Arkansas State Highway Commission v. Arkansas Real Estate Co.

• Decision Date: 18 December 1967
• Docket Number: No. 5--4329,5--4329
• Citation: Arkansas State Highway Commission v. Arkansas Real Estate Co., 421 S.W.2d 882, 243 Ark. 738 (Ark. 1967)
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. ARKANSAS REAL ESTATE COMPANY, Inc., et al., Appellees.
• Court: Arkansas Supreme Court

Page 882

421 S.W.2d 882

243 Ark. 738

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. ARKANSAS REAL ESTATE COMPANY, Inc., et al., Appellees.

No. 5--4329.

Supreme Court of Arkansas.

Dec. 18, 1967.

John R. Thompson and Thomas B. Keys, Little Rock, for appellant.

Moses, McClellan, Arnold, Owen & McDermott and Howell, Price & Worsham, Little Rock, for appellees.

GEORGE ROSE SMITH, Justice.

The appellant brought this suit to condemn a right-of-way in fee simple for a controlled access highway across the appellees' property--a 77-acre tract near East Roosevelt Road in Little Rock. The jury determined just compensation to be $75,000. For reversal the appellant contends that the court erred in refusing two requested instructions and in excluding evidence of the selling price of comparable property in the vicinity.

The plaintiff's Instruction No. 4 and the substance of No. 5 should have been given. The landowners offered much testimony to show damages resulting from the new highway's having cut off their access to a railroad and to a sewer line. Instruction No. 4 would have told the jury, substantially in the language of the statute, that political subdivisions and public utilities might use the highway commission's land for certain enumerated purposes (including the laying of sewers and railways) by agreement with the commission, provided that such uses did not interfere with the public use of the property for highway purposes. Ark.Stat.Ann. § 76--544 (Repl.1957). Counsel for the highway commission were certainly entitled to argue to the jury that the landowner's access to the sewer line and the railroad was not necessarily being irretrievably destroyed.

In defending the court's refusal to give the instruction the appellees merely say that any possible application of the statute was precluded by the highway commission's complaint, which alleged that 'this highway should be a controlled access highway facility * * * and therefore, the owners or occupants of abutting and adjoining lands shall have no right of existing, future, or potential common law or statutory rights of access or ingress and egress to, from, or across this facility to or from abutting and adjoining lands.' We do not so construe the complaint. All that the quoted language refers to is the landowner's ordinary right to enter and leave a public highway that abuts his property. That right does not exist with respect to a controlled access facility. Ark.Stat.Ann. § 76--2202; Arkansas State Highway Comm. v. Bingham, 231 Ark. 934, 333 S.W.2d 728 (1960). It does not follow, however, that the landowner is also denied the benefit of Section 76--544, supra, which, like the controlled access statute, was passed by the 1953 legislature. There is no conflict between the two acts.

Requested Instruction No. 5 defined a controlled access highway, in the language of the statute, and went on to say that the highway had been constructed in accordance with certain plans on file with the highway department and that if the commission should in the future change the highway in such a way as to damage the landowners, then the landowners would have a new cause of...