Arkansas State Highway Commission v. Palmer

• Decision Date: 09 November 1953
• Docket Number: No. 5-201,5-201
• Citation: 222 Ark. 603,261 S.W.2d 772
• Parties: ARKANSAS STATE HIGHWAY COMMISSION v. PALMER et al.
• Court: Arkansas Supreme Court

Page 772

261 S.W.2d 772

222 Ark. 603

ARKANSAS STATE HIGHWAY COMMISSION v. PALMER et al.

No. 5-201.

Supreme Court of Arkansas.

Nov. 9, 1953.

W. R. Thrasher and William L. Terry, Little Rock, John L. Hughes, Benton, for appellant.

Ben M. McCray, Benton, for appellees.

HOLT, Justice.

September 10, 1951, the Arkansas State Highway Commission, proceeding under § 76-510, Ark.Stats. 1947, by its petition, called upon the Saline County Court for an order condemning a right of way over certain land of appellees in that county. Thereafter, on August 7, 1952, the Saline County Court made and entered its condemnation order as requested by the Highway Commission. Appellees' land was physically entered and the roadbed constructed by the Highway Department pursuant to this order.

At this point, appellees filed claim for damages in the County Court against both the Highway Commission and Saline County. Their claim was allowed by the County Court against both the Highway Commission and the county, in the amount of $490.50.

Appellees duly appealed to the Saline Circuit Court and appellant, Highway Commission, demurred to the appeal on the ground that it was, in effect, a suit against the State of Arkansas over which the Circuit Court had no jurisdiction. This demurrer was overruled December 8, 1952 and exception properly saved by appellant, Highway Commission.

A jury trial followed on December 9, 1952, which resulted in a verdict for appellees in the amount of $6,000 against both the Arkansas State Highway Commission and Saline County. Thereafter, on December 22, 1952, the Highway Commission filed motion for a new trial and on March 10, 1953, within the same term of court, the trial court heard and overruled this motion. Saline County did not file a motion for a new trial. The State Highway Commission alone has appealed.

For reversal, the Highway Commission argues that the trial court erred in overruling its demurrer. We agree. This demurrer alleged: '1. That the defendant, Arkansas State Highway Commission, is a part of the Government of the State of Arkansas. 2. That the appeal of plaintiff constitutes a suit against the State of Arkansas. 3. That this court (Circuit Court) is without jurisdiction to hear and determine a suit against the State of Arkansas.'

The judgment here was against the Highway Commission, a State agency, and was, in effect, a judgment against the State and could not be maintained in the circumstances. Arkansas State Highway Commission v. Nelson Brothers, 191 Ark. 629, 87 S.W.2d 394; Federal Land Bank of St. Louis v. Arkansas State Highway Commission, 194 Ark. 616, 108 S.W.2d 1077.

Section 76-510, above, provides: 'Assistance of county court to widen or straighten road.--The State Highway Commission may call upon the county court to change or widen, in the manner provided by section 5249 of Crawford & Moses' Digest (§ 76-917), any State Highway in the county where the State Highway Engineer deems it necessary, for the purpose of constructing, improving or maintaining the road. In the event the county court should refuse to widen the road as requested, the Commission may refuse to construct, improve or maintain that portion of the road until a suitable right-of-way is provided. (Acts 1929, No. 65, § 55, p. 264; Pope's Dig., § 6905)', and § 76-511 provides:

'Procurement of right of way after refusal by county court.--Where the State Highway Commission petitions any county court asking for right of way for any state highway, and where the county court fails to grant such petition and make court order procuring such right of way within sixty days after such petition is presented, then the highway commission may take such steps as they deem expedient to acquire such right of way, either by purchase, exercise of their right of eminent domain, or otherwise; and in such event, one-half of the cost of acquiring such right of way shall be deducted from the next payment due any county by reason of any appropriation out of the State Highway Fund or State Revenue from gasoline (motor vehicle fuel) or auto license tax to the county or county highway fund of such county. (Acts 1929, No. 205, § 2, p. 1015; Pope's Dig., § 6963; Acts 1941, No. 281, § 1, p. 732.)'

These sections set forth two alternative methods by which rights of way might be acquired. The first method, § 76-510, gives the Highway Commission the authority to call upon the county court to change or widen any state highway where deemed necessary by the State Highway Engineer. The statute further provides that if the county court should refuse, the Commission could then refuse to construct, improve or maintain the road 'until a suitable right-of-way is provided.'

The second method, § 76-511, provides that where the Highway Commission petitions the county court asking for right of way for a state highway, and the county court fails to grant the petition within sixty days, then the Highway Commission itself can acquire the right of way, by purchase, eminent domain or otherwise, and in such event the Highway Commission can deduct one-half the cost from the county's next turnback fund.

Here, the Highway Commission proceeded under the first method, § 76-510. The County Court, acting within its power, did not refuse the request of the Highway Commission, but granted its petition, furnished the right of way, and properly entered its order condemning appellees' land, and, by so doing, the county became liable for all damages for such taking, § 76-510.

In the case of Ross v. State Highway Commission, 184 Ark. 610, 43 S.W.2d 75, 76, we said:

'It may be first said that the county had power and authority to condemn and pay for the right of way at its own expense, even though the road to be improved was a part of the state's highway system. It was so expressly decided in the case of England v. State Highway Commission, 177 Ark. 157, 6 S.W.2d 23. See, also, other cases there cited. In such a proceeding, the county would be liable for any damage then or...