Arkansas State Highway Commission v. Staples

• Decision Date: 12 April 1965
• Docket Number: No. 5-3528,5-3528
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. D. L. STAPLES, Jr., et al., Appellees.
• Court: Arkansas Supreme Court

Page 432

389 S.W.2d 432

239 Ark. 290

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. D. L. STAPLES, Jr., et al., Appellees.

No. 5-3528.

Supreme Court of Arkansas.

April 12, 1965.

Rehearing Denied May 17, 1965.

Mark E. Woolsey and Don Gillaspie, Little Rock, for appellant.

Spencer & Spencer, E. Dorado, for appellees.

ROBINSON, Justice.

The issue here is the correct location of the right-of-way of U. S. Highway 167 at a point where it joins about two acres of land belonging to appellees, D. L. Staples, Jr. and Nettie Lou Staples. The highway runs northeast and southwest at the place involved, but for convenience, we refer to the side on which appellees' property, involved here, is located as the east side, and the opposite side as the west.

The appellant, Arkansas State Highway Commission, contends that the right-of-way extends 60 feet on each side of the centerline of the paved portion of the highway. Appellees maintain that the right-of-way extends only about 48 feet on the east side thereof where it joins appellees' property. A strip of ground about 12 feet wide is in dispute. Appellees contend that the Highway Commission has no record title to any portion of the right-of-way, but only owns by prescription an easement over that portion of the right-of-way which it has used and maintained, such portion extending about 48 feet from the centerline.

Appellees filed this suit to enjoin the Highway Commission from constructing traffic control islands on the strip in dispute. The appellant made a deposit to indemnify appellees for any damages they might sustain, and proceeded to construct the traffic islands. Upon a trial in the Chancery Court there was a decree for appellees in the sum of $2,500 as damages, and the Highway Commission has appealed.

We have reached the conclusion that the strip in controversy is a part of the highway right-of-way. The land in question is located in Union County. In 1929 the land on which the right-of-way is located belonged to Mrs. Hazel Hartje. That year the County Judge made an order condemning for highway purposes a strip of land 120 feet wide on which to build a completely new highway. The court order is ambiguous; it describes a strip of ground, at least a portion of which is about 450 feet west of the right-of-way on which the road was constructed in 1930. But anyone who had taken the trouble to examine the court order in 1929 or 1930 would have had no difficulty in locating the new right-of-way. The order provides: 'Beginning at Survey Station 0/00 located in the S.E. 1/4 of N.W. 1/4 of Section 16, T. 16 S., R. 14 W., and being Station 539/86.28 on the El Dorado-Calion Road, * * *.'

The beginning of the new road was at Station 0/00, located in the center of the existing gravel road known as the Calion-Hampton Road. After entry of the court order, the Highway Department proceeded to build the new road. The new right-of-way was cut through the woods; the timber had to be cut and the stumps grubbed. The contract for the new road called for clearing and grubbing. The contractor's estimate #4 showed the clearing and grubbing was 90% complete; estimate #8 showed the clearing and grubbing was 100% complete. Of course, anyone could look at the land and see where the right-of-way was located. Mr. C. M. Matthews, who was working for the Highway Department in 1930 when the new road was under construction, testified:

'Q: After the highway was cleared, was it possible to look down and see where the highway was going to be on the ground?

'A: Yes.

'Q: And that was completed prior to July 30, or July 20, 1930, is that correct?

'A: That's correct.'

Mrs. Hazel Hartje, owner of the land on which the right-of-way was cleared, which is the land now in controversy, filed a claim for $75.00. On August 1, 1930, the claim was allowed; on August 7, 1930, it was paid. Mrs. Hartje accepted it. The doctrine of res judicata applies. If property of Mrs. Hartje was taken in clearing the right of way that was not included in the order of the taking she should have included a claim for the taking of such property at the time she was paid the $75.00. In Olmstead v. Rosedale Building & Supply et al., 229 Ark. 61, 313 S.W.2d 235, we quoted from Robertson v. Evans, 180 Ark. 420, 21 S.W.2d 610, as follows: 'The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parti...