Dickerson v. Town of Okolona
Citation | 135 S.W. 863 |
Parties | DICKERSON v. TOWN OF OKOLONA. |
Decision Date | 13 March 1911 |
Court | Supreme Court of Arkansas |
Appeal from Circuit Court, Clark County; Jacob M. Carter, Judge.
Action by T. S. Dickerson against the Town of Okolona. Demurrer to the complaint was sustained, and plaintiff appeals. Reversed and remanded, with directions.
Hardage & Wilson, for appellant. Hamby, Haynie & Hamby, for appellee.
Plaintiff, who owns a lot in the incorporated town of Okolona on which is situated a dwelling house, barn, and other outhouses, instituted this action against said incorporated town to recover damages to the property by reason of lowering the grading of a street.
The complaint, as far as necessary to copy, reads as follows: The circuit court sustained a demurrer to the complaint, and the plaintiff appealed.
The question presented is whether, under the Constitution and statutes of the state, the owner of property abutting on a street in a city or incorporated town may demand and recover compensation for damage done to the property in the grading of the street. The Constitution declares that "private property shall not be taken, appropriated or damaged for public use without just compensation therefor." Article 2, § 22. A statute on the subject reads as follows:
Act March 9, 1875 (Laws 1874-75, pp. 33, 34, §§ 77, 78).
This court has repeatedly held that a municipal corporation is not responsible in damages for negligent or tortious acts of its officers and agents. Arkadelphia v. Windham, 49 Ark. 139, 4 S. W. 450, 4 Am. St. Rep. 32; Collier v. Ft. Smith, 73 Ark. 447, 84 S. W. 480, 68 L. R. A. 237; Gray v. Batesville, 74 Ark. 519, 86 S. W. 295; Franks v. Holly Grove, 93 Ark. 250, 124 S. W. 514; City of Ft. Smith v. York, 52 Ark. 84, 12 S. W. 157. The authorities on that question are divided, but this court has steadily adhered to its position without considering where the weight of authority rests.
In the case of Simmons v. City of Camden, 26 Ark. 276, 7 Am. Rep. 620, this court held (quoting from the syllabus) that cities and towns have authority to lay out, open, grade, and keep in good repair the streets, and a "suit will not lie at the instance of an individual for damages, resulting from injuries to private property from the lawful exercise of this authority by the incorporation, where there has been no negligence, want or care or skill in its exercise." That decision was rendered in 1871, when there was no statute authorizing the recovery of compensation in such cases. The Constitution of 1868 then in force, unlike the language of the present Constitution, provided only that ...
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