Donaghey v. Lincoln
| Citation | 287 S.W. 407 |
| Decision Date | 25 October 1926 |
| Docket Number | (Nos. 200, 215.) |
| Parties | DONAGHEY et al. v. LINCOLN et al. |
| Court | Supreme Court of Arkansas |
Suits by C. K. Lincoln and others against George W. Donaghey and others. From the decree, all parties appeal. Decree modified.
See, also, 287 S. W. 412.
Moore, Smith, Moore & Trieber, of Little Rock, for appellants.
Cockrill & Armistead and John W. Newman, all of Little Rock, for appellees.
The Broadway-Main street bridge district of Pulaski county is a local improvement district, created by a statute of the General Assembly of 1919 (Special Acts 1919, p. 74), authorizing the construction of two bridges across the Arkansas river, connecting the two cities of Little Rock and North Little Rock, one of the bridges being known as the Broadway bridge and the other as the Main street bridge, the latter forming a connection with Main street, on the Little Rock side, and with Maple street, on the North Little Rock side, of the river. The width of the Main street approach to the north side covers the full width of Maple street up to the curb line, and the sidewalk continues from the intersecting street corner across the bridge. The approach begins at the intersection of Maple street with Washington avenue, which runs east and west at right angles with Maple street.
The appellees, Charles K. Lincoln, and his sister, Mrs. Shipton, are the owners of improved real estate situated in North Little Rock on the east side of the Main street bridge approach, and this litigation involves the question of the extent of the damage done to this property in the construction of the improvement.
The statute creating the district provides for the appointment of assessors to "assess the benefits which will accrue to all lands, railroads, tramroads, and telegraph, telephone and pipe lines within the district, from the making of the proposed improvement, and all damages which will result therefrom." It provides that the assessors shall make a return showing "the description of the property benefited, the name of the supposed owner, and the amount of the benefits and damages, together with an estimate of what the work will probably cost such property owner, and the amount which the property owner will be called upon to pay the first year." After the return of the assessors is made and filed with the county clerk, notice is given so that owners of property may have an opportunity to appear and make complaint, and there is a provision that any dissatisfied property owner "may bring suit in the chancery court of Pulaski county within thirty days, to review the action of the board of assessors." All these provisions with reference to the assessments are contained in section 3 of the statute, supra.
The assessment list was filed with the county clerk in May, 1920, and within 30 days thereafter appellees filed separate actions in the chancery court of Pulaski county attacking the correctness of the appraisals of damages to their property made by the assessors. The causes were consolidated and tried together, but separate findings were made with reference to each piece of property owned by each of the appellees. There was a reference to a master, and there were exceptions filed to his reports by both sides, but on hearing of the exceptions the court overruled them all, and rendered a final decree on December 24, 1924, in accordance with the findings of the master. An appeal has been prosecuted by the district, and appellees have also prosecuted cross-appeals from portions of the decree adverse to their claims on certain issues.
The new Main street bridge had been completed before the trial of the cases below, and the testimony shows that it is a modern type structure, erected in replacement of the old bridge, which was constructed by the county many years ago, and which had gotten considerably out of repair.
The property in controversy owned by appellee Lincoln consists of a hotel building fronting west towards the bridge, but not actually abutting thereon, and a store building adjoining the hotel building on the north, and running through to Washington avenue, and also three other store buildings fronting on Washington avenue, designated as Nos. 124, 126, and 128. The hotel building is 60 feet square, and has three stories and a basement. The first story consists of four storerooms, each 15 feet wide, fronting west towards the bridge, and the second and third stories are used for hotel purposes. The building was constructed of brick. The drug store building is 20 feet wide, and is a one-story brick structure. The other three stores owned by Lincoln are one-story brick buildings, 20 feet wide, fronting on Washington avenue. The property of Mrs. Shipton consists of four store buildings adjoining the Lincoln property on the east, and fronting on Washington avenue. The second floor of the hotel building and the ground floor of the drug store building were on a level with the approach to the old bridge, and between the two buildings and the bridge there is a triangular-shaped strip of ground owned by the county. The base of the triangle at the southwest corner of the hotel building is 19.8 feet wide, and it runs to a point at the northwest corner of the drug store building at the intersection of Maple street and Washington avenue. This piece of ground was a deep hollow, far below the surface of the street and bridge approach, and, after the construction of the buildings owned by Lincoln, the latter leased the ground from Pulaski county under a written contract for a period of 50 years. The purpose of the county in granting this lease was, as declared in the contract, to widen the approach to the bridge, and the contract imposed upon the lessee an obligation to fill in the ground and construct a sidewalk over and above it from his building or property line to the embankment and sidewalk of the bridge. The sidewalk was to be on a level, and connecting, with the sidewalk of the bridge, so that the whole of the paved area could be used by the public as a part of the bridge approach. The contract was complied with by Lincoln, and the structure, as it then existed, provided a sidewalk covering the space between the bridge approach and the front of the buildings, and continuing clear across the bridge. This made a sidewalk about 24 feet wide, and affords plenty of space for the occupants of the store buildings in the hotel to display their goods for sale.
In constructing the new bridge on the site of the old one which was torn down, Maple street was widened to the extent that a few feet were taken from the northwest corner of the drug store building, and a narrow strip was taken off the edge of the leased property next to the bridge. A triangular cut was made from the front of the drug store building about 6 feet wide, thus narrowing the front. The court below made an allowance of $4,000 for this injury to the drug store building, and neither side questions the correctness of that award. The effect of widening the approach on Maple street was to narrow the sidewalk between the walls of the building and the curb line from 24 feet, as it existed prior thereto, to 18 feet when the new structure was completed. There was also a change in the grade of the approach on Maple street so as to raise it from the intersection of Maple street and Washington avenue to the bridge proper. The raise in front of the four stories in the hotel building was 15 inches in front of the first room on the south and 22 inches in front of the store on the north. This change in the grade made it necessary to raise the floors of each of the four store-rooms in the hotel building so as to place them on a level with the sidewalk, and in doing so the height from floor to ceiling in each of the stores was reduced from about 13 feet to a little more than 11½ feet. It also became necessary, on account of the raise in grade on Maple street, to raise the grade on Washington avenue so as to conform to that grade. The raise at the intersection of those two streets was 3.9 feet higher than the old grade, and extended east 170 feet on Washington avenue at a downward grade of 3.44 per cent. It was necessary to raise the floors of the brick store buildings so as to put them on a level with the raised sidewalk, and the ceiling height was reduced from 13 feet 9½ inches to about 10 feet 3½ inches. The change in the grade made it necessary to raise the floors in the other three buildings owned by Lincoln on Washington avenue and two of the buildings owned by Mrs. Shipton, and this, of course, resulted in a slight reduction of the ceiling height.
The report of the master sets forth the findings of fact with respect to the various changes in the property and the extent of restoration and injury, and he made specific findings as to damages as follows:
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