author: Ed. F. McFaddin, Associate Justice.

text:
    Board of Directors, St. Francis Levee District v. Morledge.
    5-1949—1954
    332 S. W. 2d 822
    Opinion delivered March 14, 1960.

      F. N. Burke, Jr., Daggett $ Daggett, for appellant.

      Carroll C. Cannon, for Appellee Gatling, Shaver $ Shaver, for Appellee Morledge, et al., Giles Dearing for Appellee Thomas.
   Ed. F. McFaddin, Associate Justice.

These appeals stem from condemnation proceedings instituted by the Board of Directors of the St. Francis Levee District against the appellee landowners in Cross County and St. Francis County. The Levee District is condemning a right of way approximately 1,400 feet wide for a new river channel. The cut for the new river will he 400 feet wide at the top and 180 feet at the bottom, and will be constructed on a 3 to 1 slope. The depth of the cut for the river will vary from 24 feet to 45 feet.

When the Levee District filed the condemnation cases, its appraisers, proceeding under Act No. 177 of 1945 (<§> 35-1102 et seq. Ark. Stats.) and Act No. 249 of 1949 (§ 21-805 Ark. Stats.), proceeded to make appraisals. The landowners excepted to the appraisals, claimed that all elements of damages had not been considered, and asked much larger damages. As a result of the trial in the Chancery Court, the landowners received larger damages; and it is from these decrees that there are these appeals. Below we tabulate the name of the landowner, the amount fixed by the appraisers, and the amount as finally awarded each landowner by the Chancery Court:

Appraiser’s Amount Awarded

Landowner Figures by Chancery Court

Morledge $16,126.50 $102,450.00

Thomas 9,651.63 57,700.00

Edgar 4,755.00 45,085.00

Dillon 12,629.75 36,705.00

Gatling 20,161.88 32,089.00

The trial in the Chancery Court consumed more than nine days, and the Chancellor made six visits of inspection to the premises. The cases of Morledge, Thomas, Edgar, and Dillon were tried on the same theory of damages ; but the District and Gatling stipulated for a trial on a different theory of damages. So it became necessary for the Chancellor to make separate findings in the Gatling cases. We consider first the cases of Morledge, Thomas, Edgar, and Dillon.

The learned Chancellor reduced his findings to writing ; and they are so clear that we copy excerpts:

CHANCELLOR’S FINDINGS IN THE CASES OF MORLEDGE, THOMAS, EDGAR, AND DILLON.

“These causes originated in the Circuit Courts of Cross and St. Francis Counties and were transferred to this court when the defendant landowners raised the question as to the right of the District to condemn their lands under the power of eminent domain. This court having thus obtained jurisdiction and having found that the District had the legal right to condemn and acquire the lands as a right of way for levee purposes must needs retain jurisdiction for any and all purposes. The Chancellor must now constitute himself a jury for the purpose of assessing damages, if any be due, for the taking of private property for a public purpose. These cases were consolidated by agreement for the purpose of trial. The factual background in each case is practically and basically the same though there are some differences in the pleadings in the case of the District v. Thomas Gatling, et al., which necessitate separate findings in that case.

“All of the lands involved are located in what is called ‘Clark Corner Cutoff’. This is one of the segments of the District’s plan of levee and drainage improvements in the St. Francis and Mississippi River area. The District has proceeded in the condemnation proceedings under the provision of Act 249 of the Acts of the Legislature for the year 1949. The Chancellor has previously held that there had been a substantial compliance with the provisions of this Act on the part of the District and that it had by appropriate action become the sponsor of the project known as ‘THE ST. FRANCIS RIVER VALLEY PROJECT’, which is now being constructed by the U. S. (Government pursuant to the authority of the Acts of Congress. The full details of the plan or project are contained and set forth in House Document No. 132, 81st Congress, First Session. A copy of said document forms a part of the record in the cases. * * *

“The overall purpose of the project is to provide facilities to carry off and contain all surface waters falling within an area including Southeast Missouri and Northeast Arkansas within the St. Francis and Mississippi watershed. The main purpose of the plan is to prevent any flood waters (either head water or back water) from the Mississippi River or the St. Francis River from reaching any part of the vast area in Missouri and Arkansas lying east of Crowley’s Ridge on the west and the Mississippi River on the East except within a narrow floodway along the east side of Crowley’s Ridge. "When the project is completed and the improvements made it will protect from flood waters from either river all of the State of Missouri and Arkansas which lie in the St. Francis River watershed, except for the narrow flood-way. The project plans contemplate that the lands belonging to defendants will be located within this narrow floodway * * * This floodway will be contained on the west by Crowley’s Ridge and on the east by a levee to be constructed under the plans. The effect of the project will be to provide for two distinct drainage districts in the valley where only one has existed previously * # *

