Arkansas State Highway Commission v. Marshall

• Decision Date: 09 October 1972
• Docket Number: No. 5--5989,5--5989
• Citation: Arkansas State Highway Commission v. Marshall, 485 S.W.2d 740, 253 Ark. 212 (Ark. 1972)
• Court: Arkansas Supreme Court
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. James C. MARSHALL and Frances Marshall, Appellees.

Page 740

485 S.W.2d 740

253 Ark. 212

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. James C. MARSHALL and Frances Marshall, Appellees.

No. 5--5989.

Supreme Court of Arkansas.

Oct. 9, 1972.

Rehearing Denied Nov. 13, 1972.

Thomas B. Keys and James N. Dowell, Little Rock, for appellant.

Charles A. Walls, Jr., Lonoke, for appellees.

HOLT, Justice.

Appellant instituted this eminent domain action for the acquisition of lands needed for the construction of a controlled-access highway facility. Appellant acquired 31.7 acres in fee from appellees' 60 acre tract of land leaving them four residuals of 5 to 15 acres each. Appellees' acreage consisted of lands which were either inside or adjacent to the city limits of Ward, Arkansas. Their lands fronted on both sides of a county road for approximately 2,000 feet. Appellees sought $42.125 as compensation for their estimated damages. The jury awarded $30,000. On appeal the appellant first contends for reversal of the judgment that the trial court erred in refusing to strike the after-the-taking value testimony of the landowners' expert witness, Lloyd Pearce, who based his opinion upon the assumption that by the condemnation in fee the condemnor acquired the right to completely prohibit access to and from the remainder of the abutting lands of the landowners. We find this contention untenable.

In its complaint, appellant alleges that it was necessary in the taking of said lands (for a controlled-access facility as defined by Act 383 of 1953) that the 'rights or easements of access and ingress and egress thereto and therefrom be condemned by order of this court and title in fee to said lands be vested' in the appellant. The prayer of the complaint is that 'all existing, future and potential common law or statutory rights or easements of access or ingress and egress to, from and across the described property to and from adjoining and abutting lands (be) condemned and extinguished under the power of eminent domain,' reserving to the present and future owners or occupants of abutting and adjoining lands rights of access as may be prescribed under the provisions of Act 383 of 1953; further, that just compensation be ascertained and awarded to appellees for the condemnation for the taking of their lands and all access rights. The appellees propounded to the appellant interrogatories among which the inquiry was specifically made as to the extent of the taking by the appellant. In response, appellant merely replied that it was condemning the lands in fee. Any inference of an intention to reserve any rights to the landowner here, attributable to any indefinite language of the complaint and answer to the interrogatory on the subject, is eradicated by the Declaration of Taking filed contemporaneously with the complaint. In clear and definite language, the appellant declared that it was completely taking all rights of access, ingress and egress to appellees' lands. In other words, the taking was unlimited. The proof was to this effect. In fact, one of appellant's witnesses, who is knowledgable with respect to appellant's driveway permit requirements, testified that the landowner of abutting lands does not have any right of access to a highway (owned in fee or easement by appellant) without first filing a request and having that request approved by the appellant and that a permit once issued could be revoked if found necessary by the appellant. Also, the judgment recites that the compensation awarded to appellees included 'all rights of ingress, egress and access to the condemned lands.' We hold that the trial court correctly permitted the value witness, Pearce, to testify he took into consideration that the fee simple taking of appellees' lands is a factor which would reduce the market value of their lands because it would reasonably be expected to affect and impair the unrestricted right of the landowners' ingress and egress to his abutting residuals. This is permissible without ascribing a monetary value to this factor. We specifically approved this method of appraisal in Arkansas State Highway Comm'n v. Wallace, 247 Ark. 157, 444 S.W.2d 685 (1969), and adhered to our view in Arkansas State Highway Comm'n v. Wallace, 249 Ark. 303, 459 S.W.2d 812 (1970). In the first case we pointed out that under the terms of Ark.Stat.Ann. § 76--532 (Repl.1957), the landowner's 'unfettered' access would be subordinate to certain uses made of right-of-way taken in fee simple, and that the nature of the owner's access might be substantially impaired; that under § 76--548 (Repl.1957) the owner from whom the property was taken in fee simple had no right of reversion and might find the right-of-way abandoned and sold to another owner; and that the 'predominate' control of all lands within the right-of-way was in the Arkansas State Highway Commission. In the second case, we held that the lessened accessibility from one side to another of the severed property was a compensable element of damages and adhered to our holding in the first case. Again, we reiterate that the taking in fee, as in the case at bar, subordinates all rights of the landowner to the predominate control of all the lands within the right-of-way acquired by the appellant.

The mere fact that a fee simple title to lands is taken does not necessarily constitute a taking of the abutting owners' rights. We have previously recognized that a right of the abutting owner to access, ingress and egress is an easement which exists as fully when the fee title to lands is in the public as when it is in private ownership. Arkansas State Highway Comm'n v. Kesner, 239 Ark. 270, 388 S.W.2d 905 (1965). There we further recognized that the right of access is a property right for 'which the owner cannot be deprived without just compensation.' See, also, 2A Nichols on Eminent Domain, Third Edition, 243 § 6.4442...