor found that the fence had not been recognized as a division fence, and upon that finding he fixed the line in conformity with the Government survey. Tull has appealed.

We have concluded that the decree is against the weight of the evidence, for in our opinion the long-continued existence of the fence is decisive of the case.

Both tracts were formerly owned by the appellant’s father, John M. Tull. In 1922 the elder Tull sold the east six-acre tract to Ms son-in-law7, W. H. Ashcraft, whose son is the appellee Orville Ashcraft. W. H. Ash-craft took possession of his land, and in 1922 or 1923 he erected the fence in question. He testified that in placing the fence he started at his neighbor’s line to the east and stepped off what he thought to be 110 yards, 'which was the width of his own property. Although he erected the fence and evidently tried to put it on the line W. H. testified that he did not recognize it as the line: “I figured all the time I was short.” He does not say, however, that he communicated his doubts to anyone at all, and he admits that the fence remained in place for about 35 years, being kept up by the succeeding landowners. W. H. was not asked how long he lived on the property, but we infer that he moved away long ago, as his son Orville testified that he was brought up in a different part of the county. It was not until 1955 that Orville bought the land from Vada Hawkins and returned to his father’s former home. At the trial there was no testimony from anyone whose ownership intervened between that of the two Ashcrafts.

On the other side of the fence the appellant, who is Orville’s uncle, has been in possession of Ms tract ever since he purchased it from his father in 1926. Tull testified without contradiction that he was in undisturbed possession for 33 years, that the fence was always considered to be the line, and that the fence was maintained by the adjoining owners until part of it was taken down a year or so before the trial. Not only is there no contradiction of Tull’s testimony; it is corroborated by his brother and to some extent by W. H. Ashcraft, an adverse witness, who, as we have seen, admits that the fence remained in its original place for -about 35 years.

Upon this testimony it cannot be doubted that Tull has acquired title to the disputed strip by adverse possession. We have frequently held that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. Deidrech v. Simmons, 75 Ark. 400, 87 S. W. 649; Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710; Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S. W. 2d 836. As we said in a very similar case, Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18: “It is true that in this case the original rail fence line was established without a prior dispute as to boundary; but the recognition of that line for the many intervening years (34 in this case) shows a quietude and acquiescence for so many years that the law will presume an agreement concerning the boundary.”

In deciding the case as he did the chancellor evidently relied upon the appellees’ testimony, which was largely directed to showing that Tull, after the present dispute arose, at first conceded the surveyed line to be the boundary. It is shown that Tull did not object to the line’s being surveyed and that when the line was found to be west of the fence Tull recognized his nephew’s rights by removing some young fruit trees he had planted on the strip in controversy. On the witness stand Tull candidly admitted that when he understood that Orville wasn’t getting the acreage that the elder Tull had sold many years ago he (the appellant) at first thought that he was supposed to defend the old title, “but since that time it was called to my attention the 7 year law would hold in this ease; therefore I ceased to be interested.”

Tull’s conduct did not affect his title, for it had vested many years before by adverse possession. We stated the rule in Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444: ‘ ‘ This continuous possession for the statutory period, if adverse, divested plaintiff and his grantor of the title, and gave it to defendant, and the mere fact that the defendant afterwards in conversation with plaintiff recognized the justness of his claim to the land did not divest the title from defendant or estop him from asserting such title.” Later cases to the same effect include Stroud v. Snow, 186 Ark. 550, 54 S. W. 2d 693, and Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475.

Reversed.

Harris, C. J., and McFaddin, J., dissent.

Ed. F. McFaddin, Associate Justice,

(Dissenting). This is a boundary line case between adjoining landowners and relatives. In dispute is a strip 35 feet wide ■east and west, and 1320 feet long north and south. The appellee (defendant below) claims to the legal survey line; and the appellant (plaintiff below) claims to a fence 'line by (a) adverse possession, and (b) by long established boundary.

J. A. Tull, father of the appellant, was the common source of title. In 1922 J. A. Tull conveyed to the appellee’s grantor the east one-fourth of a certain 40-acre tract ; and in 1926 J. A. Tull conveyed to the appellant the west three-fourths of the same 40-acre tract.1 The boundary line between the said east one-quarter and the west three-quarters of the 40-acre tract is the line in dispute.

Appellant claims that he has all the time been in possession up to a certain fence, which he claims is the long established boundary; and also that a maple tree on that line was a recognized landmarker. The man who erected the fence testified that he began where he thought the east line of the 40 acres was, and stepped off 110 yárds to the west, and then erected the fence in question. He testified that it was never recognized by anyone as being a real boundary line fence, but was only a fence for convenience. The same witness, and others, testified that appellant never claimed the said fence was the line until just a short time before this litigation; that appellant went to see appellee just before the litigation and suggested that a survey be made to determine the true boundary; that when the survey was made it was discovered that the true boundary was 35 feet west of the fence; that appellant then asked appellee’s permission to remove — and did remove — some young peach trees from the 35-foot strip; and that appellant then told appellee that the other peach trees on the 35-foot strip belonged to the appellee.

All of the foregoing testimony had a direct and pertinent bearing on whether the defendant had the intention to hold adversely up to the fence line. The testimony certainly showed that there had never been the essentials of an agreed boundary. When the appellant was examined about these matters, the following occurred:

“Q. You never have claimed that the fence was on the line have you?
A. I am claiming it now.
Q. You are claiming it now?
A. Always claimed it.
Q. Did you offer to pay for a part of the cost for surveying that property?
A. Yes, sir.
Q. Have you paid for a part of the cost?
A. No, sir.
Q. Did you have some reason for changing your mind ?
A. Yes, sir.
Q. What was the reason?
A. Well, I started to tell you a while ago. At that time I understood. Orville felt like he wasn’t getting ten acres that Ms father had sold him and that he didn’t have ten acres in the beginning. The measurements might have been in error I knew and I felt that I was supposed to defend the old title made that he was to get ten acres but since that time it was called to my attention the 7 year law would hold in this case therefore I ceased to be interested.
Q. Who told you about the seven year law?
A. I found out.”

The appellant’s testimony, as copied, shows that appellant originally thought that he would have to defend appellee’s title to the true line (since appellant’s father had conveyed the land to the appellee’s grantor); and it was not until after the survey that appellant learned of the ££7-year law” (which, clearly means seven years adverse possession under the Statute of Limitations), and thajt after learning of the <£7-year law” appellant then decided to claim adversely up to the fence. This shows that appellant did not have for seven years the intention to claim adversely. In Collins v. Bluff City Lbr. Co., 86 Ark. 202, 110 S. W. 806, this Court held that title to land could not be acquired by possession for the statutory period, unless the possession be adverse. In Vittitow v. Burnett, 112 Ark. 277, 165 S. W. 625, a party in possession of land wrote to another, acknowledging the latter as the owner; and this Court held that the title of the party in possession was not adverse, since it was not of a hostile character. In Britt v. Berry, 133 Ark. 589, 202 S. W. 830, the plaintiff’s husband encroached on the defendant’s land by permission and the plaintiff did not notify the defendant that she was holding adversely, so she acquired no adverse possession. In Fulcher v. Dierks Lbr. Co., 164 Ark. 261, 261 S. W. 645, this Court held that if the holding of land began by permission, such holding did not ripen into adverse or hostile right until notice was brought home to the owner, and then the adverse holding had to be continued thereafter for the statutory period. In view of these, and many other eases, I maintain that Mr. Tull did not establish adverse possession or a long established boundary. It is my view that the Chancery decree should be affirmed.

Therefore, I respectfully dissent to the reversal by this Court; and the Chief Justice joins in this dissent.

       There was a 4-acre square in the northeast corner that was reserved, but the 4-acre tract is immaterial to this litigation.

       There was a reservation of a 4-acre tract in the northwest corner, hut this reservation is immaterial.


author: Paul Ward, Associate Justice. Jim Johnson, Associate Justice,

text:
    Ark. State Highway Comm. v. Bingham.
    5-2016
    333 S. W. 2d 728
    Opinion delivered March 28, 1960.
    [Rehearing denied April 25, 1960]

      William II. Donham, .for appellant.

      Ben M. McCray, Catlett & Henderson, for appellee.
   Paul Ward, Associate Justice.

This appeal presents to this Court for solution an important and far-reaching question. Briefly stated the question is: Is the loss to an owner of land abutting a public highway occasioned by a diversion of traffic a compensable loss? The essential and undisputed facts posing the above question and presenting the background out of which it arose are substantially as hereinafter set out.

Sometime prior to 1954 the Arkansas State Highway Commission (hereinafter referred to as the “Commission”) acquired a right-of-way from Little Rock to Benton for the purpose of reconstructing and relocating Highway 67-70 between those two cities. Said right-of-way was 200 feet wide in front of the property which is the subject of this litigation. It appears that the objective of the Commission was to construct along the entire length of said right-of-way two separate concrete strips — one strip to carry traffic from Little Rock to Benton and the other strip to carry traffic from Benton to Little Rock. At first only one such concrete strip was constructed and opened to traffic, and this strip was used to carry traffic both ways pending the construction of the other strip. The above mentioned concrete strip was located on the north portion of the right-of-way and for convenience will hereinafter be referred to as Strip No. 1 — this strip is the one that was designed to eventually carry one-way traffic from Little Rock to Benton.

On November 22, 1954 appellee, Mrs. Sallie Harvey Bingham, purchased 5.6 acres of land abutting Strip No. 1 on the north for which it appears that she pa-id approximately $5,500.00. On May 13, 1957 Mrs. Bingham leased the entire 5.6 acres to the Ark-La-Tex Oil Company, a corporation owned wholly by her two sons, for a period of ten years beginning October 1, 1955 with the Lessee having the option to renew for two successive five-year periods. Under the lease Ark-La-Tex Oil Company was to pay $100.00 per month net rent. Although, as set out above, the lease was actually dated May 13, 1957, we gather from the record that the lease arrangement was actually made in 1955 because the record shows that the Oil Company had already expended approximately $17,000.00 in the erection of a filling station which was opened for business in October 1955. The Ark-La-Tex Oil Company, also one of the appellees herein, has at all times since the last mentioned date operated the said filling station principally for the sale of oil and gas. Hereinafter we will refer to Mrs. Bingham as the Lessor and to the oil company as the Lessee. When Lessee constructed the filling station it also constructed four concrete driveways connecting the filling station with Strip No. 1.

After the erection of the filling station the Commission designated Highway 67-70 as Interstate Route No. 30 pursuant to a plan to construct a limited access highway from Little Rock to Benton as a part of an interstate highway system. It was therefore deemed necessary, and the Commission did, condemn and acquire, by eminent domain, a strip of ground 50 feet wide on both sides of the original right-of-way in order to provide access roads necessary to such a highway. These access roads (now completed) are hard-surfaced and carry traffic both ways, and they parallel both sides of the main highway its entire length with entrances to the main highway at numerous points. At the present time Interstate Route No. 30 is completed from Little Rock to Benton, with Strip No. 1 open to traffic from Little Rock to Benton, and a similar parallel strip carrying-traffic from Benton to Little Rock.