“Construction, according to the plan, began several years ago and the new levee to form the east boundary of the floodway has been completed from the Mississippi to Madison, ■ Arkansas, some few miles to the south of Clark’s Corner Cutoff. This levee will be built to grade through the Clark Corner Cutoff area though the exact location in the area has not been definitely determined at this time. The new river through the area is now under construction.
“In the Clark Corner Cutoff segment with which we are concerned St. Francis River makes a wide bend of some nine miles and flows to the east of all the lands involved in the action. Under the plans which are now in the process of being carried out a new river will be cut almost straight across this bend and through the lands of defendants. This new river will be 400 feet or more wide at the top and 180 feet or more at the bottom and will be constructed on a 3 to 1 slope. The depth of the cut for the river will vary from 45 feet to 24 feet toward the south end. The district will utilize Sand Slough and Horse Shoe Lake as a part of the cut for the new river and the distance around the bend will be shortened some four miles or more.
“The new levee will be built across the rivér so as to create a dam at the north end of the aréa and also at the south end of the area and will cut off the flow of water through the old channel of the river and force the flow into the new river. The new river will bisect the lands of the defendants so that some of the farms will be .divided by the new river. While the exact location of the levee to form the floodway has not been definitely determined at the time of trial, it must necessarily be located between the old river and the new river and most, if not all, of the lands of the parties will he placed in the floodway to be created between Crowley’s Ridge and the new levee and the lands must bear this additional servitude. From the maps and plats filed with the testimony, it appears that at this point this floodway will be from two to three miles wide.
“In each case the District filed its petition for condemnation and in each case the appraisers made and filed their award of damages. In each instance the appraisers made the award of damages for the value of the lands actually taken for agricultural purposes only and made no award for any other damage of any kind which might result from the condemnation. Exceptions were duly filed to the awards made by the appraisers and in the pleadings the defendants alleged and set forth in detail their claims for damages for the taking and damaging of their lands.
“The record in the case discloses that defendant Morledge operates his farm as one unit consisting of 1,018 acres of cultivated land and 458 acres of woodland. The farm is well improved and the improvements include a cotton gin, warehouse, store building, two large residence buildings, and many barns and tenant houses. A large lake of approximately 26 acres of water is located on the right of way taken and it has been used to irrigate some 300 acres or more of crop land and furnish water for a valuable irrigation system. The new river will destroy the lake and will divide this farm into almost equal parts some parts of which will be isolated by the new river. The headquarters (gin, store, etc.) will be located on the west side of the new river. The actual land condemned consists of 56.11 acres of cultivated farm land and 88.48 acres of woodland including the lake.
“The Dillon farm consists of 310 acres of crop land and 161 acres of woodland and pasture. The new river will divide the farm so as to isolate approximately 27 acres from the other lands in the farm. The action condemns 54.86 acres of crop land and 30.70 acres of woodland and pasture land.
“The Edgars farm consists of 441 acres of cultivated land and 334 acres of woodland. The District by this action condemns 21.39 acres of crop land and 12.72 acres of woodland. These lands are located toward the south part of the area and the lands which remain after the condemnation will all lie east and south of the new river.
“The Thomas farm consists of approximately 800 acres of land of which approximately 600 acres are productive crop land and 200 acres are wooded lands and pasture lands. The Thomas lands lie in the West and southernmost part of the bend and the outlet for the new river is located on his land. The District condemns 37.87 acres of crop land, 3.98 acres of pasture land and 44.79 acres of wooded land. Practically all the remaining land in the farm lies between the new river and Crowley’s Eidge.
“All of these farms lie in the area which will comprise the floodway to be constructed. The District will have constructed two bridges across the new river, one at the north end of the area and one near the south end.
“Nine full days were consumed in the actual trial of the causes and many witnesses have testified at great length. The record with the testimony and exhibits is quite voluminous. There are many conflicts in the testimony which cannot be reconciled. The Engineers who appear as witnesses for both sides of the litigation are truthful men of excellent training and long years of experience in their field, yet there is much of their testimony which is conflicting. The experts called by defendants say that the effect of the project when completed will be of great benefit to those lands in the watershed which lie to the east of the new levee to be constructed, but that the lands belonging to the defendants which are involved in this action will be greatly damaged and the value of defendants’ land lying along the new river and within the floodway to be constructed will be greatly diminished if not destroyed. The engineers for the District testify that little if any damage will result to defendants’ lands and that any such damage at this time and stage of construction could not be ascertained and would, therefore, be a mere speculation. There is much testimony as to the value of the lands actually taken, as well as to the value of the lands which remain after the taking.
“The testimony of defendants and their witnesses points out many elements of damage which will result from the taking that have not been taken into consideration by the appraisers and for which no compensation has been allowed by them. To enumerate these alleged elements of damage in these findings would extend the length unreasonably. The testimony is to the effect that the market value of the lands which remain to defendants has been diminished by from one-third to one-half of its value by reason of the action brought by the District. There is testimony to the effect that the lands themselves, as well as the crops to be planted thereon, have lost their value as security for loan purposes because of plaintiff’s condemnation proceedings.
“In addition to the record testimony the Chancellor, at the request of the parties, has inspected the premises and lands affected on six different occasions during the pendency of the action. The Chancellor has covered the entire area on foot and has inspected that part of the construction of the ditch or new river which has been affected, as well as to note the type and condition of the land and the improvements thereon. The information and knowledge acquired by these visitations has been valuable in weighing the testimony and in arriving at a conclusion on the facts in the case.
“The court has concluded that in addition to the value of the lands taken and the damages thus sustained, the defendants have been and will be damaged by reason of the levee works constructed and to be constructed to the remaining part of their farms and that the awards of damages made by the appraisers will not adequately compensate these defendants for the value of the lands actually taken and for the damages they have sustained.
‘ ‘ The Constitution of our State provides that no private property shall he taken, appropriated, or damaged for public use without just compensation therefor. It appears to the Chancellor to be the law in cases of this kind that when a part of a tract of land be taken for public use with no damage to the remainder, the market value of that part actually taken is the measure of damages. When a part of a tract of land be taken and damages result to the remainder, then the measure of damages is the difference in market value of the entire tract before and after the taking or damaging. Since the Chancellor has found that there are substantial damages resulting to the remainder of defendants’ lands after the taking, it becomes the duty of the court to ascertain the market value of the whole land or farms in each instance before the taking and to ascertain the market value of that portion remaining after the taking and the difference would be the amount of damages suffered by the defendants in this case.
“The District insists that the defendants should be limited in the award of damage to the market value of the lands actually taken and that any other damage, if any, would be speculative at this time and would be until the project or plan has been fully completed. The District points at Act 177 of the Legislature for the year 1945 and Act 249 for the year 1949, and to the recoverable damages therein enumerated as a limitation of damages which the courts can allow compensation for damages sustained in condemnation proceedings for levee purposes. However, the Chancellor finds, under the facts and circumstances attendant in this case the damages awarded by the appraisers who were supposedly proceeding under the above cited acts would not meet the Constitutional requirement, the provisions of said Acts, or adequately afford these defendants just compensation for the damages they have sustained.
“In the case of District v. George B. Morledge, et ux, the Chancellor finds that the farm before the taking had a market value of $421,800.00 and immediately after the taking the remaining portion of the farm had a market value of $319,350.00, a difference of $102,450.00, for which said defendants should have judgment.
“In the case of District v. Fred Thomas, et al., the court finds that immediately before the taking this farm had a value of $160,000.00 and after the taking the remaining portion had a value of $102,300.00, a difference of $57,-700.00, for which said defendants should have judgment.
“In the case of James T. Edgar, et ux, the farm immediately before the taking had a market value of $120,925.00 and after the taking the remaining portion had a market value of $75,840.00, a difference of $45,-085.00, for which said defendants should have judgment.
“In the case of John Dillon, et al., the Chancellor finds that the value of this farm before the taking had a market value of $85,550.00 and after the taking the remaining portion had a market value of $48,845.00, a difference of $36,705.00, for which said defendants should have judgment.
“The said judgments shall bear interest from the date of the filing of the petition for condemnation in each case at the rate of 6% per annum, and the costs of the proceedings shall go against the plaintiff District.
“The attorneys representing said defendants shall prepare a proper precedent in accordance with these findings and submit the same to counsel for approval as to form. * * *
“Dated 8/2/58 /s/ Ford Smith, Chancellor.”

OPINION OF THIS COURT

Chancery decrees were entered in each case in accordance with the findings of fact, as previously copied; and from such decrees the District brings this appeal, presenting a total of thirteen points, 11insofar as involve the claims of Morledge, Thomas, Edgar, and Dillon. We combine and discuss these points in three topic headings.

I. Constitutional Protection Afforded The Landowner. Article 2 § 22 of the Arkansas Constitution says: “* * * private property shall not be taken, appropriated or damaged for public use, without just compensation-therefor”. When the State, or any of its subdivisions, or any public utility, exercises the power of.eminent domain, then the owner of private property so taken, appropriated, or damaged for the public use, must receive just compensation therefor. The market value of property taken for public use is to be determined by .its availability for all valuable purposes. Gurdon & Ft. Smith Bd. Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019. The recovery is not only for the land taken, but also for the damages to the balance of the appellee’s land, if any, caused by the taking. Ft. Smith L. & T. Co. v. Schulte, 109 Ark. 575, 160 S. W. 855.

By a long line of decisions we have established that the determination of the damage, in cases like these, is to be measured by what the property was reasonably worth before the taxing, and what the remainder of the property is worth after the taking. As early as Little Rock Miss. River & Tex. Ry. v. Allen, 41 Ark. 431 (decided in 1883), we approved this statement of the law: ‘ ‘ The correct rule for measuring damages is to determine the value of the whole land without the railway at the time the 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”. There are many cases to like effect. We cite only a few: Newport Levee Dist. v. Price, 148 Ark. 122, 229 S. W. 12; Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051; Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706; Ark. State Highway Comm. v. Fox, 230 Ark. 287, 322 S. W. 2d 81. Tested by the language of the Constitution and our holdings in pursuance of it, it necessarily follows that the landowner is entitled to all the damages sustained because of the taking, and the Legislature has no power to specify a few items of damage and deprive the landowner of the other damages that he has sustained.

The appellant insists that the Legislature, by Act No. 177 of 1945 (§ 35-1101 Ark. Stats.), and.by Act No. 249 of 1949 (§ 21-805 Ark. Stats.), has named five items óf damage, in condemnation cases like those here involved, and that the landowner is limited to those five items of damage. The first four are stated in Act No. 177 of 1945 and are: (1) “fair market value of the land appropriated”; (2) “damage which the construction of the levee will cause by the obstruction of natural drainage”; (3) “inconvenience of passing over the levee, ditch, drain, or canal”; and (4) “the value of crop and houses on the right of way injured or destroyed”. The fifth element of damage is set out in Section 2 of Act No. 249 of 1949, and is: “ * * * damages shall "be paid for any easement or flowage right or increased use or servitude. * * * > >

We hold that the Legislature had the right to call the attention of the condemnor to these five elements of damage as particularly worthy of consideration; but that it was beyond the power of the Legislature to limit the landowner to these five elements of damage as mentioned in the two Acts. This holding has already been indicated in the case of Staub v. Mud Slough Drainage Dist., 216 Ark. 706, 227 S. W. 2d 140; and there is nothing in Gladish v. Drainage Dist., 217 Ark. 411, 230 S. W. 2d 490, or Person v. Miller Levee Dist., 218 Ark. 86, 237 S. W. 2d 38, which indicates to the contrary. The landowner is entitled to all the damages which may reasonably flow from the taking of his property; and the Chancery Court acted properly in ascertaining the total value of the landowners ’ property before the taking and the total value after the taking, in order to determine the damages.

II. Floodway Damages. This is the point that has given us the most serious concern. In offering evidence of the damages, the landowners (Morledge, Thomas, Edgar, and Dillon) showed by the plans of the Engineers, by the Congressional reports, and by various other matters of evidence, that the total overall plan of the St. Francis River Basin was: (a) to construct this new river channel through the lands of these parties; (b) to use Crowley’s Ridge as the west levee of the new channel; (c) to construct a new levee several miles east of the new channel; and (d) to have all of the lands in between Crowley’s Ridge and the new levee as the floodway of the St. Francis River Basin. The landowners insist that the all-over plan for the St. Francis River Basin is the construction of a floodway, and that the taking of the landowners’ property for the new channel of the St. Francis River is' the condemnation proceeding, at which time they must obtain all of the damages that will result, because the making of the new channel is the first step in the floodway damage which will inevitably follow.

