Arkansas State Highway Commission v. Partain

• Decision Date: 03 February 1936
• Docket Number: No. 4-4180.,4-4180.
• Citation: 90 S.W.2d 968
• Parties: ARKANSAS STATE HIGHWAY COMMISSION v. PARTAIN et al.
• Court: Arkansas Supreme Court

90 S.W.2d 968

ARKANSAS STATE HIGHWAY COMMISSION v. PARTAIN et al.

No. 4-4180.

Supreme Court of Arkansas.

February 3, 1936.

As Amended on Denial of Rehearing March 2, 1936.

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Suit by Dave Partain against the Arkansas State Highway Commission, wherein others intervened. Decree for plaintiff and interveners, and defendant appeals.

Affirmed, with directions.

Carl E. Bailey, Atty. Gen., Thomas Fitzhugh, Asst. Atty. Gen., and Neill Bohlinger, of Little Rock, for appellant.

Miles, Armstrong & Young, of Fort Smith, and Partain & Agee, of Van Buren, for appellees.

SMITH, Justice.

Appellee Partain brought this suit against the Arkansas highway commission, and for his cause of action alleged the following facts: He owns and resides upon certain lots having 300 feet frontage on Jefferson street in the city of Van Buren. Just east of Jefferson street and one block from said street, United States highways 64 and 71, and state highway 45 are routed on Broadway street, coming across the Arkansas river from the city of Fort Smith. That such highways have been located by the state highway department through the city of Van Buren from the end of the bridge over the Arkansas river across or above the tracks of the Missouri Pacific Railroad Company. It is contemplated by the state highway department to build and construct, and to cause to be built and constructed, an overpass or viaduct across the tracks of the railroad company in said city of Van Buren leading from and off the bridge, across the Arkansas river, and along Jefferson street, adjacent to Partain's residence. The petitioner alleged that the construction of this viaduct or overpass would destroy the value of his property, and that this was about to be done without compensating him for the damages he would sustain.

A temporary restraining order was granted. Pending final submission of the cause, certain citizens and taxpayers of Van Buren who are the owners of real estate in the Fort Smith and Van Buren bridge improvement district filed an intervention in which they adopted the allegations of Partain's petition and joined with him in the prayer that the construction of the viaduct or overpass be restrained. They alleged, as an additional reason why this should be done, that the construction of this viaduct in the manner proposed would destroy the value of the bridge across the Arkansas river which the improvement district had constructed for use by railroads and street car lines. It was alleged that the bridge had been built to accommodate railroad and street car traffic at a cost far greater than would otherwise have been required, and that this was done pursuant to the acts of the General Assembly authorizing the construction of the bridge. Interveners alleged that the commissioners of the bridge improvement district were without authority to make any contract or to enter into any arrangement having that result.

Upon the final submission of the cause, the relief prayed by the original petitioner and the interveners was granted, and the state highway commission and the contractor to whom the construction contract had been awarded were permanently enjoined and restrained "from the construction of a viaduct or over-pass on Jefferson street in the city of Van Buren, Arkansas, along side or by the property and homes of the plaintiff and the interveners herein described or along and over the property of the Ft. Smith and Van Buren Bridge District or into, or on, the bridge of said district."

At the trial from which this appeal comes, there was offered in evidence an ordinance of the city of Van Buren which provided "that Jefferson street between First and Fourth streets, in the city of Van Buren, Arkansas, be and the same is hereby closed and is dedicated to the construction and use of an over-pass to be constructed by the Arkansas State Highway Commission."

There was also offered in evidence an agreement between the commissioners of the bridge improvement district and the state highway commission which recites the purpose and intention of the commission to construct the viaduct in question and the necessity therefor. In this agreement the bridge district grants to the highway commission the right "to construct, complete and maintain at its sole expense viaduct and appurtenances as designed by the Commission's engineer and approved by the U. S. Board of Public Roads." The commission agreed to construct and maintain the viaduct at its own cost. The commission also agreed to indemnify and save the district harmless for "damages, loss or destruction either suffered or caused to any person or to any property incident to the construction of the viaduct." It thus appears that, while the city has authorized the erection of the viaduct in one of its own streets, it is proposed to have it done at the expense of the state highway commission.

Counsel for the appellant highway commission say that the proposed improvement is in effect a change of the grade of a street in the city of Van Buren which the council has authorized, and we are cited to the case of Eickhoff v. Street Improvement Dist. No. 11 of Argenta, 120 Ark. 212, 179 S.W. 367, which holds that the cities and towns have this power. But the same case also held that, while this could be done, yet if, and when, done, damages resulted to a property owner, the damages must be paid by the city.

There was offered in evidence a resolution adopted by the highway commission making provision for the payment of these damages, reading as follows: "Motion by Mr. Murphy, seconded by Mr. Black, that funds now in the State Contingent Fund to the amount of Fifteen Thousand Dollars ($15,000) are hereby allocated to Job No. 4176, U.S.P.W. Proj. N.R.M. 216-C, for the purpose of paying any damages to privately owned property adjacent to the project which the State might be adjudged to pay by reason of the construction of said project. Motion unanimously carried."

Our attention is also called to Act No. 160, of the Acts of 1935, p. 438, reading as follows: "The Arkansas State Highway Commission is hereby authorized, empowered and directed to allocate and use such part of the sum of $15,000.00 remaining in its custody or under its control from unused Federal funds, as the said Commission may find necessary for the erection of the Van Buren viaduct, or in securing any rights or title to property or paying damages in connection therewith; provided, nothing herein shall be construed as giving to the Arkansas State Highway Commission the power to condemn private property in...