Brooksher v. Jones

Decision Date01 February 1965
Docket NumberNo. 5-3440,5-3440
Citation386 S.W.2d 253,238 Ark. 1005
PartiesRobert R. BROOKSHER et al., Appellants, v. Buck JONES et al., Appellees.
CourtArkansas Supreme Court

Harper, Harper, Young & Durden, Ft. Smith, for appellants.

Hardin, Barton, Hardin & Jesson, Ft. Smith, for appellee.

WARD, Justice.

This appeal deals with the power of a city to vacate or close a portion of a street under the facts here involved.

On March 15, 1963 the City Commissioners of Fort Smith (hereinafter referred to as the Commission) passed Ordinance No. 2399, the principal effect of which would have been to vacate a portion of Birnie Avenue and grant Safeway Stores, Inc. the exclusive right to occupy the vacated portion.

A few days after passage of said ordinance Buck Jones, a citizen and taxpayer of Fort Smith, filed a complaint against the Commission (suit No. 1785) alleging in substance that many persons are still using said avenue and have been doing so continuously for the past five years, and that the attempt to close the street was contrary to law. The prayer was to enjoin the Commission from vacating said portion of the avenue. To the above complaint the Commission filed a demurrer and also an answer, contending they had a legal right to vacate a portion of said avenue under Ark.Stat.Ann. § 19-2304 (Repl.1956) which is Section 3 of Act No. 67 of 1885. They also denied all material allegations in the complaint and asked for a dismissal of the complaint.

On April 9, 1963 eighteen other citizens and taxpayers of Fort Smith filed a similar suit (No. 1837) against the Commission, alleging that they were owners of property located on said avenue; that the said avenue had been continuously open to, and used by, the public for travel for more than twenty years; that the portion to be closed was 'necessary and vital for corporate purposes and for the public interest and welfare'; and, that the Commission acted arbitrarily and unreasonably in passing said ordinance, and that it had no power or authority to do so. They prayed that the ordinance be declared illegal and void and that the Commission be enjoined from vacating said portion of the avenue. The Commission entered a general denial, and later by order of the court the two suits were consolidated for trial.

All parties moved for a summary judgment pursuant to Act No. 123 of 1961--Ark.Stat.Ann. § 29-211 (Repl.1962), and the matter was accordingly submitted to the trial court on three affidavits filed by the plaintiffs. No affidavit was filed by the Commission.

The trial court prepared a full and comprehensive written opinion and then entered a decree enjoining the Commission from enforcing Ordinance No. 2399 and declaring the ordinance to be null and void. For a reversal of the decree appellant (the Commission) prosecutes this appeal, contending:

'The lower Court erred in finding and holding that Section 19-2304, Ark.Stats.1947, was repealed by Section 19-3825; in granting appellees' motion for summary judgment and in failing to grant appellants' motion for summary judgment.'

We have concluded the trial court must be affirmed in enjoining the Commission from enforcing Ordinance No. 2399.

Although it is not material to this opinion, we do not agree that § 19-2304 has been repealed by § 19-3825. See: Gernauskas v. Fletcher, 211 Ark. 678, 201 S.W.2d 999. A careful study of § 19-2304 reveals no authority for the Commission, under the undisputed facts set forth in the affidavits, to vacate and close a portion of Birnie Avenue 'for the purpose of allowing Safeway Stores, Incorporated * * * to build, construct and own buildings and other improvements * * *' over and across the designated portion of Birnie Avenue. (Quotes are from the ordinance.) As we interpret § 19-2304, before a city can have the right and power to vacate or lease out a portion...

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5 cases
  • City of Little Rock v. Linn
    • United States
    • Arkansas Supreme Court
    • September 30, 1968
    ...on the conflicting testimony on this point is against the preponderance of the evidence. Appellees rely heavily upon Brooksher v. Jones, 238 Ark. 1005, 386 S.W.2d 253. That case is easily distinguished from this. The only finding as to basis for the closing made by the city commission was t......
  • Freeze v. Jones
    • United States
    • Arkansas Supreme Court
    • July 12, 1976 enjoin the closing of the street, alleging that the ordinance violated Ark.Stat.Ann. § 19--3825 (Repl.1968) and that Brooksher v. Jones, 238 Ark. 1005, 386 S.W.2d 253 barred the closing of this portion of the street, as res judicata. Appellee Harvel was added as a plaintiff by an amended......
  • Kemp v. Simmons, 5--4581
    • United States
    • Arkansas Supreme Court
    • May 27, 1968
    ...on this appeal. Appellants rely on the decisions of this court in Texarkana v. Leach, 66 Ark. 40, 48 S.W. 807, and Brooksher v. Jones, 238 Ark. 1005, 386 S.W.2d 253. The facts in both of these cases readily distinguish them from the case at bar. In the Leach case the street was being abando......
  • Riley v. Town of Higginson
    • United States
    • Arkansas Court of Appeals
    • April 15, 2009
    ...supreme court has held that a city's power to vacate a street under § 14-54-104 is not affected by § 14-301-301. See Brooksher v. Jones, 238 Ark. 1005, 386 S.W.2d 253 (1965). Additionally, the supreme court has held that § 14-301-303 did not repeal a city's power under § 14-54-104 to close ......
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