When the Commission filed this suit in February of 1958 to condemn and acquire the 50-foot strip of land off of the south side of Lessor’s property it was apparent that it would include four concrete driveways which Lessee had constructed to connect its filling station with Strip No. 1, and it was also apparent that the north line of the new highway right-of-way would come within a few feet of appellee’s pump stations. Although Lessee would have ready access to the access road which was to be built on the 50-foot strip of land for traffic in both directions, yet it was apparent he would not have ready access to entrance upon Strip No. 1 (carrying through traffic from Little Rock to Benton) since the said access road’s nearest connection with Strip No. 1 was somewhat more than a mile from the filling station. The apparent result was that the Lessee would not be able to sell gasoline to as many people traveling Strip No. 1 as he was able to do previously. The land actually taken from the Lessor amounted to .945 acres.

In response to appellant’s condemnation petition both Lessor and Lessee claimed damages by reason of the last taking- by the Commission. After a hearing the jury returned a verdict in favor of Lessee in the amount of $30,000.00 and in favor of the Lessor in the amount of $9,000.00, and judgment was rendered accordingly, from which judgments come this appeal. For a reversal appellant relies on five separate points, of which three relate to instructions given to the jury by the trial court, one is related to the introduction of certain testimony to prove the extent of damages, and the other (closely related to the latter point) is stated as follows: “The court erred in allowing the introduction of estimates of damages based solely on diversion of traffic away from the premises”. Our discussion will be limited primarily to the last mentioned point because we have concluded it contains merit, and because we feel our determination of that issue largely eliminates the necessity of considering the other points.

For the purpose of this opinion and for the sake of brevity, many of appellees’ contentions may be conceded. It is not disputed that Lessee spent approximately $17,000.00 in erecting and equipping the filling station; that it was selling well over 30,000 gallons of gasoline per month to persons traveling Strip No. 1 prior to the time of the new taking; that it had a profitable business and that practically all of this business was lost after the new taking; and that, in fact this loss equalled the amount of the judgment obtained. In other words, it may be conceded that this judgment in favor of Lessee should be affirmed if the Commission is liable for the loss occasioned by diversions of traffic in this particular case.

The importance of the issue here presented and the far-reaching effect of its determination commands careful consideration of the excellent briefs by both -sides and the authorities and reasoning presented therein. A definite determination of the involved issue is all the more important because numerous situations of like nature will in all probability hereafter arise because of the growing public demand for access-controlled highways.

An examination of all the available authorities convincingly suggests the conclusion that the Commission is not liable for Lessee’s loss of business resulting from a diversion of traffic. Although there is no decision of this Court precisely in point, there are several decisions of this Court and of other courts that lead unerringly to the conclusion theretofore mentioned.

In the case of Hempstead County v. Huddleston, 182 Ark. 276, 31 S. W. 2d 300, there was presented an issue-somewhat similar to the one under consideration here. The County Court laid out a new highway through appellee ’s lands which changed the location of the old road, which had run close to liis residence, and appellee sought to recover “for damages to land, crops, timber and fences by reason of the relocation and construction” of the new highway. The claim ivas disallowed by the County Court and an appeal was taken to the Circuit Court where the trial resulted in a judgment in favor of appellee. This judgment was reversed upon appeal to this Court because of the Circuit Court’s error in giving a certain instruction which allowed appellee to recover for damages resulting from the relocation. The specific objection to the instruction was that it permitted the jury to consider “as an element of damages the relocation of the road so as to leave the main residence of the appellee off the road . . .” This Court in condemning the instruction said: “We think the instruction is open to the objection made against it, especially when taken in connection with the evidence. Appellee was permitted to testify over appellant’s objections to the measure of his damages, which included the fact that the old road ran by his residence and that the new road did not”. The Court further pointed out that other witnesses testified to damages by reason of the relocation of the road so that it did not run immediately in front of appellee’s residence, and then made this statement: “We are of the opinion that this was not a proper element of damage to be considered by the jury, and that the court erred in giving Instruction No. A ... No person has a vested right in the maintenance of a public highway in any particular place, as the power is in the State to relocate the road at any time in the public interest. Therefore, the change in the road so as to leave appellee’s residence off the new road did not constitute an element of damage in this case”. We do not agree with appellee’s attempt to discount the relevancy of this Court’s decision in the Huddleston case, supra. It occurs to us that while the issue there was not expressed in the exact words that it is expressed in the case under consideration, yet we think the same principle is involved.

