Arkansas State Highway Commission v. Kincannon, 4-4606.
| Decision Date | 18 January 1937 |
| Docket Number | No. 4-4606.,4-4606. |
| Citation | 100 S.W.2d 969 |
| Parties | ARKANSAS STATE HIGHWAY COMMISSION v. KINCANNON, Judge. |
| Court | Arkansas Supreme Court |
Original proceedings by the Arkansas State Highway Commission for a writ of prohibition to be directed to the Honorable J. O. Kincannon, Judge of the Crawford County Circuit Court.
Writ issued.
Carl E. Bailey, Atty. Gen., Thomas Fitzhugh, Asst. Atty. Gen., and Neill Bohlinger, of Little Rock, for petitioner.
Rains & Rains, of Van Buren, for respondent.
This proceeding arises out of an intervention filed by certain property owners in a case now pending in the Crawford circuit court wherein the State Highway Commission seeks to condemn certain property in the city of Van Buren required by the commission in the construction of a railroad overpass. The facts in relation thereto are fully stated in the opinion delivered February 3, 1936, in the case of Arkansas State Highway Commission v. Partain (Ark.) 90 S.W.(2d) 968, and need not be here repeated.
In that case we affirmed the decree of the chancery court enjoining the Highway Commission from taking or damaging the property of the protesting landowners until their damages had first been paid or until there should have been deposited, subject to the orders of the court, a sum of money adjudged, as a preliminary matter, to be sufficient to pay such damages, when they had been ascertained. We there said that, if such a deposit were made, the commission might proceed with the construction of the improvement.
Pursuant to that opinion the circuit court in which the condemnation proceeding is pending entered an order that the Highway Commission "deposit in the registry of the court the sum of $15,000.00, to be held by the Clerk of this court pending the final determination of the damages sustained by the defendant property owners." The deposit thus required has been made.
Later certain other owners of property filed an intervention, in which they alleged that the construction of the overpass would damage their property. They prayed that their damages be adjudged and be ordered paid out of this deposit.
The Highway Commission filed a motion to dismiss the intervention, and, upon that motion being overruled, application has been made here for a writ prohibiting its further hearing.
The Highway Commission has taken no action in regard to the condemnation of property belonging to interveners, and their intervention is, in effect, a suit against the state, which, upon the authority of Arkansas State Highway Commission v. Nelson Bros., 191 Ark. 629, 87 S.W.(2d) 394, cannot be maintained. State...
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...191 Ark. 629, 87 S.W.2d 394, and has remained so continuously. It was extended to eminent domain actions by Arkansas State Highway Com'n., v. Kincannon, 193 Ark. 450, 100 S.W.2d 969. The continuous emphasis placed upon the posture of the commission is illustrated in the following unbroken l......
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