Chestnut v. Norwood

• Decision Date: 22 June 1987
• Docket Number: No. 87-5,87-5
• Citation: 731 S.W.2d 200,292 Ark. 498
• Parties: Ray CHESTNUT, et al., Appellants, v. Al NORWOOD, et al., Appellees.
• Court: Arkansas Supreme Court

Page 200

731 S.W.2d 200

292 Ark. 498

Ray CHESTNUT, et al., Appellants, v. Al NORWOOD, et al., Appellees.

No. 87-5.

Supreme Court of Arkansas.

June 22, 1987.

R. Theodor Stricker, Gentry, for appellants.

Carl O. Lamar, Bentonville, for appellees.

HAYS, Justice.

This appeal is an attempt to impose tort liability on a county judge and road foreman for damages allegedly caused by diverting surface waters onto the appellants' lands. The circuit judge dismissed the complaint without prejudice based on governmental immunity and on a lack of jurisdiction. We affirm the circuit court.

Appellants are property owners residing along Cemetary Road. In 1986 the Benton County Road Department reworked the road and installed drains which affected the flow of surface water on appellants' lands. They filed suit in circuit court against Al Norwood and Keith Knox, individually and in their capacities as county judge and "road boss." The suit alleged a cause of action in tort for negligence of the defendants. The relief sought was monetary damages.

On appeal appellants challenge the constitutionality of Ark.Stat.Ann. § 12-2901 (Repl.1979) which reads:

It is hereby declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.

The constitutionality of that provision has been upheld too often and too recently to be subject to serious question. Helms v. Southern Farm Bureau Casualty Insurance Co., 281 Ark. 450, 664 S.W.2d 870 (1984); Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984); Chandler v. Pulaski County, 247 Ark. 262, 445 S.W.2d 96 (1969). In Chamberlain v. Newton County, 266 Ark. 516, 587 S.W.2d 4 (1979) we affirmed a lower court dismissal of a suit for damages for trespass by Newton County in allegedly causing a road to be constructed on lands belonging to Chamberlain. We pointed out that trespass was a tort and that the trial court had no jurisdiction. Ms. Chamberlain's only remedy, we said, was in the county court under Article 7, § 28, Arkansas Constitution.

Nor can we sustain the argument that appellants' damage is not a matter "relating to ... roads" within the language of Article 7, § 28 of the Arkansas Constitution:

The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided.

The complaint alleges the defendants constructed drainage culverts on Cemetary Road which caused surface waters "to collect, flood and erode the plaintiff's lands." We find no merit in the argument appellants' claims are not related to roads within the meaning of the article.

Appellants contend they initially sought relief by contacting the county judge, to no avail, and this satisfies the jurisdictional requirement of Article 7, § 28. They cite no authority for the far reaching premise that this informal step then frees them to pursue a cause of action in tort in clear contravention of the constitution and statute. Nor is the argument facially convincing. Gray v. Ragland, 277 Ark. 232, 640 S.W.2d 788 (1982); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977). We note,...