City of El Dorado v. Kidwell

Decision Date23 September 1963
Docket NumberNo. 5-3025,5-3025
Citation236 Ark. 905,370 S.W.2d 602
PartiesCITY OF EL DORADO, Appellant, v. Charles L. KIDWELL et ux., Appellees.
CourtArkansas Supreme Court

James Spencer, Jr., El Dorado, for appellant.

Brown, Compton & Prewett, El Dorado, for appellee.

McFADDIN, Justice.

This is an eminent domain proceeding. The City of El Dorado filed action in the Circuit Court, seeking to take a strip of ground 10 feet wide for an out fall sewer line. The strip went through the appellees' lands for a considerable distance. In their answer to the condemnation proceeding, the appellees (Mr. and Mrs. Kidwell) stated:

'Further answering, the defendants state that the sewer line described in the Complaint is not for public purposes and will not be constructed by the City of El Dorado, but rather for the sole benefit of the owners and developers of what is known as the Tanglewood Addition, a new subdivision, and therefore there is no right of eminent domain in defendant's property.' 1

The Circuit Court proceeded to try the case on the issue joined; that is, whether the taking was for a public purpose. We have held that when the answer presents a defense cognizable in equity--as here--and yet both sides proceed to trial in the law court, then the transfer to equity is waived and, on appeal from the circuit court, we test the judgment on equitable principles. Wilson v. White, 82 Ark. 407, 102 S.W. 201, 12 Ann.Cas 378; Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140; Hill v. Kavanaugh, 118 Ark. 134, 176 S.W. 336, 4 A.L.R. 1. We apply the rules of these cases to the case at bar. After an extended hearing, the Circuit Court found that the complaint should be dismissed as without merit. From that judgment there is this appeal; and the City urges only one point: 'The undisputed testimony establishes the City's right to take the property involved.'

The City proceeded under Ark.Stat.Ann. § 19-4101 et seq. (Repl.1956) in filing this suit, and duly introduced the ordinance of the City Council, authorizing the City Attorney to file the eminent domain proceedings. By answer, the defendants (appellees) denied the necessity of the taking, and, in effect, claimed that such taking was not for a public purpose. In Wollard v. State Highway Comm., 220 Ark. 731, 249 S.W.2d 564, we said that the landowners 'shouldered a heavy burden of proof in attempting to persuade the courts' that the taking was not for a public purpose. The burden was not on the City to prove the public purpose--the statute under which the City proceeded and the resolution of the City Council accomplished that purpose. Rather, the burden was on the landowner to prove that the taking was not for a public purpose; and with such burden understood, we examine the evidence.

The principal evidence of the landowner was directed to two points: (1) the proposed right of way would run diagonally through the landowners' property and interfere materially with the present and future use of the lands; and (2) a new addition was being...

To continue reading

Request your trial
6 cases
  • Edwards v. Arkansas Power & Light Co., 81-1865
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 18, 1982
    ...could not have transferred the condemnation proceedings to equity to resolve all issues at one trial. See City of El Dorado v. Kidwell, 236 Ark. 905, 370 S.W.2d 602, 603 & n.1 (1963); Burton v. Ward, 218 Ark. 253, 236 S.W.2d 65, 66-67 (1951). Second, even if plaintiffs' bad faith claim is c......
  • Smith v. Ark. Midstream Gas Servs. Corp.
    • United States
    • Arkansas Supreme Court
    • May 27, 2010
    ...49 (1940). The landowner, however, bears a heavy burden in proving that the taking was not for a public use. City of El Dorado v. Kidwell, 236 Ark. 905, 370 S.W.2d 602 (1963); Woollard v. State Highway Comm'n, 220 Ark. 731, 249 S.W.2d 564 (1952). Eminent-domain statutes are strictly constru......
  • Linder v. Arkansas Midstream Gas Serv. Corp.
    • United States
    • Arkansas Supreme Court
    • March 11, 2010
    ...144 S.W.2d 49 (1940). The landowner bears a heavy burden in proving that the taking was not for public use. City of El Dorado v. Kidwell, 236 Ark. 905, 370 S.W.2d 602 (1963); Woollard v. State Highway Comm'n, 220 Ark. 731, 249 S.W.2d 564 (1952). Eminent-domain statutes are strictly construe......
  • Shaklee v. District Court In and For Weld County
    • United States
    • Colorado Supreme Court
    • November 16, 1981
    ... ... See Waynesburg Southern Railroad Co. v. Lemley, 154 W.Va. 728, 178 S.E.2d 833 (1979); 1 City of Eldorado v. Kidwell, ... 236 Ark. 905, 370 S.W.2d 602 (1963); J. Sackman Nichols' The Law of ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT