Buffalo v. Arkansas State Highway Commission

• Decision Date: 30 March 1970
• Docket Number: No. 5--5206,5--5206
• Citation: 248 Ark. 406,451 S.W.2d 737
• Parties: Cecil M. BUFFALO, Sr., Appellant, v. ARKANSAS STATE HIGHWAY COMMISSION et al., Appellees.
• Court: Arkansas Supreme Court

Page 737

451 S.W.2d 737

248 Ark. 406

Cecil M. BUFFALO, Sr., Appellant, v. ARKANSAS STATE HIGHWAY COMMISSION et al., Appellees.

No. 5--5206.

Supreme Court of Arkansas.

March 30, 1970.

Stubblefield & Matthews, Little Rock, for appellant.

Thomas B. Keys and Billy Pease and Hubert E. Graves, Little Rock, for appellees.

JONES, Justice.

This is an appeal by Cecil M. Buffalo, Sr., from a decree and order of the Pulaski County Chancery Court requiring him to remove an advertising sign he erected on the right-of-way of state Highway 338, and dismissing his cross-complaint against third parties seeking removal of an additional encroachment by the third party cross defendants. Buffalo has designated the points he relies on for reversal as follows:

'The sign of the appellant is authorized, reasonable and necessary for the conduct of appellant's business.

The state highway department's assumption of Baseline Road into the state highway system as state Highway No. 338 neither revoked the original authorization for the encroachment nor changed its reasonable or necessary character.

The encroachment of the appellant is temporary and if made in violation of Section 5 of Act 419 of 1953 (Ark.Stats.Sec. 76--544) should be ordered removed only after adjoining encroachments are removed.'

We rather agree with the appellees in their response to the appellant's points, stated in appellees' brief as follows:

'There is no such thing as an authorized, reasonable and necessary encroachment.

Inclusion of Baseline Road into the state highway system as Highway No. 338 neither continued to authorize or revoke any authority for encroachments upon the highway, and no such encroachment could be reasonable and necessary in character.

There is no such thing as a temporary encroachment in violation of Ark.Stats.Ann. Sections 76--544; removal of an encroachment is not dependent upon the removal of other encroachments.'

The facts in this case are distorted to some extent by implications growing from what the appellant's attorney characterizes as 'a spite law suit,' between the appellant and the third party cross-defendant appellees. From the overall record, however, it appears that Mr. Buffalo purchased the west half of a tract of land, designated 'tract 11,' with a filling station thereon. This property fronts 105 feet on the south side of Base Line Road, and also borders the east side of Rock Road where Reck Road intersects, but does not cross, Base Line Road. Mr. and Mrs. Day own the east one-half of tract 11, immediately east of Buffalo's corner lot, and the north end of the Day property also fronts 105 feet on the south side of Base Line Road. The west boundary line of the Day property coincides with the east boundary line of Buffalo's property. Base Line and Reck Roads both have 60 foot right-of-ways, and Base Line Road has now been taken over by the state and adopted into the state highway system as state Highway 338.

While Highway 338 was still a county road, and the traffic flow was less than it is now, many encroachments on the 60 foot right-of-way by abutting landowners were permitted by acquiescence as well as affirmative permission and approval by county road officials. A part of the drive or turn-in approach to Mr. Buffalo's filling station was on right-of-way when Buffalo purchased the property, and the county road superintendent authorized Mr. Buffalo to erect a 4 8 foot sign about 12 feet out into the right-of-way, with the bottom of the sign being two or three feet above the ground. Mr. and Mrs. Day also had a solid board fence built along their west boundary line. This fence is about six feet high and also extends into the right-of-way about eight feet.

After the state took over the maintenance of Highway 338, it seems that additional asphalt was added to the traveled surface of the highway causing it to be considerably higher than the gravel area between Buffalo's gas pumps and the pavement. Buffalo used his own tractor periodically in filling up holes in the graveled area and in keeping the gravel moved up even with the surface of the blacktop, so that automobiles could easily leave the highway surface without drop-off in entering his service station for gasoline and other services.

The record indicates that Buffalo and Mr. and Mrs. Day had engaged in previous litigation in connection with a surface drainage problem, and that the Days objected to Buffalo's operation of his tractor on the right-of-way. Mr. and Mrs. Day also objected to the obstruction of vision created by Buffalo's metal sign. Mr. and Mrs. Day received full credit for reporting Buffalo's encroachments to the state highway department, resulting in the Highway Commission filing the petition for injunction in the Pulaski County Chancery Court from which comes this appeal.

Buffalo filed a cross-complaint against the Days on June 12, 1969, alleging that they are also encroaching on the right-of-way with their fence, and that if Buffalo is required to remove his sign, then the Days should be required to remove their fence. On June 27, 1969, the Days filed a demurrer, as follows:

'The cross-defendants, R. F. Day and Agnes N. Day, to the cross-complaint of Cecil M. Buffalo, Sr., demur.'

On July 17, 1969, Buffalo filed an amendment to his cross-complaint and alleged that if he was forced to remove his sign, then Days' fence would obscure his filling station from the view of motorists and prospective customers traveling west on the highway. Buffalo prayed that the Commission's petition be dismissed and that Days' rights to maintain their fence as an encroachment into the right-of-way be determined by the court. On October 7, 1969, the chancellor sustained the demurrer and dismissed the cross-complaint by order, as follows:

'On this day came on for hearing the demurrer of the cross defendants, R. F. Day and Agnes N. Day, his wife, to the cross-complaint and first amendment to the cross-complaint of the defendant, Buffalo, and premises considered the Court finds that the demurrer should be sustained and the said Buffalo refusing to plead further, it is ordered by the Court that both the cross-complaint and first amendment to cross-complaint against R. F. Day and Agnes N. Day, his wife, be and the same is hereby dismissed with prejudice.'

Ark.Stat.Ann. § 76--544 (Repl.1957) provides as follows:

'The rights-of-way provided for all State Highways shall be held inviolate for State Highway purposes, except as hereinafter provided, and no physical or functional encroachments, instalations, signs (other than traffic signs or signals), posters, billboards, roadside stands, gasoline pumps, or other structures...