Arkansas State Highway Commission v. Bingham

• Court: Arkansas Supreme Court
• Writing for the Court: WARD; McFADDIN; JOHNSON
• Citation: Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S.W.2d 728 (Ark. 1960)
• Decision Date: 28 March 1960
• Docket Number: No. 5-2016,5-2016
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Sallie Harvey BINGHAM et al., Appellees.

Page 728

333 S.W.2d 728

231 Ark. 934

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Sallie Harvey BINGHAM et al., Appellees.

No. 5-2016.

Supreme Court of Arkansas.

March 28, 1960.

Rehearing Denied April 25, 1960.

William H. Donham, Little Rock, for appellant.

Ben M. McCray, Benton, Catlett & Henderson, Little Rock, for appellees.

WARD, Justice.

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

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

On November 22, 1954 appellee, Mrs. Sallie Harvey Bingham, purchased 5.6 acres of land abutting Strip No. 1 on the north for which it appears that she paid approximately $5,500. On May 13, 1957 Mrs. Bingham leased the entire 5.6 acres to the Ark-La-Tex Oil Company, a corporation owned wholly by her two sons, for a period of ten years beginning October 1, 1955 with the Lessee having the option to renew for two successive five-year periods. Under the lease Ark-La-Tex Oil Company was to pay $100 per month net rent. Although, as set out above, the lease was actually dated May 13, 1957, we gather from the record that the lease arrangement was actually made in 1955 because the record shows that the Oil Company had already expended approximately $17,000 in the erection of a filling station which was opened for business in October 1955. The Ark-La-Tex Oil Company, also one of the appellees herein, has at all times since the last mentioned date operated the said filling station principally for the sale of oil and gas. Hereinafter we will refer to Mrs. Bingham as the Lessor and to the oil company as the Lessee. When Lessee constructed the filling station it also constructed four concrete driveways connecting the filling station with Strip No. 1.

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

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

In response to appellant's condemnation petition both Lessor and Lessee claimed damages by reason of the last taking by the Commission. After a hearing the jury returned a verdict in favor of Lessee in the amount of $30,000 and in favor of the Lessor in the amount of $9,000, and judgment was rendered accordingly, from which judgments come this appeal. For a reversal appellant relies on five separate points, of which three relate to instructions given to the jury by the trial court, one is related to the introduction of certain testimony to prove the extent of damages, and the other (closely related to the latter point) is stated as follows: 'The court erred in allowing the introduction of estimates of damages based solely on diversion of traffic away from the premises'. Our discussion will be limited primarily to the last mentioned point because we have concluded it contains merit, and because we feel our determination of that issue largely eliminates the necessity of considering the other points.

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

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

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

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

In the case of Greer v. City of Texarkana, 201 Ark. 1041, 147 S.W.2d 1004, 1007, appellant...