The appellant Levee District insists that neither the location nor the height of the east levee has been determined.- Furthermore, the District contends that the new channel may be so satisfactory that no east levee will ever be built. Based on these and other contentions, the Levee District insists that the matter of floodway damages cannot be determined in this litigation because floodway damages will arise when, as, and if, the east levee is constructed ; and to support its contentions the District cites the following cases and texts; Sain v. Cypress Creelc Drainage Dist., 161 Ark. 529, 258 S. W. 637; Watson v. Harris, 214 Ark. 349, 216 S. W. 2d 784; Sponenbarger v. U. S., 21 F. Supp. 28, 101 F. 2d 506, 308 U. S. 256, 84 L. Ed. 230, 60 S. Ct. 225; Danforth v. U. S., 308 U. S. 271, 84 L. Ed. 240, 60 S. Ct. 231; Willink v. U. S., 240 U. S. 572, 60 L. Ed. 808, 36 S. Ct. 422; U. S. v. Dickinson, 152 F. 2d 865; Hempstead Warehouse v. U. S., 98 F. Supp. 572; 18 Am. Jur. p. 772 “Eminent Domain” § 144.

The Chancery Court agreed with the landowners and the award to each of them included floodway damages. Such ruling of the Chancery Court is challenged by the appellant. The opinion of the learned Chancellor, as heretofore copied, completely answers the contentions of the District:

Construction, according to the plan, began several years ago and the new levee to form the east boundary of the floodway has been completed from the Mississippi to Madison, Arkansas, some few miles to the south of Clark’s Corner Cutoff. This levee will be built to grade through the Clark Corner Cutoff area though the exact location in the area has not been definitely determined at this time. The new river through the area is now under construction. * * * From the maps and plats filed with the testimony, it appears at this point this floodway will be from two to three iniles wide. ’ ’

The foregoing excerpts from the Chancellor’s opinion show most clearly why the cases and authorities relied on by the appellant (as previously listed) are distinguishable, on the facts, from the case at bar. For instance, in the case of Sponenbarger v. U. S. (supra), the lands were along the Mississippi River and were inundated in excess of fifteen feet in the 1927 flood. Thereafter, Congréss adopted the so-called Jadwin Plan, whereby existing levees protecting the Sponenbarger lands were left at existing heights, but levees across the river were raised so that in case of flood the Sponenbarger land would, in effect, be a floodway; and the adoption of such plan was claimed to be a “taking” of the Sponenbarger land so as to subject the United States to liability for damages. The District Court held that there was no liability; the Court of Appeals reversed; and the United States Supreme Court agreed with tlm District Court that there was no liability. .But in the Sponenbarger case the United States Supreme Court listed and adopted two findings of the District Court which clearly differentiate the Sponenbarger case from the case at bar: (1) “ The United States has not caused any excessivé flood waters to be diverted from the Mississippi through the proposed Boeuf fuse plug (at Cypress.Creek), or floodway, and respondent’s property has not been subjected to any servitude from excessive flood waters which did not already exist before 1928”; and (2) “no work was ever commenced or done within the area of the proposed Boeuf flood-way; and the fuse plug heading into it was never established. This floodway as a whole has been abandoned, * * In the case at bar: (1) the basic plan is a diversion of water by a new channel through the lands of these landowners; and (2) the channel is constructed and the east levee has been built a short distance downstream from the' lands' herein. It would unduly prolong this opinion to discuss each case and textbook, cited by appellant; we conclude that none is in point to the case at bar.

There is detailed and voluminous testimony in this record about how many feet of water wall move down the new7 channel and why reservoir basins will be needed to take care of the overflow, and just how7 the backwater of the Mississippi River will cover some lands. One of the most essential points.in the whole plan is the flood-way. That floodwray damages ivere wdthin legislative contemplation is shown by Section 2 of Act 249 of 1949: * * and provided further damages shall be paid for any easement or flowage right, or increased use or servitude, on any lands by reason of increasing the amount or depth of water on same, regardless of whether said lands are' protected or unprotected by levees, and these damages shall be in addition to damages set out in said Act 177 of 1945”. See also Garland Levee Dist. v. Hutt, 207 Ark. 784, 183 S. W. 2d 296; and Watson v. Harris, 214 Ark. 349, 216 S. W. 2d 784.

In Drainage Dist. v. Haverstick, 186 Ark. 374, 53 S. W. 2d 589, we held that a drainage district which dammed two rivers and diverted their waters from their natural flow into an artificial floodway, thereby precipitating water upon the plaintiff’s land in increased volume, was liable for the damages caused thereby. In Little Rock & Ft. Smith Ry. Co. v. Greer, 77 Ark. 387, 96 S. W. 129, Chief Justice McCulloch said on rehearing: “The principle is made clear in the original opinion that whert? 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 whose land is invaded. This is upon the theory that full compensation is allowed at the time and can be recovered only once. ” In Baucum v. Ark. P. & L. Co., 179 Ark. 154, 15 S. W. 2d 399, in discussing damages in an eminent domain case, we said: “The court should also have charged the jury that full compensation for the market value and damages should be assessed in this suit, as future damages could be recovered only for the negligent use of the right-of-way condemned.” In 18 Am. Jur. p. 887 (Eminent Domain § 249), in discussing prospective damage from use ultimately contemplated by the condemnor, the general rules are stated as follows:

“All loss occurring by the taking is to be assessed in one proceeding. The damages to be recovered must cover all future uses of the condemned property that are or should be within the contemplation of the parties at the time of the taking, irrespectively of the extent of. the present needs * * ' * The land having been taken and appropriated, the right of the landowner to sue for his damages is complete, and he may recover the entire damages that may be caused by the location and by the subsequent construction. ’ ’

We, therefore, hold that the Trial Court was correct in awarding floodway damages to the landowners, Morledge, Thomas, Edgar, and Dillon.

III. The Amount of the Chancery Awards to the Landowners, Morledge, Thomas, Edgar, and Dillon. In its Points 10 to 13, inclusive, the appellant claims that the damages Were excessive that were awarded by the Chancery Court to these four landowners; and by cross appeals each of the landowners claims that the Trial Court failed to award sufficient damages. In Point I we held that the landowners were entitled to all elements of damages shown to result from the taking; and in Point II, we held that floodway damages come within such purview. These two holdings support the Chancery Court in its basic determination of the elements of damages. A review of the voluminous testimony on the damages to each landowner would serve no useful purpose. The Chancery decree is affirmed on both direct appeal and cross appeal insofar as concerns the landowners, Morledge, Thomas, Edgar, and Dillon.

IY. The Gatling Cases. The Gatling lands are in both Cross and St. Francis Counties but both of the eminent domain cases are involved on this appeal. The Gatling cases were tried on a theory of damages entirely different from the theory on which were tried the cases of Morledge, Thomas, Edgar, and Dillon; and thus the Gatling cases necessitate this separate topic. Gatling did not seek floodway damages in these cases, and reserved until a later date right to claim floodway damages. The Court decree in the Gatling case contains this language, which was stated to us in the oral argument to have been the result of a stipulation between the parties: ‘ ‘ That no consideration has been taken of any possible damage which may accrue to the defendants in the future because of any claim for damages to other lands of the defendants for any easement or flowage right or increased use or servitude of said lands by reason of increasing the amount or depth of water on same, whether the lands are protected or unprotected by levees”.

Of the Gatling lands, the District condemned for the right of way of the new channel 60.02 acres of cultivated lands (which the appraisers valued at a total of $17,-665.50), and 66.57 acres of woodlands (which the appraisers valued at a total of $2,496.38). The total allowed by the appraisers was $20,161.88. The Chancery Court allowed Gatling $300.00 an acre for his cultivated land, and $50.00 an acre for his woodlands, or a total of $21,339.00 for the lands actually taken; and as to this figure the appellant raises no objection. But the Chancery Court also allowed Gatling the following items of damages, which the appellant challenges: $5,000.00 for the taking of Sand Slough; $5,000.00 for damages because of the inconvenience of crossing the new river and the isolation of certain lands'because of the new river; and $750.00 damages to buildings on the right of way. It is only as to these three items, totalling $10,750.00, that the appellant raises any claim in the Gatling appeal; and a careful study of the record convinces us that the appellant’s contentions are without merit, in view of our holdings in Points I and II in the cases involving the other landowners herein. Sand Slough was a body of water useful for irrigation, recreation, and other purposes, and the channel of the new river is to take this waterway; and the landowner is entitled to recover damages for all property taken or damaged. Part of the Gatling lands will be on one side of the river and part on the other, and one tract will be practically isolated because of road conditions. Furthermore, some of the Gatlings’ bouses on or touching the right of way have not been moved. We, therefore, conclude that the Chancery decree should be affirmed in the Gatling cases.

