City of Little Rock v. Linn

• Decision Date: 30 September 1968
• Docket Number: No. 5--4660,5--4660
• Citation: 432 S.W.2d 455,245 Ark. 260
• Parties: CITY OF LITTLE ROCK et al., Appellants, v. T. H. LINN et al., Appellees.
• Court: Arkansas Supreme Court

Page 455

432 S.W.2d 455

245 Ark. 260

CITY OF LITTLE ROCK et al., Appellants, v. T. H. LINN et al., Appellees.

No. 5--4660.

Supreme Court of Arkansas.

Sept. 30, 1968.

Rehearing Denied Nov. 4, 1968.

Thomas J. Bonner, Joseph C. Kemp and Perry V. Whitmore, Little Rock, for appellants.

H. B. Stubblefield, Little Rock, for appellees.

FOGLEMAN, Justice.

The City of Little Rock and the Bishop of the Catholic Diocese of Little Rock have appealed from the decree of the Chancery Court of Pulaski County voiding that portion of Ordinance #11944 which vacates 'I' Street between Harrison and Tyler Streets in Little Rock. Appellees, who attack this ordinance and another (#11604) vacating Tyler Street between 'H' and 'I' Streets, have also appealed. Their appeal is from the same decree insofar as it pertains to Ordinance #11604 and to the vacation of parts of the alley in Blocks 9 and 16 of Hollenberg's Addition.

Block 16 is bounded on the west by the portion of Tyler Street vacated by Ordinance #11604 adopted June 7, 1965. Block 16 lies on the south side and block 9 on the north side of that portion of 'I' Street which Ordinance #11944 purported to vacate. The alley runs north and south and bisects these blocks. Title to all of block 15 and all of those portions of block 16 and block 9 abutting the portions of the alley and 'I' Street which would be closed is vested in Albert L. Fletcher as Bishop of the Catholic Diocese of Little Rock.

Appellees are citizens, residents, taxpayers and owners of real property in the city. Their real property is in the vicinity of the streets and alleys sought to be closed. Only one of them owns any property in the same block with any portion of the public ways affected. He is the owner of a lot bordering a portion of the alley which would not be closed. They originated this action on behalf of themselves and other persons similarly situated. Their complaint was filed August 30, 1967. They contend that both ordinances are void for want of authority in the Board of Directors in the city and because the findings made by the Board were untrue, arbitrary and unreasonable. They claim a vested right to the continued use of these public ways.

Among other defenses, appellants pleaded the bar of the statute of limitation set out in Ark.Stat.Ann. § 19--3829 (Repl.1956) as to Tyler Street.

After hearing the evidence, the chancellor rendered an opinion. In that opinion he held that the attack by appellees on the closing of Tyler Street was barred by the statute of limitation pleaded by appellants. We agree with the trial court on this finding.

Bishop Fletcher filed a petition for the closing of Tyler Street between blocks 15 and 16. The ordinance recites the giving of notice as required by law and the hearing of all persons desiring to be heard. It includes a finding that the petitioner was an educational institution operating Holy Souls Elementary School on both sides of the portion of the street to be closed. It also recites: That the petitioner, as owner of all property abutting on this portion of the street, had filed written consent to vacation of the street; that the portion of the street to be closed is not required for public purposes and that the public interest and welfare will be benefited by abandonment thereof. The ordinance expressly vacated and abandoned all rights of the city and the public generally in that portion of Tyler Street. The determination and findings of the council are conclusive unless suit to reject the ordinance is brought within thirty days after its passage. Ark.Stat.Ann. § 19--3829. Since no suit was brought, the action instituted by appellees attacking this ordinance is barred.

A petition for closing the block of 'I' Street between Harrison and Tyler Streets and 130 feet of the alley lying immediately north of this portion of 'I' Street and the 200 feet thereof lying immediately south of 'I' Street was also filed by Bishop Fletcher and certain owners of real property in the City of Little Rock. This petition was filed under the provisions of Ark.Stat.Ann. § 19--3818, § 19--2304 and § 19--3825. The petitioners alleged that the land embraced within the alleys to be closed was needed for the purpose of construction of new church buildings for Holy Souls Catholic Church, and was not needed for corporate purposes because modern municipal planning eliminates alleys in residential areas. They allege that the portion of the alleys which will remain will give sufficient access to public streets. They also stated that the portion of 'I' Street in question was not required for corporate purposes of the city and that there are sufficient other streets in the neighborhood to carry the traffic volume. The petition relates that Bishop Fletcher holds title as a corporation sole and, as such, is an educational institution, operating places of academic and religious education.