In the case of Greer v. City of Texarkana, 201 Ark. 1041, 147 S. W. 2d 1004, appellant insisted that the effect of changing Highway 71 was to destroy his property or at least depreciate its value because he no longer had the same convenient access to the highway. He was denied damages in the trial court and on appeal this Court affirmed the trial court and in doing so it said among other things: “Appellant has not been deprived of his means of ingress and egress, as Dudley Avenue, on which his property is located, remains unaffected by the proposed change. Unaffected also is Jackson Street running into Dudley Avenue at appellant’s corner. Appellant’s damage, as found by the court below, results from the diversion of the traffic; but this was not a recoverable element of damage”, citing among other cases the Huddleston case, supra. (Emphasis supplied). In that case the Court also cited with approval the case of Tuggle v. Tribble, 177 Ark. 296, 6 S. W. 2d 312. In the cited case Tuggle lived on Harlan Boulevard, designed as a public road, near Hot Springs. The County Court ordered a relocation some 56 feet from Tuggle’s residence and he sought to enjoin the County. In denying relief this Court announced certain principles which we think are applicable to the case under consideration. Among other things this Court said: “It is next contended that the County Court had no right to vacate a suburban highway which had been dedicated to the public, and that D. M. Tuggle and other abutting landowners had a vested interest in the matter because they had bought property relying upon the fact that the road in front of their property would always be a public road. If this were true, there could never be any change in an existing highway, because doubtless all abutting property owners would claim that they bought their property relying upon the fact that it was abutting upon a public easement, and that the road could never be discontinued or changed”. “In this connection it may be said that there can be no phange of an existing highway that does not cause some private inconvenience, and, in that sense, injury to the abutting property owners, who have adapted themselves to the existing order of things and have purchased property on a highway which they believed would never be changed.” It seems to us that there is a significant parallel between the position in which Tuggle found himself and the position appellees now find themselves in the case under consideration. In the Tuggle case the Court also said: “Of course, the County Court should not change or alter the public highway unless the public convenience or necessity requires such change.” The same thing might be said in connection with the case under consideration, but appellees make no contention that the Commission, in constructing Interstate Highway No. 30,. or in providing access road connections, acted unreasonably.

Another case which clearly pronounces the well established principle that private enterprise must yield to the public welfare and convenience is the City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187. There appellee owned a tourist and trailer camp near the middle of a block 597 feet long on Midland Avenue in the City of Port Smith. The avenue was being widened and otherwise altered by the City Commissioners in such a way that, concededly, it would hurt appellee’s business and also lessen the value of his property. On that ground he successfully sought the aid of the Chancery Court to enjoin the City. The City appealed and this Court, in reversing the trial court, among other things said: “We think the learned trial court erred in so holding ... it may be true that appellee’s property will be adversely affected, but no more so than any other property similarly situated . . .” “There can be no doubt that the city has the power and the duty to make reasonable provision for the safety of persons and property using its streets by the enactment of ordinances, resolutions or by-laws looking to that end, and the city council or commission, or other municipal authorities have a wide discretion on such matters.”

There are many decisions from other jurisdictions, while not exactly in point with the issue and facts presented in the case under consideration which announce certain applicable principles sustaining the conclusions heretofore announced. We will now examine a few of these decisions.

In the case of Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So. 2d 839, the facts are very similar to the facts in this case. There the State Highway Commission condemned a strip of land owned by Mrs. Muse lying along the west side of U. S. Highway 51, North, consisting of .61 acres. Previously the Commission had already acquired a right-of-way and was in the process of constructing a four-lane highway. One strip of the pavement carried the southbound traffic and the other strip carried the northbound traffic being divided by a neutral zone or median strip, 30 to 40 feet side. If the highway had been completed under that plan, with no outside access roads added, the owners of appellant’s property would have had direct access to the southbound lane but would have been required to drive southwardly a short distance before they could have entered the northbound traffic lane. When a strip in front of appellant’s house was condemned for the purpose of constructing an access road a claim was made for damages not only for the land taken but because the right of access had been destroyed or greatly impaired. The trial court refused to allow damages for the loss or impairment of access and appellant appealed. In affirming the trial court the Supreme Court held, among other things, that appellant had not been damaged by the taking of the right of direct access to the inside lane or main traveled portion of said highway by the construction of the outside lanes to said highway to which the appellant had access. The court quoted with approval the following: “Private rights relative to highways may be regulated in many ways under the police power and that without compensation.” The Court also said: “It is undoubtedly true that the abutting landowner on a conventional public highway has a special right of access and user in the highway; and that right is a property right which cannot be damaged or taken from him without due compensation. The right of access is appurtenant to his land, and to destroy that right is to damage his property . . . But there is also a coexistent right belonging to the public, to use and improve the highway for the purpose of travel; ancl the owner of the abutting land has no absolute right, as against the public, to insist that the adjacent highway always remains available for his use in the same manner and to the same extent as when it was constructed ... As the problem of regulating motor vehicle traffic on the highways has become more and more complex, new standards of design for highway construction have been adopted by the highway authorities to reduce the hazards of travel and expedite the flow of traffic . . . Such rules and regulations have been recognized by all of the authorities as a valid exercise of the police power.” (Emphasis supplied).

In the case of Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N. W. 2d 755, the highway was changed so as to affect adversely the use of a residence and a filling station owned by Smith. The result of the change was that less traffic would patronize the filling station. The Supreme Court in disallowing certain elements of damage claimed by Smith had this to say: “Insofar as the regulations may divert some traffic (mainly eastbound) from defendant’s filling station they have no legal cause for complaint. They have no vested right to the continuance of existing traffic past their establishment.” (Emphasis supplied).

In the case of The State ex rel Merritt et al v. Linzell, Dir., Department of Highways of Ohio, 163 Ohio St. 97, 126 N. E. 2d 53, the question for decision as stated by the Court was: Where property abuts on an existing state highway and such highway is relocated so that the property does not abut on the new highway but continues to abut on the old original highway which connects with the new highway, is there a taking of any property rights of such property owner? Before answering that question the Court said: ‘ ‘ The facts in the instant case do not show the impairment of the use of the highway on which relators’ property abuts but only the opening of the new highway which diverts public travel from the old highway. ’ ’ Then, the Court, in answering the above question in the negative made this statement: “It is now an established doctrine in most jurisdictions that such an owner has no right to the continuation or maintenance of the flow of traffic past his property. The diminution in the value of land occasioned by a public improvement that diverts the main flow of traffic from in front of one’s premises is noncompensahle '. . . citing cases . . . The change in traffic flow in such a case is the result of a lawful act, and is not the taking or damaging of a property right.” (Emphasis supplied). In this same case the Court quoted with approval the following: “ ‘Before a party is entitled to recover, it must be determined that the thing taken for the public use, for which he asks compensation, is his private property.’ ”

