Dowling v. Erickson, 82-155
| Decision Date | 10 January 1983 |
| Docket Number | No. 82-155,82-155 |
| Citation | 278 Ark. 142,644 S.W.2d 264 |
| Parties | Dr. George W. DOWLING, Appellant, v. Aulden ERICKSON, Appellee. |
| Court | Arkansas Supreme Court |
Little, McCollum & Mixon by James G. Mixon, Bentonville, for appellant.
Walker, Campbell & Young by Ronald D. Young, Harrison, for appellee.
The appellant owns land that completely surrounds land owned by the appellee, purchased from a third party. Having no access to his land from any public road, appellee filed a petition in county court, pursuant to Ark.Stat.Ann. Section § 76-110 (Repl.1981), to establish a road across appellant's land. Section § 76-110 sets out the procedures for establishing a road when an owner has no access to his land. The county court approved the petition and appointed three viewers who fixed a roadway and the amount of appellant's compensation. Appellant appealed to the circuit court which affirmed the county court. On appeal, appellant contends Section § 76-110 is unconstitutional because it is only for private use, whereas the Arkansas Constitution grants the right of eminent domain only for public use. We uphold the constitutionality of the statute.
We have held several times that a road established under Section § 76-110 although referred to in the statute as a private road, will be deemed a public road, because anyone who has occasion to use the road may do so. Bowden v. Oates, 248 Ark. 577, 452 S.W.2d 831 (1970); McVay v. Stupenti, 227 Ark. 224, 297 S.W.2d 769 (1957); Pippin v. May, 78 Ark. 18, 93 S.W. 64 (1906); Roberts v. Williams, 15 Ark. 43 (1854).
Appellant argues that the right of eminent domain cannot be exercised unless it is in fact for use by the public, citing City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967). The appellant, however, misconstrues the term "public use in fact", as used in that case. In Raines, the City of Little Rock had issued revenue bonds and levied taxes pursuant to Amendment 49 and implementing legislation (Ark.Stat.Ann. §§ 19-2702--19-2719 (Repl.1956), and was attempting to condemn property for an industrial park in conjunction with a port authority. We said that cities may exercise eminent domain only as expressly granted by the constitution or statutes and such grants are to be strictly construed against the condemnor. We held that neither Amendment 49 nor implementing legislation delegated to the cities the right of eminent domain for an industrial park. The right must be given for a use that in fact directly benefits the public. The point the appellant makes is misguided. The distinction between public and private use is qualitative--not quantitative. In discussing Ark.Stat.Ann. Section § 76-110, the court in Pippin, supra, states:
The character of a road, whether public or private is not determined by its length or the places to which it leads, nor by the number of persons using it. If it is free and common to all citizens, it is a public road though but few people travel upon it. (our italics).
Appellant also argues that our decision in Arkansas State Highway Commission v. Alcott, 260 Ark. 225, 539 S.W.2d 432 (1976) forces the conclusion that a road established by Section § 76-110 is for private use only. In that case the AHC sought to condemn land belonging to Alcott in order to restore access to property belonging to Corbin that had become landlocked as a result of highway construction. The AHC had proceeded under Ark.Stat.Ann. § 76-532 (Repl.1981) which allows the Highway Commission to condemn for purposes of highway construction. We said:
The evidence adduced by [The AHC] clearly shows that this taking was not for a public use. To the contrary, it was for the purpose of providing a private driveway and this the State cannot do.
Whether or not a use is public is a question for judicial determination. City of Little Rock v. Raines, supra. In Alcott, even the Highway Department conceded the condemnation was solely the Corbin's driveway. Other testimony from the AHC acknowledged it had taken that approach because it was cheaper than paying damages for Corbin's property. In contrast, there was no evidence in the present case to show that the road to appellee's property would not...
To continue reading
Request your trial
-
Smith v. Ark. Midstream Gas Servs. Corp.
...was not appropriate. The “public-use-in-fact” argument, espoused by the Linders, was rejected by this Court in Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), where we said: Appellant argues that the right of eminent domain cannot be exercised unless it is in fact for use by the p......
-
Linder v. Arkansas Midstream Gas Serv. Corp.
...was not appropriate. The “public-use-in-fact” argument, espoused by the Linders, was rejected by this Court in Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), where we said Appellant argues that the right of eminent domain cannot be exercised unless it is in fact for use by the pu......
-
Burton v. Hankins
...road to access a public road, except as it relates to a factor such as the cost between two possible routes. Citing Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), appellants argue that, should we affirm the trial they will be left without a remedy in the form of a road to access ......
-
Powell v. Miller
...expenses. Regarding this statutory provision for obtaining a means of access to one's property, our supreme court in Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), stated, "An individual who is landlocked and proceeds under § 76-110 [now codified at Ark.Code Ann. § 27-66-401 (198......
-
Appendix A State-by-state Survey of Public Use Standards
...818, 822 (Ariz. 1965).[29] . Ariz. Rev. Stat. § 12-1136(5)(a).[30] . Id. § 12-1136(5)(b).[31] . 411 S.W.2d486, 493 (Ark. 1967).[32] . 644 S.W.2d 264, 265 (Ark. 1983).[33] . Cal Const. art. I ,§ 19.[34] . Redevelopment Agency v. Hayes, 266 P.2d 105, 114 (Cal. Ct. App. 1954) (citing Schneider......