       These points are:
      (1) The Court erred in admitting testimony concerning the effect of the proposed plan of improvement, the threat of the construction of the proposed levee, and in considering these matters as elements of damage.
      (2) The Court erred in considering and awarding judgment for any element of damage other than those elements set out in Ark, Stats. 35-1103.
      (3) The Court erred in awarding judgment for the damages caused by the proposed construction of a levee, since the cause of action therefor, if any, does not arise until the levee is constructed and the damage accrues.
      (4) The damages awarded by the Chancellor are not supported by substantial evidence, are unauthorized by law, and are excessive.
      (5) The Court erred in admitting testimony concerning the damage arising from the construction of the ditch to the lands of the defendants other than the lands actually taken, in considering this as an elem'ent of damage in these cases, and in awarding judgment therefor.
      (6) The Court erred in admitting testimony concerning the damage arising from the proposed construction of the levee to the lands of the defendants other than the lands actually taken, in considering this as an element of damage in these cases, and in awarding judgment therefor.
      (7) The Court erred in considering as an element of damage in this, case the damages which might result in the future from the construction-of the ditch.
      (8) The Court erred in considering evidence tending to establish damages accruing to the defendants by reason of destroying their right to irrigate from the waters of Sand Slough and Horseshoe Lake for the reason that, as a matter of law, this proceeding would in no wise affect their right to such use of the water.
      (9) The Court erred in finding that the new river would divide the Morledge farm into two equal parts.
      (10) There is no substantial evidence to support the Court’s finding that the Morledge farm before the taking had a market value of $421,800.00, and immediately after the taking the remaining portion of the farm had a market value of $319,350.00, a difference of $102,-450.00, and in rendering judgment against the appellant for said amount.
      (11) There is no substantial evidence to support the Court’s finding that the James T. Edgar farm before the taking had a market value of $102,925.00, and immediately after the taking the remaining portion of the farm had a market value of $75,840.00, a difference of $45,-085.00, and in rendering judgment against the appellant for said ¿mount.
      (12) There is no substantial evidence to support the Court’s finding that the John Dillon farm before the taking had a market value of $85,550.00 and immediately after the taking the remaining portion of the farm had a market value of $48,845.00, a difference of $36,705.00, and rendering judgment against the appellant for said amount.
      (13) There is no substantial evidence to support the Court’s finding that the Fred Thomas farm before the taking had a market value of $160,000.00 and immediately after the taking the remaining portion of the farm had a market value of $102,300.00, a difference of $57,700.00, and in rendering judgment against the appellant for said amount.

       In the Gladish case no elements of - damages were claimed except those listed in the Statute; and in the Person case, the question was whether the jury verdict was sustained by the evidence.

       There is an annotation in 75 ALR 855, entitled: “Right to compensation in eminent domain on basis of entire extent of property or complete use ultimately contemplated in excess of present requirements.”

         The Gatling brief in this Court contains this language: (Gatling) “. . . sought only damages for the lands actually taken and other damages occasioned by the construction of the ditch; and the decree reserved to the appellee Gatling the right to recover for damages to his adjoining lands at any time within five years after the damage occurs, as provided in Act 249 of the Acts of 1949”. The reason that Gatling desired to_ reserve his claim for flood damages was — as stated by his attorney in the oral argument before this Court — because the Gatling lands are on high ground and have never been flooded, even in 1927, and Gatling doubted hi§ ability to prove floodway damages unless the top of the east levee is higher than the Gatling lands.


source: Caselaw Access Project

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

license: Public Domain

text:
    Butler v. City of Little Rock.
    5-2070
    332 S. W. 2d 812
    Opinion delivered March 14, 1960.

      Langston & Walker, Frank Holt, Prosecuting Attorney, By: H. Clay Robinson, Deputy Prosecuting Attorney, for appellant.

      Joseph C. Kemp and William M. Stocks, for appellee.

      James L. Sloan, Brief Amicus Curiae for Ark. County Judges Assoc.

      Glenn G. Zimmerman, William G. Fleming, Brief Amicus Curiae for Ark. Municipal League.
   Paul Ward, Associate Justice.

The sole question presented by this appeal is a constitutional one involving the validity of the extra-territorial provisions of Act 186 of 1957, which Act provides for the creation of City Planning Commissions in cities of the first' and second class. The question arose in the manner and under the circumstances hereinafter presently set out.

The appellants on this appeal, Perry L. Butler and Horace Edward Meeks, each owned a parallel and adjoining strip of land containing 5 acres, each approximately 150 feet wide east and west and i,320 feet long north and south lying in the Southwest Quarter of. the Southeast Quarter of Section 35, Township 1 North, Range 13 West in Pulaski County, situated less than five miles from the corporate limits of Little Rock. Desiring to develop and sell said property for residential building purposes they had an engineer to prepare a Plat showing the said land divided into 22 lots with set-back lines, and a street 50 feet wide running north and south between the two parcels. They also prepared and executed a writing called a “Bill of Assurance” which described the aforesaid property and which prescribed rules and regulations for the location and construction of residences. The document was also signed and approved by the Peoples Building and Loan Association, as the holder of a lieu on the above mentioned property.

When appellants presented the Bill of Assurance and the Plat to the Circuit Clerk of Pulaski County, together with the proper fees, for the purpose of having the same recorded in .the proper record, the Clerk refused to accept them. The sole and only reason assigned by the Clerk for not accepting the papers for recordation was that they did not bear the approval of. the City Planning-Commission of the City of Little Rock.

Thereon appellants filed a petition in the Pulaski County Circuit Court praying that a Writ of Mandamus be issued against the Circuit Clerk commanding and directing him to record the Plat and Bill of Assurance. The Clerk answered the above petition stating, in effect, that there was an apparent conflict in the law regarding his duty to accept the said papers for recordation; that Act 186 of 1957 appears to provide that he should not file them for record if they were not approved by the City Planning Commission, while on the other hand Act 202 of the Acts of 1957 apparently gave the Pulaski County Planning Board certain jurisdiction over the development of land outside the corporate limits of Little Bock. Because of the above apparent conflict the Clerk asked the Court to declare his rights, duties, and responsibilities. The City of Little Bock responded to appellants’ petition to the effect that the Clerk had no right under Act 186 of 1957 to record the Plat without its having been approved by the City Planning Commission. The County Judge of Pulaski County intervened and took the position that since the lands involved were county lands and not within any corporate limits their development is controlled by Act 202 of 1957 which provides for County Planning Boards and he wanted the Court to say to what extent, if any, said Act 202 of 1957 and Act 186 of 1957 were unconstitutional.

After a hearing the trial court refused to issue the Writ of Mandamus and thereby refused to direct the Circuit Clerk to record the Plat and Bill of Assurance. In doing so it made a written statement of its ‘ ‘ Finding of Facts” and “Memorandum Opinion” which, in a very thorough and lucid manner, assigned reasons and authorities to sustain its holding and which have been very helpful to this Court. In addition to briefs by the parties above mentioned the Court has been favored with briefs, amicus curiae, by the Arkansas County Judges Association and by the Arkansas Municipal League.

Act 186, Section 5c (the last paragraph), says that “the County Becorder shall not accept any Plat for record without approval of the Planning Commission”. It is conceded that the Little Bock Planning Commission did not give its approval in this instance. Therefore, it is perfectly obvious that the trial court, in refusing to require the County Clerk to record the Plat and Bill of Assurance, must be affirmed, UNLESS, of course, said Act 186 is for some reason void and ineffective. Appellants take the position that the Act is ineffective for the reason that it is unconstitutional. The principal reason, they say, the Act is unconstitutional is because it conflicts with Article 7, Section 28 of our Constitution. The conflict, say appellants, lies in the fact that the Act deprives the County Court of its original and exclusive jurisdiction over roads and necessary internal improvements in unincorporated territory.

Article 7, Section 28 of the Constitution reads, in all parts material herein, as follows:

“The County Courts shall have exclusive original jurisdiction in all matters relating to County taxes, roads, bridges . . ., and in every other case that may be necessary to the internal improvement and local concerns of the respective counties”. (Emphasis Supplied)

Act 186 of 1957, which provides for the creation of City Planning Commissions in cities of the first and second class, contains a comprehensive enumeration of the powers and duties of the Commission relative to making and recording Planning Area Maps, Public Improvement Programs, Land Use Plans, Community Facilities Plans, Zoning, Ordinances and a Master Street Plan. The portion of the Act objectionable to appellants is found in Section 3.1 which in all material parts reads as follows:

“The territorial jurisdiction of the legislative body of the city having a Planning Commission for the purpose of this Act shall include all land lying within five (5) miles of the corporate limits”.