The case of The State of Washington v. Helene M. Fox, et al, 53 Wash. 2d 216, 332 P. 2d 943, strongly supports the views above expressed and, to our minds, refutes appellee’s contention that the theory of police regulation has no part in the case under consideration because there was an actual taking of land. In the cited case appellee’s damages were predicated on an actual taking of land and also upon the diminution of accessibility. The Court, in stating appellee’s position said: “The crux of respondents’ argument is: The State cannot extract one feature of an overall plan and label it an exercise of the police power in order to reduce the compensation payable to the property owner in a condemnation proceeding.” Since the Court did not go along with the above argument we take it to mean that there was no inconsistency in allowing the State to take a parcel of land by eminent domain and at the same time apply the doctrine of the police power in regulating traffic upon the highway after it is constructed. It is significant here also that the Court in this case made the following statement after first approving the introduction of testimony regarding the limited access facility: “This does not mean, however, that respondents have a property right in the continuance or maintenance of a flow of traffic past their property, y y

In the case of Cecil W. Blumenstein v. City of Long Beach, 143 Cal. App. 2d 264, 299 P. 2d 347, appellant sought “to recover compensation for damage suffered by lot due to street reconstruction which separated lot from street.” The trial court gave appellee damages based on diversion of traffic, although appellant had moved that such testimony should not be considered. In speaking of this motion the Court said: “The Motion was based on the admission by the witness under cross-examination that he had let factors influence his determination of the decline in market value such as a presumed future loss of vehicular parking in front of subject property . . . and a diminution, diversion and rearrangement of traffic in front of subject property because of the construction of the improvement.” The Court, in disapproving the admissibility of that kind of testimony, stated: “Appellate decisions of this state have made it clear that damages resulting from mere diversion of traffic or inconvenience resulting from circuity of travel in reaching the subject property are noncompensable. ”

Applying the principles so clearly announced in the preceding cases, the only logical deduction is that a loss occasioned by the diversion of traffic is not compensable. It is not denied in this case that Lessee’s major loss of business was the result of a diversion of through traffic on Strip No. 1 from its filling station after the limited access highway was completed. For us to hold that such loss by Lessee is compensable would amount to erecting an almost intolerable barrier in the way of further construction of super-highways. The right here claimed by Lessee is not to be confused with its right of ingress and egress. The latter right, as heretofore pointed out in previous citations, is a property right which is compensable, but Lessee has that right undiminished by virtue of the access road in front of its station.

We have carefully considered the numerous decisions cited by appellees and find that they deal with the right of ingress and egress and not with losses resulting from a diversion of traffic. We think it would serve no useful purpose to discuss those cases separately, but would only unduly extend this opinion.

What we have heretofore said does not mean, however, that Lessor and Lessee are not entitled to damages in some amount. Since practically all of appellees’ testimony to show damages was directed to the amount of loss occasioned by the diversion of traffic and since, as previously pointed out, such testimony was incompetent, the result is that there is no substantial evidence to support the judgment in favor of Lessor in the amount of $9,000.00 or the judgment in favor of Lessee in the amount of $30,000.00. There is, however, in the record testimony by the Commission’s own witness, Hamilton, to sustain a judgment in the amount of $6,159.00 for Lessor and a judgment in the amount of $8,790.00 for Lessee. We find no evidence in the record to support a judgment in favor of either Lessor or Lessee in excess of the amounts last mentioned.

Since appellees do not contend that the trial court committed any error against their interest in the trial below, and since the cause appears to have been fully developed, the judgments must be modified as heretofore mentioned, and, as so modified, they are affirmed.

Modified and affirmed.

Johnson, J., dissents.

McFaddin, J., concurs.

Jim Johnson, Associate Justice,

dissenting. On November 22, 1954, the appellee, Sallie Harvey Bingham, purchased 5.6 acres having a frontage of 823 feet on Highway 67-70, which served both east and west bound traffic between Little Rock and Benton. She leased the property to appellee, Ark-La-Tex Oil Company, at a monthly rental of $100 for a primary term of ten years commencing October 1, 1955, with an option on the part of the lessee to renew for two additional periods of five years each. Ark-La-Tex secured a permit from appellant to construct a service station on 1 % acres of the leased land and completed such construction on October 5, 1955, at a cost of $17,171.52. Construction of a restaurant or motel was contemplated by the lessee on the remainder of the leased premises. The service station of Ark-La-Tex sold an average of 37,000 gallons of gasoline a month. On April 11, 1958, under the power of eminent domain, appellant took a strip of land 50 feet wide and 823 feet long across the front of appellees’ property where it bordered on Highway 67-70, and also took the access the remainder of such property had enjoyed to the highway. The taking of the land is authorized by Act 419 of 1953, and the taking of the right of access or ingress and egress to, from or across the highway to and from the remainder of the appellees’ land is authorized by Act 383 of 1953.

Witnesses called by the appellee, Sallie Harvey Bingham, testified that she, as the owner of the fee, was entitled to recover damages in a sum varying between $10,-000 and $17,250, and witnesses called by the appellee, Ark-La-Tex, testified that it, as the holder of the leasehold, was entitled to recover damages from $55,000 to $77,700. On the other hand, the witnesses called by the appellant estimated that the damages to the interest of appellee, Sallie Harvey Bingham, ranged from a low of $2,300 to a high of $6,159, and the damages to the interest of the appellee, Ark-La-Tex ranged from a minimum of $5,200 to a maximum of $8,790. A jury question therefore was presented and the jury returned a verdict in the sum of $9,000 for the appellee, Sallie Harvey Bingham, and in the sum of $30,000 for the appellee, Ark-La-Tex. At the time of taking the appellant deposited $6,500 for the benefit of appellee, Sallie Harvey Bingham.

