Desha v. Independence County Bridge Dist. No. 1

• Court: Arkansas Supreme Court
• Writing for the Court: Mehaffy
• Citation: Desha v. Independence County Bridge Dist. No. 1, 3 S.W.2d 969, 176 Ark. 253 (Ark. 1928)
• Decision Date: 13 February 1928
• Docket Number: (No. 199.)
• Parties: DESHA v. INDEPENDENCE COUNTY BRIDGE DIST. NO. 1.

3 S.W.2d 969

DESHA v. INDEPENDENCE COUNTY BRIDGE DIST. NO. 1.

(No. 199.)

Supreme Court of Arkansas.

February 13, 1928.

On Rehearing, April 2, 1928.

Appeal from Circuit Court, Independence County; S. H. Mann, Special Judge.

Condemnation suit by Independence County Bridge District No. 1 against Ben Desha. From a judgment awarding damages, defendant appeals. Reversed and remanded.

Cole & Poindexter, of Batesville, Cul I. Pearce and John E. Miller, both of Searcy, and Chas. W. Mehaffy, of Little Rock, for appellant.

Ernest Neill and S. M. Casey, both of Batesville, for appellee.

MEHAFFY, J.

The appellee, plaintiff below, brought suit in the Independence circuit court, alleging that it was an improvement district created by act of the General Assembly for the purpose of constructing and maintaining a bridge across White river at or near the present location of the ferry owned by the appellant, who was the defendant below. It alleged that it had a right to acquire all necessary land for the purpose of building approaches and embankments, as well as such land as may be necessary to connect the bridge with the public highway; that in carrying out the purposes of its creation it was necessary that it acquire title to certain lands belonging to the appellant. It then described the land desired, and asked the court to fix the damages that might be sustained by appellant and to condemn said land.

An order was made by the judge in vacation, ordering appellees to deposit $3,000 with the Union Bank & Trust Company of Batesville, and this sum was deposited.

The appellant filed answer, admitting the creation of the district, and admitting that they had been unable to agree upon the amount of damages. He alleged:

That he was the owner of the land on both sides of the river where appellant proposed to build the bridge. That he and those under whom he held title had owned the land for more than 100 years. That he was the owner of a licensed public ferry known as Ramsey's Ferry, located within a few feet of the proposed bridge site, which had been so located, owned, used, and operated by him and his grantors and their ancestors continuously for more than 100 years. That they have continuously paid all taxes on said land and license on said ferry as required by law during the entire time of their ownership. That he owned all the land fronting on the bank of the river in fee simple at the south landing of said ferry for more than a mile up and down stream, and extending back for more than one mile, and also owned the land fronting on the bank of the river at the north end of said ferry for more than one-fourth mile up and down stream, and extending far enough back to embrace about 70 acres. That, in order to obtain a ferry license, the licensee must be the owner or lessee of the lands on both banks of the stream. That taking the land as proposed by plaintiff would wholly destroy the approaches to said ferry, render it useless, and thereby destroy the defendant's franchise to operate the same.

That the right and privilege to operate a ferry, and the ability and opportunity to operate the same, is wholly dependent upon ownership and possession of the lands on the banks of the stream where the same is to be operated, and, for this reason, the right to establish, operate, and run a ferry is a valuable right, belonging and appertaining to the land, and makes the land more valuable.

That the ferry right and privilege in controversy in this case is especially and peculiarly valuable by reason of the fact that the ferry is established and located on a state highway between important cities, and enjoys a large tourist patronage from both directions, and the value of defendant's lands is enhanced and increased by the net income derived from the ferry, and by reason of its availability for such rights and uses.

That the right and use comes to the defendant by reason of his ownership of the land, and yields him a net income of $4,500 a year; and, by taking said land of the defendant for use and construction of a free bridge at the approaches of the ferry, the plaintiff destroys the ferry, and deprives the defendant of a net income of at least $4,500 a year in perpetuity.

That the lands proposed to be taken are advantageously located, peculiarly suited, and highly valuable as a ferry site. That, on account of the nature and character of the lands, its location, and peculiar fitness as a ferry site, and other elements contributing to, and making up its true value, if condemned and taken for a free bridge site, as sought by the plaintiff, the defendant will be damaged no less than $60,000.

He asked that he be awarded the sum of $60,000 as damages. The appellee filed an amendment asking to condemn an additional two-tenths of an acre, and deposited $40 with the same bank for this additional land.

The defendant filed a motion for a change of venue, alleging that he could not obtain a fair and impartial trial in Independence county and Stone county on account of undue influence of plaintiff, and on account of undue prejudice against his defense. He set up that the improvement district was composed of all lands south and a portion north of White river in Independence county, including the city of Batesville; that most of the advocates of a bridge across White River at Batesville are property owners in Independence county, and some in Stone county; that many who favor building the bridge, including the commissioners of the district, are publicly opposing the defendant's claim for damages, because, if he prevails, the cost of the improvement will be increased and borne by the property owners of the district, most of whom are eligible for jury service in Independence county, and some in Stone county; that many of the property owners and newspapers in the district as well as the county officials have publicly expressed opposition to the claims and demands of the defendant — all of which tends to defeat a fair and impartial trial of the cause before a jury in Independence or Stone county.

He asked that a change of venue be granted, and that the cause be transferred to Jackson county for trial. The motion for change of venue was in proper form, and properly verified and supported by the affidavits of quite a number of witnesses. The court overruled the motion for change of venue, and the defendant objected and saved his exceptions. The plaintiff then filed another amendment to its complaint, in which it stated that it did not intend to, and would not, interfere with the operation of the ferry owned by the defendant, but it expressly conceded, granted, and reserved to the defendant the right to operate the ferry and the right of ingress and egress on said lands so far as the same may be necessary for the operation of his ferry, and agreed that the decree and judgment of this court which may hereafter be rendered may contain such reservations and exceptions as will protect the defendant fully in his rights to operate the ferry.

The case was tried, and the court directed the jury to return a verdict in favor of the defendant for $3,040, which was accordingly done. Judgment was entered accordingly, proper objections and exceptions were made, and the defendant filed motion for a new trial, which was overruled on the same day, and the appellant saved his exceptions, and prayed and was granted an appeal to the Supreme Court.

Appellant's first contention is that the court erred in refusing to grant a change of venue.

Section 10339 of Crawford & Moses' Digest provides that any party to a civil action trial by a jury may obtain an order for a change of venue therein by motion, etc.

Mr. Justice HUMPHREYS and the writer believe that the change of venue should have been granted; that to deny a change of venue where two-thirds of the county are interested, as they are in this case, practically abrogates the statute. A majority of the court, however, is of opinion that, under section 10341 of Crawford & Moses' Digest, the court had a right to deny the motion to change the venue, and that his refusal to grant said motion was not error. The section reads as follows:

"Hereafter the venue of civil actions shall not be changed...