City Oil Works v. Helena Improvement District No. 1

• Decision Date: 30 June 1921
• Docket Number: 57
• Citation: 232 S.W. 28,149 Ark. 285
• Parties: CITY OIL WORKS v. HELENA IMPROVEMENT DISTRICT No. 1
• Court: Arkansas Supreme Court

232 S.W. 28

149 Ark. 285

CITY OIL WORKS v. HELENA IMPROVEMENT DISTRICT No. 1

No. 57

Supreme Court of Arkansas

June 30, 1921

Appeal from Phillips Circuit Court; J. M. Jackson, Judge; reversed.

STATEMENT OF FACTS.

This action was brought in the circuit court by Helena Improvement District No. 1 against the City Oil Works to condemn a right-of-way over property belonging to the defendant in Helena, Ark., for the construction of a levee. Subsequent purchasers of the property from this defendant were also made defendants.

They answered, setting up damages by reason of the actual taking of a part of the land and the injury to the remainder.

The board of commissioners for the levee district and the engineers were witnesses for it at the trial of the condemnation proceedings. According to their testimony, the levee was first constructed in front of the oil mill of the defendants, and the levee protected the mill from the high waters of the Mississippi River. There was a subsidence in the levee. By this is meant that the levee sank down, and the cause of it was the soft foundation. The subsidence was in that part of the levee in front of the mill. The commissioners of the levee district expended about $ 20,000 in trying to repair and maintain the levee in front of the oil mill. They were unable to do so, and, after the levee had sunk down again and a part of it had caved into the river, it was deemed advisable to construct the levee behind the oil mill. In doing this, they used about six-tenths of an acre of the land on which the oil mill was situated and built the levee across an industrial railroad track which had been extended from the main track of the railroad company to the oil mill for the purpose of carrying freight to and from the mill. This left the oil mill in front of a levee sixty feet high and without means of carrying its freight from the mill to the tracks of the railroad company. The value of the land upon which the mill was situated was $ 1,000 per acre.

According to the testimony of G. W. Willey, the president and manager of the oil mill, his company was engaged in crushing cotton seed and in the cotton seed oil business. It is impractical to operate an oil mill of that size without an industrial track. After the levee was constructed behind the oil mill it destroyed the industrial track so that the company was unable to move its freight to and from the mill to the railroad. It was impractical to operate the mill after the levee had been constructed across its industrial track, so that cars could not be brought from the railroad track to the mill for the purpose of loading and unloading. The value of the plant before the levee was constructed behind it was $ 70,000. After that its value was practically destroyed, and it was necessary to sell the machinery piece by piece.

He further stated that this would have been prevented if the old levee had been permitted to remain. According to his testimony, also, the construction of the new levee made it impossible to operate the plant. The reason given was that the levee occupied that portion of the ground that had been formerly used for trackage purposes, and the construction of the levee, which was sixty feet high across the industrial track leading into its mill, damaged the property the whole value of the mill. The reason that the taking deprived them from operating the mill was because it was impossible to maintain thereafter a railroad connection. In short, the taking of the particular piece of land and the building of the levee across the industrial track practically destroyed the value of the mill, and made it impracticable to operate it.

No subsidence has occurred in the old levee in front of the mill since the construction of the new levee behind it. Accretions are forming in the river in front of the mill and willow trees are growing up there.

The jury returned a verdict for the plaintiff and assessed the value of the land taken by it in the sum of $ 60.

From the judgment rendered, the defendants have duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

Moore & Vineyard and W. G. Dinning, for appellants.

1. The court erred in overruling appellants' exceptions to the competency of certain jurors. Residents and taxpayers of a municipality are disqualified as jurors in actions affecting the interests of the municipality. 60 Ark. 221; 119 Ind. 368; 5 L. R. A. 253; 81 Kan. 616; 28 L. R. A. (N. S.) 156; 115 La 757; 5 Ann. Cases 920; 57 Ore. 236; Ann. Cases 1913-A, 117. The jurors objected to were not qualified jurors in this case.

