Arkansas State Highway Commission v. French, 5--4875

• Decision Date: 14 April 1969
• Docket Number: No. 5--4875,5--4875
• Citation: 439 S.W.2d 276,246 Ark. 665
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. T. Q. FRENCH, Appellee.
• Court: Arkansas Supreme Court

Page 276

439 S.W.2d 276

246 Ark. 665

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. T. Q. FRENCH, Appellee.

No. 5--4875.

Supreme Court of Arkansas.

April 14, 1969.

Thomas B. Keys and Virginia Tackett, Little Rock, for appellant.

Guy H. Jones and Phil Stratton, Conway, for appellee.

BYRD, Justice.

The Arkansas State Highway Commission appeals from a Chancery Court order holding that appellee T. Q. French is the owner of a strip of land 10 feet in width, adjacent to the east side of Highway 65 in the town of Bee Branch, Arkansas. The Highway Department claims the land by virtue of a 1928 county court condemnation order fixing the right of way 40 feet in width either side of a center line. For reversal, the Highway Department relies upon the following points:

1. The trial court erred in not dismissing French's injunction action because the undisputed testimony showed that he had knowledge of the Highway Department's claim for more than one year (Ark.Stat.Ann. § 76--917);

2. The trial court was in error in ruling that French had no notice of the taking by the county court order;

3. The trial court erred in ruling that French was not estopped by his acquiescence and actions indicating acquiescence in the state's claim to the strip of ground upon which the state acted to its detriment in letting a contract for construction.

The record shows that subsequent to the county court condemnation order the Highway Department graded and graveled Highway 65 through Bee Branch, pursuant to job no. 843. Sheets no. 8 and 9 of the plans for job no. 843 show a right of way 40 feet in width either side of a center line up to station 608 and 30 feet either side of a center line from station 608 to approximately station 623 plus 88.7. Quitman Road is shown as being at station 610 and the post office, at that time, as being between stations 615 and 620. French's store is between station 608 and the post office. The paving of Highway 65 in Bee Branch was done in 1934, job no. 8178. Sheet no. 23 of job no. 8178 shows right of way 40 feet in width either side of a center line up to station 608. The right of way from station 608, to the post office, the latter being at station 619 26.8, is shown as being 30 feet either side of a center line except for the portion immediately in front of the post office which is shown as being 26 feet west of the center line. The latter sheet also shows that the pumps on the G. W. French filling station are located on the highway right of way as drawn by the plan.

Thomas Q. French testified that he was 64 years of age and that he was working for his father when Highway 65 was put through in 1928--that his father had been in business there ever since 1900 and that the gasoline pumps were put in before the highway was graveled. According to Mr. French there was an existing road through the town of Bee Branch at the time the highway was graveled in '28. Following the paving of the road in 1933 or '34, he built a concrete apron in 1938 out to the roadway. About a year before the filing of the suit the highway department notified him that his pumps were on the right of way and requested him to move the same. In answer to questions by the court he testified as follows:

'Q. Now you have stated that Mr. Elledge's letter to you dated June 19, 1967 represented substantially what you and he had discussed, you did then at one time agree with him that you would move these two independent pumps farther east?

'A. I told him I would, but I never did say when, I didn't tell him exactly when.

'Q. Did that have anything to do with one of the inducements for the Highway Department to make a decision to keep the Highway going through town rather than having it bypass town?

'A. You mean--

'Q. Was that an inducement to the Highway Department to help them decide to go through town?

'A. Not at that time, they had already decided.

'Q. Well, what did you imply by your agreement with the Highway Department that you would move these two pumps east? What were your intentions about it?

'A. Well, I was trying to hold them there and see what I could do. I didn't know whether they owned the right of way they were talking about and I finally checked that they didn't.'

Mr. French said he did not know about the county court condemnation order until two months before the trial nor was he aware of any entry after having been made on his property.

Witnesses on behalf of the Highway Department testified that Mr. French had promised to move the pumps and that in reliance thereon they let a contract to McGeorge Construction Company in which they obligated federal funds, after certifying that the right of way had been cleared of all obstructions. The State's witnesses did not contend that notices had been served in connection with the entry of the county court condemnation order or that claims for compensation had been filed by Mr. French or his father, a predecessor in title. These witnesses also testified that the highway was originally programed to bypass Bee Branch but, at the request of the citizenry through appellee's present counsel, then an employee of the Highway Department, a meeting was held at Bee Branch. At that time the Highway Director explained that the only way the highway could be changed to come through Bee Branch was for the people to pay for the removal of all utilities, buildings and all right of way. Following that meeting, however, the Highway Department worked out an arrangement whereby the highway would go through Bee Branch and all the additional right of way required for the construction would be taken from the west side of the highway. Pursuant to this plan, an additional 20 feet was acquired on the west side of the highway and the Highway Department admittedly paid for acquisition of this property and removal of the obstructions therefrom.

Subsequently another meeting was held between Mr. French and Mr. Gray, an employee of the Highway Department, at the home of Hulen McKim. Mr. McKim says that the discussions centered around a service station on the west side of the road belonging to...