The schools are presently located on blocks 15 and 16, south of 'I' Street. The Holy Souls Catholic Church is located on this same property. It is alleged that the space in the existing buildings is inadequate and facilities are to be expanded on blocks 15 and 16. This expansion would include living quarters for the principal and some of the teachers of the school, parking facilities for teachers and patrons, a new church building, a new gymnasium, cafeteria and auditorium, all of which would be used jointly by the school and the church. This ordinance recites these, among other, findings by the Board of Directors:

'e. There are sufficient other East/West streets in the vicinity of the street to be closed to carry the traffic volume of the neighborhood. Also, it is preferred in modern municipal planning to eliminate alleys in residential neighborhoods and to have streets at intervals of 500 to 600 feet instead of 200 to 300 feet apart. Therefore, the portion of 'I' Street to be closed and the portion of the alleys to be closed are not required for corporate purposes of the City of Little Rock.

f. All property abutting the portions of the street and alleys to be closed is owned by Albert L. Fletcher, as Bishop of Little Rock, as a corporation sole. As such corporation, the petitioner operates Holy Souls Elementary School, an educational institution with more than 650 regular daily students, and Holy Souls Catholic Church. Both of these institutions are located South of 'I' Street at the location in question on Blocks 15 and 16, Hollenberg's Addition. Those institutions make a joint use of their existing facilities. The petitioner Fletcher proposes to expand the facilities to the North side of 'I' Street and needs to use the space in the street and alleys to be closed for the construction of the new facilities.

g. By his written petition, the petitioner Fletcher has consented to the vacation of the street and alleys in question. The Board of Directors finds that the public interest and welfare of the City will be benefited by granting the petition; * * *.'

In Sections 1 and 2 of the ordinance, the city released, vacated and abandoned all of its rights and the right of the public generally in and to those portions of 'I' Street and the alleys in question.

Testimony on behalf of the property owners in this regard showed that the property of at least some of them was included in street improvement districts which had improved the streets in the area, including the portion of 'I' Street to be closed. The improvements included paving and installation of curbs and gutters.

Appellees showed that something over 900 cars a day used the block of 'I' Street to be closed and that there was fairly heavy foot traffic because there were more sidewalks on 'I' Street than the other streets in the neighborhood.

There was testimony tending to show:

'I' Street constitutes a preferable entrance to and exit from the neighborhood because its approach to Kavanaugh Boulevard, one of the principal traffic arteries in that part of the city, was more nearly level than approaches at 'H', 'J', 'L' and Evergreen Streets; the 'H' Street entrance to Kavanaugh, one block south of the 'I' intersection, is uphill and runs into Kavanaugh at the intersection of the latter with Van Buren Street; 'J' Street is one block north of 'I' and lacks one block of going as far west as 'I', its entrance to Kavanaugh is uphill and visibility there is impaired by buildings; Evergreen, two blocks north of 'I', is wider than either of the other alternate streets, but it has an uphill entrance to Kavanaugh and no sidewalks; there are curbs and gutters on 'I' Street from Kavanaugh to Fillmore where it terminates; parents transporting children to Mount St. Mary's, Fair Park Elementary and Forest Heights Junior High School, as well as those attending Holy Souls School, use 'I'; at times during the day there is heavy pedestrian traffic involving school children, principally from Holy Souls School; during icing conditions in the winter, the level entrance provides easier and safer access to Kavanaugh and ice tends to melt faster on 'I' Street than on other streets entering onto Kavanaugh.

One of the property owners admitted that many people choose to use the 'H' Street, 'J' Street and Evergreen intersections with Kavanaugh. He also said that the closings would not prevent him from having access to the neighborhood or any point in the city, nor would they cause an increase in travel distance to exceed a block or two and travel time to exceed a minute or two. This condition would also be true as to the other protesting property owners. Another appellee, whose experience qualified him as a safety expert, agreed with the statement in Ordinance #11944 that other east-west streets in the vicinity were sufficient to carry the traffic volume in the neighborhood during good weather; however, he stated that in winter weather, ice tends to melt faster on 'I' Street than the others. Most of the property owners testified that traffic was increasing on 'I' and...