Campbell v. Arkansas State Highway Commission

• Citation: 38 S.W.2d 753,183 Ark. 780
• Decision Date: 11 May 1931
• Docket Number: 279
• Parties: CAMPBELL v. ARKANSAS STATE HIGHWAY COMMISSION
• Court: Supreme Court of Arkansas

38 S.W.2d 753

183 Ark. 780

CAMPBELL v. ARKANSAS STATE HIGHWAY COMMISSION

No. 279

Supreme Court of Arkansas

May 11, 1931

Appeal from Jackson Circuit Court; S. M. Bone, Judge; reversed.

STATEMENT OF FACTS.

Cases Nos. 2049 and 2050 have been consolidated for the purposes of appeal because the issues in each case are the same. Each case was brought by an owner of real property in the city of Newport against the Arkansas State Highway Commission to recover damages alleged to have been sustained by reason of the construction by said Arkansas State Highway Commission of a bridge and approaches thereto across White River, together with a toll-house situated thereon, in the immediate vicinity of their property. The complaint in each case alleged that the owner's property was situated next to said bridge and its approaches and that the construction of said bridge and of the approaches thereto necessitated a change in the grade of the highway, so that the residence of the owner of the property was exposed to the view of the traveling public, and that the bridge was constructed at a height greater than that of the house, so that the light and air was obstructed thereby. The complaint further alleges that the construction of said bridge and the approaches thereto obstructed the ingress and egress to the owner's property and caused them annoyance by dust and dirt blown over their property and the sound caused by the vehicles going over the bridge, and that numerous powerful lights have been erected on the bridge which burn throughout the night, illuminating the building of the property owner to his annoyance and discomfort.

In each case the defendant filed a demurrer to the complaint which was sustained by the court. The plaintiff in each case elected to stand upon his complaint, and it was adjudged that the complaint of each be dismissed and a judgment was rendered in favor of the defendant in each case. The cases are here on appeal.

Judgment reversed, and cause remanded.

W. H Bengel, for appellant.

Hal L Norwood, Attorney General, and Claude Duty, Assistant, for appellee.

OPINION

HART, C. J., (after stating the facts).

The right of eminent domain in the premises is conceded in the Arkansas Highway Commission, but it is insisted that this right is and must, under our Constitution, be subordinate to the right of the property owners to be first compensated for the damages to their property by the construction of the bridge and the approaches thereto. Their claim is based upon the guaranty given by § 22 of the Bill of Rights of our present Constitution, which provides that private property shall not be taken, appropriated, or damaged for public use without just compensation therefor. It is claimed that under it, whether the property is taken or not, if it has been damaged by reason of the construction or operation of any improvements made for the use of the public, the owner may recover whatever damage the property has actually sustained. Under our decisions, the owner of property abutting upon a street or highway has an easement in such street or highway for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself; and any subsequent act by which that easement is substantially impaired for the benefit of the public is a damage to the lot itself within the meaning of the constitutional provision for which the owner is entitled to compensation. The reason is that its easement in the street or highway is incident to the lot itself, and any damage, whether by destruction or impairment, is a damage to the property owner and independent of any damage sustained by the public generally.

In Hot Springs Railroad Co. v. Williams, 45 Ark. 429, affirmed in 136 U.S. 121, 10 S.Ct. 955, 34 L.Ed. 355, it was held that the section of our Constitution above referred to makes a railroad company constructing its railroad in a public street under grant from the Legislature or municipality liable to owners of abutting land for consequential injuries to their land resulting from such improvement. The rule was re-affirmed in Little Rock & Fort Smith Ry. Co. v. Greer, 77 Ark. 387, 96 S.W. 129.

The same construction was placed upon the constitutional provision in Dickerson v. Okolona, 98 Ark. 206, 135 S.W. 863, 36 L. R. A. (N. S.) 1194, where the owner of property abutting on a street in a city or incorporated town was held entitled to recover compensation for damage done to his property in lowering the grade of the street.

In Chicago v. Taylor, 125 U.S. 161, 8 S.Ct 820, 31 L.Ed. 638, it was held that, under the provision in the Constitution of the State of Illinois adopted in 1870 that "private property shall not be...