The disparity between the estimates of damages to which the witnesses for the respective parties testified springs from the fact that the witnesses for appellant specifically excluded from their estimate any amount of damage attributable to the deprivation of the access which the property of the appellees possessed to and from the existing highway prior to the taking.

The question posed is: Is the taking from property abutting a highway the right of access to such highway compensable?

Section 22, Article II of the Constitution of this State specifically and unequivocally states that private property shall not be taken, appropriated or damaged for public use without just compensation therefor. An easement of access is a valuable property right and when such easement is destroyed or damaged for public use, the Constitution directs that payment be made therefor.

The easement of access which the owner of property has is not the mere right of going out from his place of business onto the highway and returning therefrom to his own land, but is the convenience in the use of his property with respect to the rest of the world. If the landowner is a merchant, a hotel keeper or a restaurant owner, his easement of access is commensurate with the uses to which his property is devoted. The right of access includes the opportunity for a man’s customers to come to his place of business without unreasonable hindrance or interruption. A property devoted to business is of little value when business is turned away by obstructions or barriers or denial of ingress and egress. Reining v. New York, L. & W. Ry. Co., 13 N. Y. S. 238, 240; 10 McQuillin Municipal Corporations 671, Third Edition.

In Campbell v. Arkansas State Highway Commission, 183 Ark. 780, 38 S. W. 2d 753, this Court readily held:

“Under our decisions, the owner of property abutting upon a street or highway has an easement in such street or highivay for the purpose of ingress and egress which attaches to his property, and in which he has a right of property as fully as in the lot itself; and any subsequent act by which that easement is substantially impaired for the benefit of the public is a damage to the lot itself within the meaning of the constitutional provision for which the owner is entitled to compensation. The reason is that its easement in the street or highway is incident to the lot itself, and any damage, whether by destruction, or impairment, is a damage to the property owner and independent of any damage sustained by the public generally.” (Emphasis supplied).

That decision has never been overturned; indeed, it cannot be cast aside without emasculating one of the most important, inviolate and fundamental provisions of the Constitution.

The logic of the Campbell decision, supra, was approved by the Court in Arkansas State Highway Commission v. Kincannon, 193 Ark. 450, 100 S. W. 2d 969, when it said:

“When property is damaged, its value is reduced, and this reduction in value is, to the extent thereof, the taking of the property. So that the owner whose property has been damaged, but not physically taken, has the same right to demand compensation for his damages as has the owner whose property has been occupied and taken from his possession.” (Emphasis supplied).

This Court in various eminent domain cases has approved damages for the tailing of the fee simple title to property, Arkansas State Highway Comm. v. Carder, 228 Ark. 8, 305 S. W. 2d 330; has endorsed compensation for severance damages, Arkansas State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S. W. 2d 791; has affirmed awards for diminution in value due to a change in grade of a highway, Hot Spring County v. Bowman, The Law Reporter, Vol. 104, No. 12, page 400; and has approved as an element of damage “the added inconvenience and hazard, if any, of occupying and using said lands or any part thereof caused by the construction of the new highway”, Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051. (Emphasis supplied). It is hardly debatable that the right of access, which we have held to be a property right, can he taken by eminent domain without the payment of damages.

It has always been the rule that the measure of damages, if any, is the difference between the fair market value of the lands immediately before the construction of the highway and the fair market value thereof immediately after such construction. Herndon v. Pulaski County, supra. Further, every element that can fairly enter into the question of market value and which a business man of ordinary prudence would consider before purchasing the property should be considered by the jury in arriving at the difference between the value of the property before and after the taking or damage to it. Kirk v. Pulaski Road Imp. Dist. No. 10, 172 Ark. 1031, 291 S. W. 793; Arkansas State Highway Comm. v. Speck, The Law Reporter, Yol. 105, No. 7, page 272, 281. No one could say that a private individual would ignore the right of access or lack of it in reaching a decision as to whether or not he would buy or would pay a certain sum for the property of the appellees. The kind and extent of access or the lack of it is always considered by a man of ordinary prudence in deciding whether or not he will purchase residential, commercial or rural real estate. The appellant erred in directing its witnesses to exclude right of access or lack of it as an element in valuing appellees ’ property immediately before and immediately after the taking, and in such regard attempted to take property of the appellees without compensation in violation of the Constitution. That flagrant abuse cannot and will not be tolerated. If in the construction of the interstate highway system grades are changed, property is severed, inconvenience is imposed, hazard is created, or access is diminished or destroyed, the owner of the property so affected is entitled to compensation. To do less would undermine the right of ownership of property and destroy the very foundation of our government. To say that the cost of compensating for such property right would be an excessive burden on the appellant is beside the point. If this property right can be taken without compensation, then all property rights can be taken without compensation, and private property rights no longer exist. The appellant without any reservation or condition whatever definitely took all right of access which the property of the appellees enjoyed to the public way. Appellant stated in its brief and in oral argument that the appellees had access to the public way by a circuitous route over a surface road, but the record does not substantiate these statements, and we must be guided by what the appellant actually did and how such action affected the property rights of the appellees. The Declaration of Taking reads:

. . the estate to be taken for public use is the full fee simple absolute title together with any and all rights or easements of existing, future, or potential common law or statutory rights of access, or ingress and egress to, from or across this facility to or from abutting and adjoining land.”

