Arkansas River Packet Co. v. Sorrells

• Decision Date: 19 May 1888
• Citation: 8 S.W. 683
• Parties: ARKANSAS RIVER PACKET Co. <I>v.</I> SORRELLS.
• Court: Arkansas Supreme Court

Page 683

8 S.W. 683

ARKANSAS RIVER PACKET Co.

v. SORRELLS.

Supreme Court of Arkansas.

May 19, 1888.

Appeal from circuit court, Jefferson county; JOHN A. WILLIAMS, Judge.

Action by Theodoric F. Sorrells against the Arkansas River Packet Company for an injunction. A demurrer to the answer was sustained, and defendant appealed.

N. T. White, for appellant. T. F. Sorrells, for appellee.

BATTLE, J.

On the 25th of May, 1885, Theodoric F. Sorrells filed his complaint in the Jefferson circuit court, alleging, among other things, the following: That in the year 1830 Jown W. and James T. Pullen purchased from the United States the land on which the city of Pine Bluff is situated, and in the same year sold a part of the same to one Anthony H. Davis; that in the year 1838 Davis sold to James J. Chowning, William H. Pinkard, and Henry S. Dawson, a three-fourths interest in this land; that in the year 1838 the then owners of the land caused the same to be surveyed off into lots and blocks, and in the same year filed in the office of the clerk of Jefferson county a plat and plan of the city of Pine Bluff, designating and naming the various streets and alleys, and dedicating to public use the streets of the city; that long after the filing of the plat of the city plaintiff became the legal owner in fee of lot number 5, in block number 14, and has been in peaceable and adverse possession thereof since his purchase, for a period of 24 years; that said lot is situate at the corner of Barreque and Dardenne streets, fronting 60 feet on Barreque street, running 154 feet north on Dardenne street, near to the Arkansas river; that the defendants, John D. Adams, James H. Reed, John H. Harbin, and Samuel Hilzhein, composing the Arkansas River Packet Company, have, in violation of the rights of plaintiff, erected a warehouse in the middle of Dardenne street, within 10 feet of the lot, thereby almost completely obstructing said street, and dug a deep ditch at the north end and near the center of the street, for the purpose of making a steam-boat landing; that the ditch is so constructed as to reach the river near the north end of said lot, and that the erection and maintenance of the warehouse on said street and the ditch prevent the free use and occupation of the lot, and damage his property; and were made without his knowledge and consent; the complaint then prays that the court make an order restraining and enjoining the defendants from keeping said warehouse any longer in Dardenne street, and the defendants be required to remove the same from said street, and fill up the ditch. To this complaint defendants filed an answer, in which they admit that they have a warehouse on the north end of Dardenne street, north of Barreque street, but deny that the same in any manner interferes with the property of plaintiff, or that by the erection thereof they violated any of his rights, and allege that Dardenne street, north of Barreque street, has been set apart and designated by the city council of Pine Bluff as the city wharf, and that the ditch complained of by plaintiff was dug and is maintained as a passage to and from steam-boats for the convenience of loading and unloading freight and passengers, and that the same was necessary for such purposes. They positively deny that the excavation of the ditch or the maintenance of the warehouse upon Dardenne street has in any manner interfered with or in the slightest degree injured the property of plaintiff, or that the same are a nuisance, or that the value of plaintiff's property has in any way been impaired or injured thereby, but that such improvements have increased its value. They pleaded the ordinance of the city of Pine Bluff establishing the city wharf, and annex to their answer a certified copy of the city ordinance establishing Dardenne street, north of Barraque street, to the low-water mark on the Arkansas river as such wharf. Plaintiff demurred to the answer because the facts therein stated are not sufficient to constitute a defense; and the court sustained the demurrer to so much of it as pleads the ordinance of the city council of Pine Bluff as authority for building the warehouse, and in other respects overruled it; and, the defendants refusing to plead further, the court rendered a decree granting an injunction, and commanding defendants, within 30 days, to move the warehouse from Dardenne street. And defendants appealed.

In Taylor v. Armstrong, 24 Ark. 102, this court held that the interest which the public acquired by the dedication of land for a street or other highway is merely an easement or right of passage over the soil, and that the owner, who made the dedication, still retains the fee, together with all rights of property not inconsistent with the public use,...