Board of Directors of St. Francis Levee District v. Redditt

• Citation: 95 S.W. 482,79 Ark. 154
• Parties: BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DISTRICT v. REDDITT
• Decision Date: 28 May 1906
• Court: Supreme Court of Arkansas

95 S.W. 482

79 Ark. 154

BOARD OF DIRECTORS OF ST. FRANCIS LEVEE DISTRICT v. REDDITT

Supreme Court of Arkansas

May 28, 1906

Appeal from Crittenden Circuit Court; Allen Hughes, Judge; reversed.

Reversed and remanded.

H. F Roleson, for appellants.

1. It was error to permit the witness to testify to the value of the lands without first qualifying by showing his knowledge of market values. 51 Ark. 329; Lewis on Em. Dom. § 436. And to permit testimony as to the difference in profit from renting land and hiring the same cultivated. 1 Greenleaf, Ev (16 Ed.), § § 430 I, 441 B; 59 Ark. 105. It was further error to permit testimony by the witness that the land overflowed three times in 1903, and had never known it to be overflowed three times in one year before the building of the levee. There was no testimony raising a presumption that such overflows would ever recur. 56 Ark. 612. It was a question for expert testimony, and even expert witnesses are not permitted to express mere conjecture. 90 Am. Dec. 181; 21 A. 555; 28 Am. St. Rep. 219; 37 Barb. 270; 58 N.Y.S. 467.

2. Appellants contend that plaintiff is not entitled to compensation for damages to lands not taken, but left outside the levee. She is not entitled to recover for incidental injuries to her land by reason of it being left outside the levee. 9 Otto, 635 (25 Law. Ed. 336); 62 Miss. 807; 23 N.Y 42; 12 Mo. 417; 55 Mo. 119; 166 U.S. 269; 160 U.S. 452.

3. The case should have been dismissed because of the appeal from the county court then pending. Kirby's Digest, § § 4944, 4945.

R. G. Brown, for appellee.

1. It requires no technical knowledge to value farming lands with which one is familiar from long use and occupation. A farmer may state the value of farm lands with which he is acquainted. 17 Cyc. 119, and cases cited; 76 Miss. 641; 2 L. R. A. 221; 90 Mass. 348.

2. Under the laws of this State, payment of damages to the owner of the land, or a deposit of money for him, is a condition precedent to any right to take possession of his land. Art. 2, § 22, Const.; art 12 § 9, Ib.

3. Appellee is entitled to compensation for damages to her land outside of the levee. 52 Ark. 330; 59 Ark. 171; 35 Ark. 353; 43 Ark. 121; 41 Ark. 210; 45 Ark. 436; 1 Ark. 264; 77 Miss. 533; 13 How. 166.

4. Appellee had a right to maintain this action. Kirby's Digest, § 2903. The damages assessed shall be paid to the owner or deposited with the county treasurer for him. Kirby's Digest, § 4945. The complaint alleges this was never done. The statute does not provide within what time this deposit shall be made, but decisions in similar cases uniformly hold that it must be done before possession of the land is taken. A similar statute regarding condemnations by railroads requires the deposit to be made within 30 days after the award. Kirby's Digest, § 2957.

HILL, C. J. Mr. Justice WOOD, dissents.

OPINION

HILL, C. J.

This is an appeal from an action brought in Crittenden Circuit Court by Mrs. Redditt, a landowner, against the levee district for appropriating her land for the construction of a levee across it, and for damages, compensatory and punitive, for its actions in the premises. The punitive damages were either not insisted upon or ruled against in the lower court, and nothing appears touching that subject beyond the allegations of the complaint.

The verdict rendered was as follows: "We, the jury, find for plaintiff, and assess the damage at $ 3,000 (three thousand dollars,) of which $ 1,787.50 is for peculiar injury to the lands outside the levee caused by the raising of the water on it, lengthening the period of overflow and leaving deposits of sand thereon."

The allegations of the complaint and the evidence show that the remainder of the verdict, $ 1,212.50, was for actual land taken, houses and crops destroyed and other items of actual damage incident to the construction of the levee.

The complaint alleged that the levee district had filed its petition in the county court of Crittenden County for the condemnation of a right of way over this land, and obtained the appointment of a jury of view, who viewed the land and located the right of way and assessed damages to plaintiff therefor. The complaint further alleged that the report of the jury of view was confirmed by the county court, and that the levee district, without having tendered to plaintiff or deposited with the county treasurer the amount of the award, appealed from the judgment rendered upon said award, and shortly thereafter entered upon the land illegally and appropriated that which had been condemned by the jury of view, and constructed a high levee thereupon, and for the appropriation and consequent injuries the complaint asked damages, setting forth particularly the elements thereof. The levee district, inter alia, pleaded in bar of the maintenance of this action the proceeding begun in the county court which terminated in a judgment therein, and from which the levee district appealed to the circuit court, which was then pending therein. During the trial the levee district offered in evidence a certified copy of the judgment of the county court, the court refused to admit this evidence, and this is one of the errors assigned. The offered evidence showed the proceeding of the jury of view, the description of the land taken and the various items allowed for damages aggregating $ 1,466, and a judgment was entered thereupon that the levee district have and recover the lands described, and that Mrs. Redditt have and recover the sum found, "and the plaintiff prays an appeal to the circuit court, which is granted." And it was admitted in open court that this order had been duly perfected, and the proceeding was then pending in the circuit court.

The question confronting appellee at the threshold of this hearing is whether her suit could be maintained while the appeal of the levee district from the condemnation proceedings in the county court was pending for hearing in the circuit court.

Appellee seeks to justify the new action upon this theory: that property shall not be appropriated for public purposes until full compensation shall be first made to the owner in money or first secured to her by a deposit of money, etc. (Const., art. 12, § 9), and that therefore this appropriation of her land, without first paying or securing in money therefor, was a trespass, pure and simple, and she could maintain an action for trespass therefor; and furthermore she contends that section 2957, Kirby's Digest, providing in case of condemnation by railroads and telephone and telegraph lines, where the company does not pay or deposit the amount required to be deposited by the court or judge under section 2955 within thirty days, that it shall forfeit its rights in the premises, applies here, and a failure to deposit the amount of award of the jury of view prior to appropriating the land rendered the proceedings void, and forfeited the rights of the district to take the land under that proceeding. The act creating this levee district provided that where it failed to obtain a relinquishment of right of way it shall proceed "as provided by law of this State in similar cases." Act February 15, 1893, § 19. At that time there was upon the statute books the act of 1879, providing for condemnation proceedings by levee boards, which is sections 4944, 4945, Kirby's Digest. This is evidently the act contemplated, as none of the other eminent domain proceedings are "similar cases." This statute authorizes boards of directors of levee districts to appear in the county court and cause a jury of twelve landowners to view and well and truly assess the...