Since the Declaration of Taking sets forth that all rights of ingress and egress are taken, and since this Court has consistently held that the right of ingress and egress is a property right, and since the Constitution directs that private property shall not be taken or damaged without the payment of compensation therefor, the judgment of the court below should be affirmed.

Numerous cases from various foreign jurisdictions were cited in the respective briefs of opposing counsel. I have carefully examined these decisions but in view of our own Constitution and our own prior holdings I deem it unnecessary to extend this opinion further by commenting upon them.

For the reasons stated above, I respectfully dissent.


author: Sam Robinson, Associate Justice.

text:
    Godwin v. Godwin.
    5-2094
    333 S. W. 2d 493
    Opinion delivered March 28, 1960.

      David B. Whittington, Thomas, Phillips $ Wright, for appellant.

      Walter J. Hebert, C. A. Stanfield, for appellee.
   Sam Robinson, Associate Justice.

Appellee, J. A. Godwin, filed suit for divorce January 13, 1959, in Garland Chancery Court, alleging general indignities. Appellant answered by general denial and by way of cross complaint asked that she be granted a divorce and also for dower in appellee’s property, for alimony, attorneys’ fees and suit money. In his answer to the cross complaint appellee alleged that the parties had entered into a property settlement.

The court granted appellant a divorce and dower in appellee’s personal property but denied her claim for dower in or reconveyance of certain real property owned by appellee. The court found that there had been a property settlement as to the real property and that appellee had advanced and furnished to appellant money and material and had performed services in connection with payment for certain real property owned solely by appellant, the value of which exceeded any dower interest appellant might have in any property owned by appellee.

The question presented on appeal is whether the chancellor’s findings as to the property settlement and dower rights of appellant are correct.

The parties were married in 1936. They built a house in Hot Springs on a lot owned by appellant. Appellee testified he contributed over $2,000 to improvements made on this property. Later this property was exchanged for a 79 acre tract located outside Hot Springs, title to which was taken solely in appellant’s name. Appellee showed he contributed money, materials and services to improvements on this property, and that he made a contribution of $350 toward appellant’s purchase of an additional tract of land.

In 1954 appellant deeded 16.63 acres of the 79 acre tract to appellee. It was this transaction which the chancellor found to be a settlement of the property rights of the parties. Appellee testified this deed was made by appellant voluntarily and that he understood it constituted a settlement of their rights. Unless it is shown there was a fraudulent inducement to the making of this agreement, it should not be modified by judicial action. Tennison v. Tennison, 216 Ark. 748, 227 S. W. 2d 138.

We cannot say that the chancellor’s findings are not supported by a preponderance of the evidence.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Smith v. Tipps Engineering & Supply Co.
    5-2053
    333 S. W. 2d 483
    Opinion delivered March 28, 1960.

      Boyce B. Love, for appellant.

      E. J. Butler, Jack P. West, for appellee.
   Jim Johnson, Associate Justice.

This is a case of first impression in Arkansas. It involves an interpretation of part of Act 315 of 1941, ‘ ‘ The Uniform Contribution Among Tortfeasors Act.”

In the summer of 1956, The Tipps Engineering & Supply Company, appellee, constructed a grain elevator near Dumas, Arkansas, for T. F. Shea, Jr. and George Cousins, d/b/a Shea and Cousins Grain Elevator. In the course of the construction, appellee installed’ an overhead truck hoist in the elevator which was for the purpose of lifting the front ends of trucks to facilitate unloading.

In December 1957, Dan Davis, a negro farmhand who worked for one of the customers of the elevator was standing near the hoist. As a truck which was being unloaded at the time drove away from the hoist, the hoist fell and struck Dan Davis, killing him almost instantly.

Thereafter, Clay Smith, Jr., appellant, was appointed Administrator of the estate of Dan Davis, and entered into a settlement with the Shea and Cousins Elevator and their insurer for the sum of $12,500, executing to them a release of liability. Also, a “friendly suit” was entered into and a judgment placed of record.

This action was then filed by the appellant against The Tipps Engineering & Supply Company alleging that faulty installation of the hoist was the cause of the death and asking for damages in the amount of $39,100. Appellee then filed an Answer and Motion to Dismiss, relying on the “friendly suit” as a bar to any further action based on the death of Dan Davis. After hearing argument from counsel, the Judge granted the motion and dismissed the Complaint.

For reversal, appellant relies upon the following point: "That, as a matter of law, the trial court erred in dismissing the Complaint of appellant.”

The sole question in this case appears to be whether the "friendly suit” between Clay Smith, Jr., Administrator of the Estate of Dan Davis, appellant herein, and the Shea and Cousins Grain Elevator, is a bar to this action by appellant against The Tipps Engineering & Supply Company for damages arising out of the same cause of action. Appellant contends that the "friendly suit” was only a settlement of the claim against Shea and Cousins and that any claim the Administrator ever had against other parties for these damages is still valid and actionable.