It appears to us that the language used in Article 7, Section 28, above quoted, is so clear that it admits of only one interpretation and that is this: Where there is a conflict over the exercise of jurisdiction (over matters mentioned in said Section 28) between the County Court and any creature of the Legislature the latter must give way. We are here concerned primarily, though not necessarily exclusively, with jurisdiction over roads in an unincorporated portion of the County. In the case of Road Im provement District No. 1 v. Glover, 89 Ark. 513, 117 S. W. 544, this Court clearly affirmed the plain language in the Constitution relative to'the exclusive jurisdiction of the County Court over 'roads.

What we have above said does not- mean, however, that the trial court must be reversed, because we are not here presented with a conflict between the County and the City. Certainly the County and the City are not attempting to exercise control or jurisdiction over the same thing or the same subject matter, and they may never 'do so insofar as this record shows. It is not pointed out, and we do not understand, that the matter of recording or not recording a Plat in any way affects the jurisdiction of the County Court over county roads or internal improvements.

Every intendment of the law is'in favor of the constitutionality of Act 186 and also Act 202 of 1957., The benefits to be derived by the general public are too obvious and far reaching to be lost if they, or a major portion thereof, can be retained within the framework of our 'Constitution, and we think they can. -The overall principle -of Zoning and Planning laws, even to the extent of extra-territorial jurisdiction, is generally approved by this and other courts. See Newton Circuit Clerk v. American Security Company, 201 Ark. 943, 148 S. W. 2d 311 and Prudential Co-op Realty Co. v. City of Youngstown, 118 Ohio St. 204, 160 N. E. 695. The apparent attitude taken by the courts relative to zoning in general is concisely stated in 58 Am. Jur. P. 947, Zoning, Validity of Laws and Regulations, % 14, this way: “There is no fundamental objection to zoning laws and ordinances so long as they apply without unnecessary discrimination and are reasonable in their scope and operation; within these limits they are a justifiable exercise of the police power and are not open-to objections upon the ground of privileges and immunities of citizens, interference with vested lights, or the taking of property without due process of law”.

This State has a moderately long history of Planning legislation, unsuccessfully challenged so far in its major aspect. See Act 108 of 1929, Act 295 of 1937, and Act 186 of 1957 pertaining to Planning by cities of the first and second classes; and Act 246 of 1937, Act 353 of 1953, and Act 202 of 1957 pertaining to County Planning. In addition to the above we have Act 56 of 1945, Act 164 of 1945, and Act 289 of 1959, which all deal with surveys and plats outside incorporation boundaries. Running through all of these Acts are ambiguities and conflicts which we are not called upon, nor are we able at this time, to reconcile.

By this opinion we are in effect holding that Act 186 of 1957 is not, as to the issue' here raised, unconstitutional, and much good may be realized by cities and counties by working in cooperation under the provisions of said Act 186 and Act 202 of 1957. To put it another way, as we see it, the City can follow one of two courses in implementing Act 186. One. The City can secure the approval of the County Court to its projected plans. In such event it seems that all questions of jurisdictional encroachment would be eliminated. Two. It can, as' it appears to be doing now, proceed without the ■ County Court’s approval. In this event it is possible of course that the County Court will never attempt to exert any jurisdiction it may have in the matter of roads or other internal improvement matters in conflict with City plans. On the other hand, as we have pointed out, the City would be taking the calculated risk. Because of the alternatives set out, we can appreciate' the wisdom of the Legislature in not requiring the approval of the County Court to any City plans.

Again, we reaffirm the narrow ground upon' which we affirm the trial court, and make it clear that we are not hereby approving, as reasonable, plans and ordinances of which we have no knowledge.

Affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. When the present case reached this Court, my first thought was that in all fairness I should disqualify myself from hearing the matter. This thought was based upon the fact that the small farm on which I live is located in a rural area within five miles of two municipalities which could possess City Planning Commissions. I was personally concerned with the denial of the right to vote for or against the officials authorized to dictate to me the conditions under which I could use and develop my property under the terms of Act 202 of 1957, and Act 186 of 1957.

It has been argued that in this modern day, planning commissions are necessary for progress. Certainly there is a great deal of merit to this argument. However, the validity of the argument depends upon what is considered to be progress. It has been my observation that most rural people in this state live in the country by choice and a great number of them such as myself live in the country principally to escape the mass regimentation that the Acts here in question are calculated to contribute' to. Yes, it can be said that in the absence of regulation some people might build a pig pen. The truth of the matter is that some of us country people might have every intention of building a pig pen. If so, we feel that we have every right to choose to do so. Freedom of choice is the greatest freedom we in this nation enjoy, or did enjoy until the United States Supreme Court by judicial fiat set out to destroy that right.

The present laws of Arkansas, whether they are fair or unfair, are ample to allow a municipality the right to annex property contiguous with their boundaries. I don’t think it would be an unreasonable burden to require that such property which the city seeks to control be incorporated into the city before control is assumed. With the strong feelings I have on this matter, I probably should have disqualified but in the absence of an offer to disqualify by the other members of the Court who, with the exception of one, all reside within the corporate limits of the appellee, I chose to remain.

Article 7, Section 28 of the Constitution reads, in all parts material herein, as follows:

“The County Courts shall have exclusive original jurisdiction in all matters relating to County taxes, roads, bridges . . ., and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.”

It is fundamental in the law that municipal corporations have no extra-territorial powers but their jurisdiction ends at the municipal boundaries. 37 Am. Jur. Municipal Corporations, § 122, p. 736; 62 C. J.S., Municipal Corporations, § 141, p. 283; McQuillin, Municipal Corporations, § 10.07. The legislature may, and in many instances has, authorized the exercise of municipal authority outside the legal limits of the municipality, but such must be within and subject to the state’s constitutional limitations.

With these fundamental principles in mind, it must be determined what constitutional limitations, if any, are imposed on the state legislature.

It must be admitted by all concerned that Art. 7, § 28 of the Arkansas Constitution, grants to the county courts exclusive original jurisdiction over county roads. Sanderson v. Texarkana, 103 Ark. 529, 146 S. W. 105; Parkview Land Co. v. Road Improvement Dist. No. 1, 92 Ark. 93, 122 S. W. 241; Road Improvement Dist. No. 1 v. Glover, 89 Ark. 513, 117 S. W. 544. This does not mean city streets nor state highways, but merely county roads. As a result, then, the county court must have the power, and, therefore, has the duty to plan, construct, maintain, alter, relocate, and abandon county roads.

How could the county courts execute this constitutional power if Act 186 is law? Under the act, municipalities could pass ordinances adopting a street plan for streets outside the city in the five-mile area. § 4 (c). The planning commission would be empowered to make regulations to enforce this plan. § 5 (c) and 5 (d) and (e). The development and use of the land in the five-mile area could be controlled by the city. § 4 (a). No plat for the dedication of land in the five-mile area could be accepted for recording unless passed on by the city. § 5 (c). Under these sections it would be possible for the city to locate, plan, and abandon streets, roads and highways; it could determine the Avidth, points of entry, types of construction and types of use of streets, roads and highways. It is Avell settled that the legislature may impose upon political subdivisions other than counties the responsibility of maintaining streets and roads. Parkview Land Co. v. Road Improvement District No. 1, supra; Sanderson v. Texarkana, supra. But here, although the city is purportedly empowered to determine the location, type of construction and all other details of roads in what has always been thought to be the county’s jurisdictional area, the city is not made responsible for their upkeep and maintenance after construction.

The proponents of the act may say this is an extreme interpretation of its provisions, but it is an inescapable conclusion. What better ways'is there to impose the city’s will on the development of county roads in the five-mile area than by refusing to approve plats for recordation or by “denial of building permits and use permits.” The county would also be hamstrung by the provisions of § 3 (f): “no public way, . , . building or structure . . . shall be • acquired, constructed or authorized unless ... submitted to the planning commission for . . . approval ...” Can the majority say the things here set out do not constitute the internal improvements specifically reserved to the county court under the Constitution?

The question here is not one of good intentions, or what responsible commissions and city councils or boards might do, but whether this act infringes upon the powers of county courts under the Arkansas Constitution. Exclusive original jurisdiction can only mean Avhat the words say. Any encroachment on this jurisdiction by a municipality is unconstitutional.

I reach this conclusion based not on my personal feelings in this matter but upon the clear and unmistakable language of the Constitution as it is written.

For the reasons stated above, I respectfully dissent.


author: Sam Robinson, Associate Justice.

text:
    Quillen v. State.
    4962
    332 S. W. 2d 811
    Opinion delivered March 14, 1960.

      William 1. Purifoy, for appellant.

      Bruce Bennett, Atty. General, By: Thorp Thomas, Asst. Atty. General, for appellee.,
   Sam Robinson, Associate Justice.

