Selle v. City of Fayetteville
| Citation | 184 S.W.2d 58,207 Ark. 966 |
| Decision Date | 27 November 1944 |
| Docket Number | 4-7473 |
| Parties | Selle v. City of Fayetteville |
| Court | Supreme Court of Arkansas |
Appeal from Washington Circuit Court; J. W. Trimble, Judge.
Reversed.
Frank Nesbitt and Lee Seamster, for appellant.
Price Dickson and O. E. Williams, for appellee.
No testimony was heard at the trial from which is this appeal, the case having been disposed of on the pleadings. We, therefore, copy so much of the pleadings as is necessary to present the questions involved.
Condemnation proceedings were instituted by the city of Fayetteville under the authority of Act 135 of the Acts of 1929, Vol. 1, p. 705, to construct an airport. This act appears as §§ 10037-10041, Pope's Digest. Section 2 of the act reads as follows:
The petition for condemnation alleged that Clyde Selle and the other appellant here are the owners of a certain 165-acre tract of land, which the city required for the purpose of constructing the airport, and that the city has been unable to obtain the land by purchase from the owners, wherefore, it was prayed that the court fix an amount to be deposited by the petitioner to authorize the immediate entry upon the land, and that the cause be heard to determine the amount of compensation due the landowners, in the manner prescribed by law.
The petition was presented to the court and on September 20, 1943, an order was entered requiring a deposit of $ 5,000 by petitioners as a condition precedent to the city's right to enter upon and to take possession of the land. This deposit has never been made. Notice of this order was duly served upon the landowners. A trial in the circuit court before a jury was had on November 1, 1943, and a verdict was returned fixing the value of the land at $ 16,000. A motion was filed by the city to dismiss the proceeding, which recited that on November 23, 1943, which was within less than 30 days of the judgment rendered November 1, 1943, the city had served notice upon the landowners that it had elected to abandon the condemnation proceeding.
The landowners filed a response to this motion, in which they alleged:
1. That the cause had proceeded to a verdict and judgment and the city was not entitled to dismiss the proceeding.
2. That the cause had been dismissed to clear the way for another suit having the same purpose, and praying that if the cause were dismissed it should be with prejudice against instituting another suit for the same purpose.
3. That before the city should be permitted to dismiss the cause even with prejudice to another suit, the city should be required to pay the expenses and costs to the landowners in defending the suit as follows: attorney fee, $ 1,700; cost of witness and proper defense, $ 500; and for placing cloud on title, $ 500. All of which the city should be required to pay before dismissing the suit.
4. That if the city were permitted to dismiss, it should be required to restore the landowners to the position they were in before the institution of the proceedings.
5. That the landowners have another suit pending to recover costs and damages which should be consolidated and heard with the motion of the city to the end that all the issues between the parties might be settled.
The suit referred to was brought by the landowners against the city, and recited the facts hereinbefore stated. It was alleged in this complaint, in addition, that the landowners had incurred expenses in preparation for the trial of the condemnation suit, including the employment of an attorney. It was also alleged that the city was not in good faith in attempting to abandon the condemnation suit, but intended to harass the landowners into accepting a compensation less than that fixed by the verdict of the jury and the judgment of the court.
The lack of good faith on the part of the city was further alleged in that the city did not intend to use all of the land it had condemned, but had arranged to sell 40 acres thereof for private purposes, and at a profit. Whereupon it was prayed that if the city were allowed to dismiss the proceedings, it be required to pay the damages above claimed.
There was a motion to strike the response of the landowners, which was considered along with the other pleadings, from which it was ordered and adjudged that the city had properly abandoned the condemnation proceedings, and had not entered upon the land, and had made no payment or deposit, and in abandoning the condemnation proceedings had forfeited all rights in the premises, but was not entitled to dismiss the suit.
The motion to strike the response was treated as a demurrer and was sustained as such for the reason that there is no law authorizing the defendant in a condemnation suit to recover expenses as damages in such cases. The landowners refused to plead further and their claim for damages and expenses was dismissed.
The city excepted to the refusal of the court to dismiss the proceedings and the landowners excepted to the holding that they are not entitled to recover expenses and damages and in permitting the city to abandon the proceedings, and both parties have appealed. The city has paid the costs of the original condemnation proceedings.
We consider first the right of the city to abandon the proceedings. We think it has that right and the permission of the court was not necessary to its exercise, but we consider later the consequences of that action under the pleading set out above.
There is an exhaustive annotation of this question appended to the case of Cunningham v. Memphis R. T. Co., 126 Tenn. 343, 149 S.W. 103, Ann. Cas. 1913E, 1058, and the annotator summarizes the numerous cases there cited and reviewed, with the statement that in the absence of a statute fixing the time within which a discontinuance may be had, the general rule unquestionably is that the proceedings may be dismissed at any time before the rights of the parties have become reciprocally vested, and that the cases are divided into two groups, the majority of the cases holding that the rights of the parties are not vested until the amount of the award is paid, or the land is taken, while in some jurisdictions the confirmation of the award by the court vests the rights of the parties and precludes discontinuance.
It was there pointed out that the cases cited had construed the statutes of the states in which the decisions were rendered. The annotator then takes up the separate laws of the several states, and as to Arkansas says:
Under our statute the right of appropriation of the landowner's land becomes an option to acquire the land upon the rendition of the judgment assessing value, which must be exercised within 30 days, but which expires if not exercised within that time, by the payment of the award. Section 5004, Pope's Digest, reads as follows: "In all cases where such company shall not pay or deposit the amount of the damages assessed as aforesaid within thirty days after such assessment, they shall forfeit all rights in the premises."
Now while the authority to dismiss such proceedings exists until the rights of the parties have reciprocally vested, and abates by operation of law if the award is not paid within thirty days, the condemnor is liable for any damages occasioned by the deprivation of any use of the land to which it would prudently have been put, after the option comes into existence, until the notice is given that it will...
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