Arkansas State Highway Commission v. Bush, 4-5078.

• Decision Date: 28 March 1938
• Docket Number: No. 4-5078.,4-5078.
• Citation: 114 S.W.2d 1061
• Parties: ARKANSAS STATE HIGHWAY COMMISSION v. BUSH, Judge.
• Court: Arkansas Supreme Court

114 S.W.2d 1061

ARKANSAS STATE HIGHWAY COMMISSION v. BUSH, Judge.

No. 4-5078.

Supreme Court of Arkansas.

March 28, 1938.

Petition by the Arkansas State Highway Commission for a writ of prohibition to prevent the Honorable Dexter Bush, Judge of the Lafayette Circuit Court, from proceeding further with interventions and cross-complaints in highway condemnation proceedings.

Writ granted.

Hernn Northcutt, of Little Rock, for petitioner.

W. D. Kelly, of Stamps, and Andrew R. Cheatham, of Texarkana, for respondent.

DONHAM, Justice.

In July, 1936, the Arkansas State Highway Commission was engaged in rebuilding a portion of state highway 82 in Lafayette county, Ark.; and as a part of the work of rebuilding said highway was engaged in constructing a railroad overpass in the town of Stamps in said county. It became necessary to acquire easements over certain private property; and the commission, being unable to agree with the owners thereof upon the extent of the damages, filed its petition in the Lafayette circuit court to condemn the property, naming the owners thereof as defendants. The petition set forth the public nature of the undertaking and the necessity of acquiring rights-of-way across the lands of the defendants, and further set forth that the determination of the amount of the damages to be incurred by the defendants would retard the progress of construction, and prayed an order allowing it to deposit a sum of money in the registry of the court from which the damages of the defendants could be paid. The commission further prayed that upon such deposit being made it be allowed to enter upon the lands of the defendants for the public purposes announced; and that, upon final payment of the damages awarded to the defendants, the commission's right to use the property be quieted.

The condemnation order was duly granted; and on August 4, 1937, the court found that the sum of $4,000 should be deposited for the use and benefit of the defendants, and that upon such deposit being made the right of entry upon the premises of the defendants was granted to the Highway Commission, and the defendants were enjoined from interfering with the work which the commission was undertaking to perform.

The damages of the defendants named in the original suit were duly adjudicated and are not in issue here; but on later dates certain parties, to wit, Mrs. M. J. Bourland, et al., as heirs of the M. J. Bourland estate; the trustees of the M. E. Church South; Mrs. Ollie Pullig, administratrix, and John Riggins, none of whom were defendants in the condemnation suit, filed separate answers and cross-complaints in which it was alleged that they were the owners of certain property which had been damaged in the construction of the project initiated by the condemnation suit; and each prayed judgment against the Arkansas State Highway Commission for an amount of damages alleged to have been sustained by reason of the construction project.

To these interventions, answers, and cross-complaints the petitioner herein filed its demurrers, alleging as a ground therefor that such cross-complaints and interventions constituted suits against the state, and that the court was without jurisdiction to hear and determine suits against the state.

The Lafayette circuit court, to which the demurrers were addressed, overruled them. Whereupon, the commission presented its petition to this court for a writ of prohibition to prevent the Honorable Dexter Bush, judge of said court, from proceeding further with the interventions and cross-complaints of the parties hereinabove named, for the reason that said court is without jurisdiction to further entertain such interventions and cross-complaints. The request for a final writ of prohibition is now before the court.

The case of Arkansas State Highway Commission v. Kincannon, Judge, 193 Ark. 450, 100 S.W.2d 969, 970, presented a situation in no respect materially different from that with which the court is confronted in the instant case. In the Kincannon Case the proceeding arose out of an intervention filed by certain property owners in a case pending in the Crawford circuit court, wherein the State Highway Commission sought to condemn certain property in the city of Van Buren, which property was required...