Appellant was convicted on a charge of robbing a filling station. After he was arrested-he gave the officers a written confession of his guilt. The confession included the admission of guilt of other crimes not connected with the filling station robbery. '

During the trial the prosecution introduced that part of the confession pertaining to the crime for which the defendant was then being tried. When the confession was offered in evidence, defendant objected because the State did not offer the entire confession instead of just the relevant parts , of it. In ruling that, the State could introduce only the relevant parts of the confession the trial court stated that the defendant could introduce the other parts of the confession if he so desired, but'the defendant did not choose to introduce in evidence the other' parts. It is hard to see how the defendant was prejudiced in any manner by the court’s ruling on the point. Whitten v. State, 222 Ark. 426, was reversed because the entire confession was not put in evidence, but there certain parts of the confession that may have been beneficial to the defendant were deleted. In the case at bar, however, it cannot be said that the parts of the confession not introduced in evidence were in any way helpful to the defendant.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Rome v. Ahlert.
    5-2075
    332 S. W. 2d 809
    Opinion delivered March 14, 1960.

      G. W. Loolcadoo and Lookadoo, Gooch £ Lookadoo, for appellant.

      Huie £ Huie and Wootton, Land £ Matthews, for appellee.
   Jim Johnson, Associate Justice.

This suit arises out of a collision that occurred on Highway 67 in the early morning of June 13, 1959, at about 1:30 o’clock on the bridge that crosses Bayou De Roche which separates Clark and Hot Spring Counties. It is admitted that the center of the channel of the creek or bayou is the line between Clark County and Hot Spring County. The appellant, Myrtline Rome, filed suit in the Clark County Circuit Court on September 2, 1959; and appellant, Gertrude Arnold, individually, and as administratrix of the estate of Virgil James Arnold, Jr., filed suit on September 22,1959. Both suits alleged certain damages done to the appellants and also alleged that the causes of action occurred in Clark County, Arkansas.

In due time appellees, Joseph F. Ahlert, et al., filed motions to dismiss in each case alleging that the causes of action occurred in Hot Spring County. The two suits were consolidated for the purpose of hearing the Motions to Dismiss and the Court, after hearing various witnesses, found in his opinion that by a preponderance of the evidence the causes of action occurred in Hot Spring County, but also found that there was ample evidence to go to the jury on the question of where the accident occurred. The Court held that it was his duty as the Court and not for a jury to pass upon the question of venue, and that the Circuit Court of Clark County was without jurisdiction to hear and determine the causes. The Court’s ruling was based upon the further finding that the plaintiffs in each of the two suits were non-residents of the State of Arkansas and that the venue for the trial of the cases was controlled by the provisions of Act 314 of the General Assembly of the State of Arkansas for the year 1939, as amended. The Court granted the Motions to Dismiss the appellants’ complaints. From that action of the Court comes this appeal.

For reversal, appellants rely upon the following two points:

1. The venue was strictly a jury question and should have been submitted to jury on proper instructions.
2. The court erred in finding that the preponderance of the evidence was that the cause of action occurred in Hot Spring County.

In support of the first point urged for reversal, appellants rely upon Section 23 of Article .7, and Amendment No. 16, Article 2, Section 7, of the Constitution of Arkansas, to sustain their position. It has always been the rule of appellate courts under our system of jurisprudence that constitutional questions will not be determined unless their determination is essential to the disposition of a case. Commissioner of Labor, C. R. Thornbrough v. Danco Construction Company, 226 Ark. 797, 294 S. W. 2d 336; Duncan v. Kirby, Judge, 228 Ark. 917, 311 S. W. 2d 157; The Yellow Cab Co. of Texarkana, Inc. v. Texarkana Municipal Airport, 230 Ark. 401, 322 S. W. 2d 688. A careful review of the record before us fails to reveal a request for a jury trial. The trial court’s Memorandum Opinion does disclose that after the conclusion of the hearing on the Motion to Dismiss, and after the announcement of the court’s findings, the attorneys were asked to enlighten the court on the controlling law. Briefs were filed by both sides- in which the question of entitlement to a jury trial in cases such as is here presented was argued both pro and con. The discussion of the theories of learned counsel is interesting but since there was no request made in the record for a jury trial we do not find it necessary for the disposition of this case to reach the point raised.

While we think it is doubtful that appellants in this case had a constitutional right to a trial by jury of an issue of fact on a question of venue, it is sufficient to say that they waived it by voluntarily submitting to a trial of the issues by the court sitting as a jury without making an effort to obtain a jury trial until the findings of the trial court had been announced. Chapline v. Robertson, 44 Ark. 202.

Point two urged for reversal questions the preponderance of the evidence. A number of credible witnesses were produced by each side. The testimony as to the place where the collision occurred is in hopeless conflict. However, a careful review of the record does reveal that it is undisputed that the center of the bridge on which the collision occurred was also the approximate center- of the De Roche Creek or bayou which was stipulated to be the line between Hot Spring and Clark Counties. It is further undisputed that after the collision occurred, both vehicles involved came to rest at points north of the center of the bridge and that the north side was the Hot Spring County side'of the bridge. From all of the testimony adduced it is possible that had we been sitting as the trial court in this case we.would have found to the contrary of his ruling. Even so, from the undisputed evidence contained in the record here presented we cannot say that there was no substantial evidence to support the trial court’s findings.

It has long been the rule that when the trial judge decides a fact question, either interlocutory or preliminary to the trial, such decision will be sustained on appeal if there is any substantial evidence to support it. Blass v. Lee, 55 Ark. 329, 18 S. W. 186; Metcalf v. Jelks, 177 Ark. 1023, 8 S. W. 462; Mosley v. Mohawk Lbr. Co., 122 Ark. 227, 183 S. W. 187; Shephard v. Hopson, 191 Ark. 284, 86 S. W. 2d 30; Halliday v. Fenton, 164 Ark. 11, 260 S. W. 961; Scroggin & Co. v. Merrick, 176 Ark. 1205, 5 S. W. 2d 344; McElroy v. Underwood, 170 Ark. 794, 281 S. W. 368.

Affirmed.


author: Carleton Harris, Chief Justice. Jim Johnson, Associate Justice,

text:
    Bushmiaer v. City of Little Rock.
    5-2076
    333 S. W. 2d 236
    Opinion delivered March 21, 1960.

      Griffin Smith, for appellant.

      ■Joseph G. Kemp and William M. Stocks, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a decree of the Pulaski County Chancery Court, which found that “a thirty (30) foot strip of land was dedicated to the public for a right-of-way for West Markham Street along the south side of Midland Hills Addition at the time of filing of record the plats for said addition; and that the proposed widening of West Markham south of Midland Hills Addition * * * will be entirely within the dedicated right-of-way * * Petition for injunction against the city of Little Bock was denied.

Appellants are property owners in the addition adjoining the north side of the street between the intersection of Kavanaugh and West Markham to the east, and just beyond Crystal Avenue to the west. They alleged that no dedication for public use exists north of the present curb line, and a widening of the right-of-way would constitute a taking of private property for public use without just compensation. They further alleged that unless the construction was enjoined, irreparable damage would result, and that they had no adequate remedy at law. Answering, the City asserted that it owned all of the right-of-way which it proposed to utilize; also, that the appellants had an adequate remedy at law for damages. For reversal, appellants argue three points, as follows:

“I.

Dedication of property for use as a public street must be accomplished in such manner that the record of the dedication puts abutting landowners on notice of the boundaries. The intent must be manifested in such fashion that a competent surveyor can establish the boundaries with absolute certainty. A survey which carries on its face notice of its own inaccuracy cannot, after lapse of half a century, during which improvements have been made by abutting landowners, sufficiently meet these standards.

II.

Ark. Stats. Sec. 19-3802 require acceptance of a dedication by passage of an ordinance specifically designed for such purpose. No such ordinance accepted the dedication claimed here, hence it is incomplete.

-ni: '•

By requiring, improvements, by abutting landowners, which could only, be done- if the property was private, the city is now estopped to claim it is public.”

We proceed to a discussion of each point in the order named.

I.

Prom evidence presented at the trial, it appears that the Midland Hills addition was platted in two parts within an approximate two months period. The eastern section, platted in Augiist, 1910, contains a dedication along the southern- boundary for Markham Street’ (designated as such on the plat), with the figure “30” indicating the width .of the street right-of-way. The following statement appears on the face of the plat:

“-Because of the many, curves and angles and irregular boundaries on this Plat the exact dimensions of lots or.subdivisions may not be accurately designated on this plat, therefore, dimensions shown hereon are subject to variations and errors and in such cases, the monuments and iron' pins as originally placed by Theo. Hartman C. E. shall govern.”