2. The improvement district is liable to appellants for the damages caused to their property as a whole by the building of the levee across a portion of their lands. Private property can not be taken or damaged for public use without just compensation therefor. Const., art. 2, § 22; Id., art. 5, § 32, and art. 12, § 9. This court has settled the law as to the elements of damage arising in favor of landowners by reason of eminent domain proceedings. The owner is entitled to recover all damages caused by increased difficulty of ingress and egress caused by the construction of a railroad. 41 Ark. 431. The manner in which a railroad cuts up the land, the amount and location of the land taken, the inconvenience to the owner in passing from one part of his land to another, the absence of proper crossings and the overflow of the land, are proper elements of damage. 44 Ark. 360; 51 Id. 330. See, also, 39 Ark. 167. The measure of damages for taking the land for right-of-way is the market value of the land taken and the damage to the remaining land from the building of the road across it and from floods and overflows caused by its construction. 78 Ark. 83. See, also, 88 Ark. 129; 94 Id. 206; 5 A. L. R. 723, 727. The court below ignored the well-known rule of these cases, and prejudicial error resulted to appellant. The measure of damages and amount of recovery is not limited by the provisions of C. & M. Digest, § 3940. The provisions of said section, in so far as they attempt to deprive the owners of property in this State of the rights guaranteed by our Constitution, are void. The owner is entitled to full compensation for all the damages done by taking his land. The appellants attempted to have all the issues submitted to the jury by asking a number of instructions, but the court erroneously refused to give them. The error was prejudicial.

P. R Andrews and J. G. Burke, for appellee.

1. The overruling of exceptions to the competency of certain jurors on the ground that they were owners of land in the district has never been passed on by this court, but see 43 Ark. 324. See, also, 94 Ark. 563. Under the rulings of this court the jurors were not disqualified.

2. As to the measure of damages and recovery is limited by C. & M. Digest, § 3940.

3. There was no error in the instructions given or refused. The principles were settled in 95 Ark. 345-51. That case is conclusive of this. See, also, 230 U.S. 34. There was no error in refusing to submit the issues raised by the instructions to a jury.

HART, J. SMITH, J., dissents.

OPINION

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

There is no conflict in the testimony that it was necessary to construct the new levee in order to protect the lands within the district from the overflow of the Mississippi River. It is conceded that the commissioners acted in good faith in locating and constructing the new levee, and that this was within the power of the commissioners under the act creating the improvement district.

The evidence shows that the levee, as originally constructed, was between the oil mill of the defendants and the Mississippi River. So it may be said that the oil mill was on the inside of the levee. By the construction of the new levee the oil mill was placed outside of the levee. In other words, the oil mill of the defendants is between the new levee and the Mississippi River. There was an industrial track extending from the oil mill of the defendants westward to the main line of a railroad. The levee was constructed across the industrial track on a part of the land of the oil mill. The levee as constructed was sixty feet high and destroyed entirely the use of the industrial track of the oil mill. So that communication from the mill with the railroad by cars operating on the industrial track was entirely cut off.

In instructing the jury at the request of the plaintiff, and in refusing to give instructions asked by the defendants, the court limited the damages to be recovered to the value of the land actually taken in the construction of the levee, and denied the defendants the right to recover on account of the levee being built across the industrial track running from the main line of the railroad to the oil mill of the defendants. This was error. The ruling on this point would have been correct if the uncontradicted evidence had shown that the practical use of the oil mill had been destroyed on account of its being outside of the levee by the construction of the new levee.

In McCoy v. Bd. of Dir. of Plum Bayou Levee Dist., 95 Ark. 345, 129 S.W. 1097, the court held that a levee district may rightfully build its levee across depressions, swales and low places so as to prevent the escape of flood water from a river into surrounding low lands sought to be protected, though it has the effect of raising the water higher on lands between the levee and river, without becoming liable to the owner of such intervening lands so damaged.

The court further held that a levee district, which builds a levee so as to protect lands from overflow of the waters of a stream at flood time, will not, under article 2, § 22 of the Constitution of 1874, providing...