The intention of the parties to the “friendly suit” must be ascertained by looking to the language contained in the Release and Subrogation Agreement executed by them which states:

"We hereby covenant that no release has been or will be given to or settlement or compromise made with any third party who may be liable for any damages to us and we in consideration of the above payment made by Thomas Shea and George Cousins doing business as Shea & Cousins Grain Elevator and the General Accident Fire & Life Assurance Corporation, their Insurance Carrier, hereby subrogate to them all rights and causes of action we may have against any person, persons, or corporations whomsoever for damages arising out of the above accident and we authorize Thomas Shea and George Cousins d/b/a Shea & Cousins Grain Elevator and the General Accident Fire & Life Assurance Corporation to sue in our names but at the cost of Thomas Shea and George Cousins d/b/a Shea & Cousins Grain Elevator and the General Accident Fire & Life Assurance Corporation and we hereby pledge full cooperation in such action. ’ ’

That the suit filed by appellant against Shea & Cousins was only a "friendly suit” is evident from the wording of the judgment rendered therein which states:

“The defendants have offered and the plaintiff has agreed to accept the sum of $12,500, and this matter is submitted to the court for final approval and rendering of a judgment. The court, being well and sufficiently advised, finds that said settlement is fair and reasonable, and that the said judgment is to be paid in full settlement and satisfaction of any and all claims growing out of the death of the said Dan Davis.”

After exhaustive research we were able to find only two cases in point. Allbright Bros., Contractors, Inc., and for the Use and Benefit of National Surety Corporation v. Hull-Dobbs Co., et al, 209 Fed. 2d 103 (1953), was a Sixth Circuit case where an Arkansas tortfeasor settled with an injured party, entered a “friendly suit” in the state court that recited that the judgment was in full settlement of all claims accruing to the injured party, paid the judgment and then went into Federal Court in Tennessee to recover contribution against joint tortfeasors. The parties agreed that the Arkansas Joint Tortfeasor statutes controlled, and the alleged joint tortfeasors moved to dismiss the complaint on the ground that since the “friendly suit” did not mention joint tortfeasors, their common liability has not been discharged and, therefore, there was no right of contribution. The district court dismissed and the Court of Appeals affirmed, stating:

“It is the contention of appellant that since the settlements and judgments were in full and complete settlement and satisfaction of any and all claims of the injured parties and all damages of every kind and description arising out of the accident, such settlements and judgments extinguished the liability of appellees, as joint tortfeasors, to the injured parties. The district court declared, however, that the settlements and judgments did not purport to be for the benefit of appellees, and did not release them from a liability with which they were not charged in the suit. The Arkansas Joint Tortfeasor Statute, in so far as here applicable, provides:
“ ‘A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than Ms pro rata share thereof.
“ ‘A joint tortfeasor who enters into- a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose' liability to the injured person is not extinguished by the settlement.
# * •
“ ‘Nothing in this act shall be construed to' affect the several joint tortfeasors’ common law liability to have judgment recovered and payment made from them individually by the injured person for the whole injury; but the recovery of a judgment by the injured! person, against one joint tortfeasor does not discharge the o>ther joint tortfeasor.
# * *
“ ‘A release by the injured person of one joint tortfeasor, whether before or after judgment,, does not discharge the other tortfeasors unless the release so- provides . . . Sections 34-1002, 1003, and 100.4 ©f the Arkansas Statutes of 1947, Annotated.’
‘ ‘ The release of appellant by the injured parties did not, under the foregoing statutory provisions, discharge appellees, since it did not therein provide for their release. They were not named in the release and settlement agreements or in the judgments entered thereon; and a release of one joint tortfeasor does not discharge another tortfeasor not named therein. See Raughley v. Delatoare Coach Co., Del. Super., 91 A. 2d 245.”

After careful consideration, we agree with the holding in the Allbright case, supra, that appellee’s liability to appellant could not have been released by the “friendly suit” against Shea & Cousins as it did not mention joint tortfeasors.

Since the applicable provisions of the Arkansas statutes are set out above in the quote from the AUbright case, they will not be set out again. However, it seems appropriate to point out the last phrase in Sec. 34-1003 of Ark. Stats. Ann. (1947): “but the recovery of a judgment by the injured person against one joint tortfeasor does not discharge the other joint tortfeasor.” This phrase would appear, on its face, to be sufficient to provide a basis for a rendition of judgment in this case for the appellant. We find that this identical language has been construed in its broadest sense in Hackett v. Hyson, 72 R. I. 132, 48 A. 2d 353, 166 A. L. R. 1096, where the Rhode Island Court said that this provision intended the inclusion of an actual recovery, payment, and satisfaction of a judgment. In other words, neither or all of these things would discharge a joint tortfeasor. That Court, with which we agree, said that this provision of the Uniform Contribution Among Tortfeasors Act was intended to reverse the common-law rule which discharged all tortfeasors jointly liable for the same tort, upon the satisfaction of a judgment by one of their number.

In the Haclcett case there was a contested suit, and the Rhode Island Court decided that the judgment rendered therein did not discharge joint tortfeasors who were not parties. In the case at bar there is not a contested suit. Here, there was only an out of court settlement which was placed on the court records for the sole purpose of making the settlement more binding. There were minors involved, and, of course, all possible precautions must be taken in settling with minors if the settlement is to be safe from attack. The same situation was before the Court of Appeals in the Allbright case, supra, and they said that the settlement judgment there did not discharge joint tortfeasors.

The statutory provisions quoted above are all part of the Uniform Contribution Among Tortfeasors Act, which Arkansas adopted in 1941 as Act No. 315, and, as do all uniform acts, the Act contains a provision calling for uniformity of interpretation and construction.

Following this rule, the order of the trial court dismissing the complaint is reversed and the cause is remanded for trial on its merits. We do point out, however, that if judgment is obtained against appellee, appellee will be entitled to credit thereon in an amount equal to that amount heretofore recovered by appellant from other tortfeasors. See: Giem v. Williams, Administratrix, 215 Ark. 705, 222 S. W. 2d 800.

Reversed and remanded.

Robinson, J., concurs.