The western section, platted on October 9, 1910, contains a dedication along the southern boundary for Markham Street in the. same scale (which is indicated to be 1"=100' on both plats), but without.any written figure indicating the width of the right-of-way. These plats were recordr ed- in Plat Book No. 1 on pages 132 and 150. respectively. The evidence reflects-a conflict between the plats of the addition, and the original government survey, and many of the figures on the plats, given by the original surveyor of the addition, cannot be verified. This evidence was primarily directed to the lengths of the eastern and southern boundaries of the addition, and not to specific lots along the northern side of Markham Street. Mr. Chris WrigHt, a civil engineer, testified that, in his opinion,’ there was’ “such utter confusion in the pins, you cannot accept them”; however, he admitted that' he could not give any figures for overage or shortage in the lots along the street. Jan Carter, Director of Public. Works for Little Rock, conceded that some of the figures given by the. original surveyor of Midland Hills could not be verified. The city, to substantiate .its contention that the width of the dedicated right-of-way was thirty feet,- relied upon the testimony óf Mr. Carter and John P. Powers, a registered professional engineer. Carter stated that the scale on the two plats was the same, and that he concluded that the right-of-way on the plat of the western division was a’continuation of the thirty foot right-of-way on the eastern part, since both “scaled .out” approximately the same. He further .testifie'd that, the proposed widening will vary from 3% feet to 4 or. 4% feet back of the present curb, and that at no place will the street and sidewalks encroach upon the property.beyond the alleged thirty foot right-of-way.)

Mr. Powers testified that according to his computations and figures, the minimum right-of-way through the addition is twenty-nine and one-half feet, this determination being based upon measurements he made from the streets :in the addition north óf Márkham Street along the property lines south' to the' right-of-way line as claimed by the city. The witness further stated that along the east side of Midland (the first street intersecting Markham in the disputed' area) the' measured distance to the right-of-way is one-half foot “shy” of the platted distance on the" original plat (this- is the point which establishes the minimum width-of the right-of-way at twenty-nine and one-half feet) ;.that on-the west side of Midland there is an.overage of 2.4 feet; that along the east side of Ridgeway. Avenue - (the second street) there is an overage of .45 feet;-that along the east side of Crystal Ayenue. there is-an overage, of 2.35 .feet, and that along the western boundary of the addition, he found an overage of 2.35 feet over the equivalent of eight fifty foot lots. . Based upon these measurements, he concluded that the city had a thirty foot right-of-way through the addition. From his testimony, it is also apparent that pins were found near the alleged right-of-way line in each instance, although in many instances more than one was found at a particular location.

Appellants contend that the surveys made in the area are so patently erroneous that the boundaries of the dedication cannot be established beyond the existing curb line, and that the property owners cannot be charged with notice of a dedication of the alleged width.

We think the evidence supports the finding of the Chancellor that the dedicator intended to dedicate a right-of-way thirty feet in width. Relative to the statement appearing on the face of the plat, original pins or monuments were not determinable, and it was therefore not possible to establish exact dimensions, but appellants offered no proof to show that the findings of the city engineers were incorrect. Further, we note that appellants introduced no evidence showing that as a result of the widening, their lots are made smaller, i.e., that they have less footage, than entitled to under the plat. Appellants only rely upon testimony that the general dimensions of the entire addition are not susceptible to confirmation by survey, and that the dedication, if any, beyond the existing curb line is void. This same contention was made in the case of Paragould v. Lawson, 88 Ark. 478, 115 S. W. 379 (1908), and was rejected by this Court, which stated:

“The principal contention of appellees in support of the decree in their favor is that the dedication was void for the reason that the plat of the addition did not sufficiently locate and identify the land, but we think this contention is not well founded. The surveyor’s certificate or note indorsed on the plat shows that the land platted lies within a certain quarter section, and the center of the quarter section is approximately indicated on the plat. Cumberland Street was one of the established streets running through the city, and the designation of the street on the plat by that name and of the same width is sufficient to identify it as a continuation of that street. We are only concerned in this case about the identification of the street; but when it thus identified as a continuation of the street of that name in the city, the uncertainty as to the location of other property on the plat disappears.

It is not essential that the description be so precise that the location and identity of the land embraced are apparent from the description alone, but extraneous circumstances may be considered to show the application of the description. Dorr v. School District, 40 Ark. 237; Tippins v. Phillips, 123 Ga. 415. According to this rule, it was competent, by parol testimony of extraneous circumstances, to fit the plat to the adjoining parts of the city, so that Cumberland Street would be what it was obviously intended, a continuation of the street of that name and width in the old part of the city.”

Here, the location of Markham Street is not in dispute, and the city has shown that the width of the street according to the scale of the plat of the western part of the addition, is the same as the width of the street in the plat of the eastern portion where street width is indicated. It might also be pointed out that the plat of the western portion shows the boundaries of Block 13 (half of Block 13 being shown on plat 132), and portrays an extension of Markham Street east, which ties in with plat 132, or the eastern portion. This extension appears to be of the same width as the rest of the street shown on the plat. These facts in themselves denote an intention by the dedicator to dedicate a continuous thirty foot right-of-way along the entire southern boundary, and constitute notice to a person contemplating purchase of land within the addition.

As previously stated, appellants offer no proof that they have record title to the disputed area. Without a showing of actual title of record, or by the monuments referred to on the plats, appellants can only rely upon adverse possession, or laches, neither of which is applicable in this case. As to adverse possession, the pertinent portion of Ark. Stats. Anno. (1947), § 19-3831, provides as follows:

‘ ‘ Hereafter no title or right of possession to any alley, street, or public park, or any portion thereof, in any city or incorporated town in this State shall or can be acquired by adverse possession or adverse occupancy thereof, and the right of the public or of any city or incorporated town ... to open or have opened any alley, street or public part, or parts thereof, shall not be defeated in any. action or proceeding by reason or because of adverse possession or adverse occupancy of any such alley, street or public park or any portion thereof where such adverse possession or occupancy commenced or begun after the passage of this act, . * . *

There is no question of' abandonment, for it is undisputed that the public has used a part of the alleged right-of-way from the beginning, and has continued to so use it.

Nor can appellants prevail upon the theory of laches or estoppel, for in Paragould v. Lawson, supra, this Court stated:

“The equitable- doctrine of laches can not be successfully invoked to defeat the right of the city to open the street which was dedicated to that use. The city is not asking any equitable relief, and appellees are therefore not in position to take advantage of a doctrine which is sometimes afforded by courts of equity purely as a matter of defense where the party guilty of laches is asking the court for relief. In such case the court simply remains passive and refuses to grant the relief. Chatfield v. Iowa & Ark. Land Co., ante p. 395. -

Nor is the city estopped, on account, of the inaction of its officers for a long period of time, .to proceed to open the street. The city had no power to vacate the street (Texarkana v. Leach, 66 Ark. 40), and could not do indirectly through mere inaction on the part of its officers that which it was without power to do directly. Beebe v. Little Rock, 68 Ark. 39. The owners of lots abutting on the platted street had notice of the dedication, and are presumed to have had knowledge of the city’s right to proceed in its own time to open the street. Brewer v. City of Pine Bluff, supra. They could therefore, build up no right to continued occupancy of the dedicated strip on account of delay in opening the street to public use.”

II.

Belative to this point, appellants rely upon § 19-3802, which provides that streets and alleys, dedicated to public use, shall be accepted by the city through ordinance. The record does not reflect that the dedication, here in question, has been accepted by city ordinance. The same argument was made in Brewer v. City of Pine Bluff, 80 Ark. 489, 97 S. W. 1034 (1906). As previously pointed out, this land was platted, the streets dedicated, lots sold by reference to the plats, and the public has used the street for many years. In the Brewer case, it was shown that the dedication was never accepted by city ordinance, but this Court said:

“But the question is not important in this case, for, as before stated, the dedication of it as a public way has now become irrevocable, and the city can accept it at any time. Meanwhile the public has the right to use it, and the plaintiff has no right to obstruct it.”

ill.

According to the testimony of Mrs. George Smith, one of the appellants, she received a letter from some city official directing her to put up a retaining wall on a portion of the property that the city now claims is in the right-of-way, under the penalty of having the city do it for her, and sending her the bill. She was unable to identify the sender of the letter. Mrs. Smith built the wall and paid for it in 1945. Appellants assert that by this positive act, the city recognized the property as private property; that it cannot, on the one hand, require property owners to make improvements on the theory that the property was private, compelling the owner to pay for such improvements, and then later insist that the property is not private, but in a right-of-way; in other words, the city is estopped from disputing Mrs. Smith’s ownership. While the testimony on this point was somewhat vague, since Mrs. Smith did not recall who ordered her to build the wall, and appellants have presented no source of authority for such action by the city, a similar contention was held to be without merit in the case of Hankins v. City of Pine Bluff, 217 Ark. 226, 229 S. W. 2d 231 (1950). There, this Court said:

“Hankins also contends that the city is estopped to question the location of the curbing, for the reason that the city engineer approved it. The city, however, brought suit soon after construction was begun, and in any event the city engineer’s erroneous approval could not create an estoppel. It is not suggested that this officer is authorized to give away part of the public thoroughfare, and we have often held that a public officer cannot bind the State or its subdivisions beyond the extent of his actual authority. ‘All who deal with a public agent must at their peril inquire into his real power to bind his principal.’ ”

On the whole case, we are unable to say that the Chancellor’s findings were against the preponderance of the evidence.

Affirmed.

Justice McFaddin not participating.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. I understand the law relative to the validity of dedication to be as follows:

“To constitute a good common law dedication, a definite and certain description of that which is proposed to be dedicated is necessary. The instrument relied on as dedicating property should show on its face at least enough to enable a competent surveyor to find with absolute certainty that which is assumed to be conveyed. However, an insufficient description may be cured by reference to a map accurately fixing the location. ’ ’ 26 C.J.S. Dedication Section 14.

One of the plats here in question contains on its face the following statement:

‘ ‘ Because of the many curves and angles and irregular boundaries on this Plat the exact dimensions of lots or subdivisions may not be accurately designated on this plat, therefore, dimensions shown hereon are subject to variations and errors and in such cases, the monuments and iron pins as originally placed by Theo. Hartman C. E. shall govern. ’ ’

The other plat in question contains absolutely no indication of the width of the right-of-way which was supposed to have been dedicated.

The plats were so defective that not a single engineer or surveyor could testify that the right-of-way could he found with absolute certainty. No map was introduced accurately fixing the location. In fact, it is undisputed that for the past 30 years the measurements on the plats have not been reliable. As I see it, the record was devoid of practical considerations by the aid of surrounding-circumstances which could he made to supply the lack of definiteness in the maps. See: 16 Am. Jur. Dedication, Sec. 25, page 371. Therefore, since the appellee failed to meet the test required of it by the law, I respectfully dissent.

       According to Mr. Carter, the overall width of the- right-of-way is sixty feet, but we are here only .concerned with the north, half of such right-of-way (that portion dedicated by Midland Hills Company). The street has been enlarged from thirty to forty-five feet, and seven and one-half feet is left on each' side for sidewalks and utilities.

       Mrs. Smith first stated that she received the letter from the Chamber of Commerce, but subsequently testified that the letter came from the city.

       Ark. Stats., §19-3806, 3807.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Worden v. Worden.
    5-2090
    333 S. W. 2d 494
    Opinion delivered March 21, 1960.
    [Rehearing denied April 18, 1960]

      Claude Brinton and Bon McCourtney, for appellant.

      E. D. McGowan, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This is a suit to annul a marriage because of alleged fraudulent representations. The Chancellor denied the prayed relief; and this appeal ensued.

We refer to the young people by their given names. Harry was in the military service, and returned to Jonesboro for a 15-day leave about the first of November, 1958. He had a date with Genevive, and coition occurred between them on several occasions between November 3rd. and 14th. In December 1958 Genevive wrote Harry that she was pregnant and that he was the father of the expected child. Harry came home at the end of his military service in February 1959; and on March 1, 1959 he and Genevive were married and lived together until the birth of the baby on May 16, 1959. Then Harry’s mother concluded that it was a full 9-months baby and that Harry could not have been the father of the baby. Thereupon, Harry filed the present suit for annulment, alleging that he had married Genevive because she had represented to him that he was the father of her unborn child, and that such representation was known by her to be false. In her answer to the complaint, Genevive insisted that Harry was the father of the child; and also that he had entered into the marriage of his own free will and accord.

Appellant claims the Trial Court .was in error in refusing the testimony of a doctor and a nurse. But even admitting, for the sake of argument, the testimony of the doctor and the nurse to have been competent and considered by us on the trial de novo, we nevertheless conclude that the Chancery Court was correct in refusing to annul the marriage. On the direct examination of Harry this occurred:

“Q. Did this statement of hers that you were the father of the unborn child, did that have anything to do with you deciding to marry her?
A. Yes, sir.
Q. Then, I’ll ask you this, would you have married her had it not been for that statement?
A. I don’t know that, sir.
Q. You don’t know whether you would or not?
A. No, sir.”

Later, the Trial Court asked Harry these questions:

“Q. Now, Harry, Mr. Brinton asked you why you married Jean and will you tell me again why you married her?
A. Well, I thought—
Q. What he really asked you was: Would you have married Jean at all if she had not told you that she was pregnant by you?
A. I said I didn’t know.
Q. You really don’t know whether you would or not, is that what you are saying?
A. I might have but I really don’t think I would have, no, I’m pretty sure I wouldn’t have.
THE COURT: That’s all.”

Then, finally, on re-direct examination Harry’s attorney asked him:

“Q. Would you have married her at that time had you not believed the child to be yours?
A. I would not have.
MR. BRINTON: That’s all.”

The point we are making is, that Harry did not sufficiently establish that he married Genevive in reliance on her representation to him that he was the father of the expected child, even if it be conceded that the representation was false. In a suit to set aside an ordinary business contract on account of false representations, the person who seeks to set aside the contract has the burden of establishing: (a) that the representation was false; (b) that the person making the representation knew it was false; (c) that it was made for the purpose of inducing the contract; (d) that the person to whom the representation, was made relied on the false representation; and also (e) that he would not have entered into the contract except for the false representation. Some of onr cases on general contract law holding in accordance with the italicized language are: Arkadelphia Lbr. Co. v. Thornton, 83 Ark. 403, 104 S. W. 169; Ryan v. Batchelor, 95 Ark. 375, 129 S. W. 787; Jarratt v. Langston, 99 Ark. 438, 138 S. W. 1003; Brown v. LeMay, 101 Ark. 95, 141 S. W. 759; Troyer v. Cameron, 160 Ark. 421, 254 S. W. 688; and Gregory v. Consolidated Utilities, 186 Ark. 406, 53 S. W. 2d 854.

In Shatford v. Shatford, 214 Ark. 612, 217 S. W. 2d 917, annulment of a marriage contract was sought on grounds similar to those here alleged; and we held that the burden was on the party seeking the annulment to establish the alleged fraud by clear and convincing evidence :

“The burden of proof was on Shannon, as plaintiff, to establish the alleged fraud by clear and convincing evidence. In 55 C. J. S. 938, in discussing proceedings seeking to annul a marriage, this is stated as the general rule: 'The courts will not grant a decree of nullity except on the production of clear, satisfactory and convincing evidence.’ Indeed, since marriage is a solemn contract, entered into by license from the State, it is clear that the same quantum of evidence is required to set aside a marriage contract for fraud as is required to set aside any other written contract. In Green v. Bush, 203 Ark. 883, 159 S. W. 2d 458, we said: ‘This is a suit to cancel a deed upon the grounds that its execution was procured by fraud; which is never presumed, but must be affirmatively proved by testimony which is clear and convincing. Kincaid v. Price, 82 Ark. 20, 100 S. W. 76; English v. North, 112 Ark. 489, 166 S. W. 577; Norsworthy v. Hicks, 170 Ark. 877, 281 S. W. 660.’ The same rule applies in a suit to annul a marriage contract —i.e., the testimony must be clear and convincing. The question now to be considered is whether plaintiff’s evidence satisfies that requirement.”

Applying the law, announced in the foregoing quotation, to the case at bar, we conclude that, even if the representation of Genevive to Harry, that he was' the father of the unborn child,, was false, still Harry did not establish'by the necessary quantum of. evidence that he relied on such; representation^,' The Chancery Court found that Harry did not rely "on the representation as to paternity, and therefore could not obtain annulment, f^e.. cannot say that’such finding is contrary to the preponderance of the evidence: so"we affirm the decree.

The Trial Court reserved' for future determination the question of the. amount-of the. hospital bills and doctor bills that Harry should.pay, and also.the amount of maintenance that Harry should pay for .the child. The evidence was not developed as to Harry’s ability to make such payments. We, .therefore, remand the case to the Chancery Court to reinvest it with jurisdiction for further orders, except we tax the costs against appellant and'allow the attorney for" the appellee a fee of $100.00 for his services in this-Court.

Affirmed.

Johnson, J., dissents. .

       The complaint said: “That the representations made by Defendant that the Plaintiff was the father of the unborn child were false and at the time known to the Defendant to be false. That these representations were made to the Plaintiff with the intent and purpose then and there to cause his marriage with the Defendant and that this was the sole reason of the representations. This Plaintiff had no knowledge of the falsity of these representations at that time and believed the Defendant was speaking the truth and because of his belief in these false representations and for no other reason, he entered into the marirage and permitted the performance of the ceremony.”