Eickhoff v. Street Improvement District No. 11 of Argenta

• Decision Date: 04 October 1915
• Docket Number: 143
• Parties: EICKHOFF v. STREET IMPROVEMENT DISTRICT No. 11 OF ARGENTA
• Court: Arkansas Supreme Court

179 S.W. 367

120 Ark. 212

EICKHOFF v. STREET IMPROVEMENT DISTRICT No. 11 OF ARGENTA

No. 143

Supreme Court of Arkansas

October 4, 1915

Appeal from Pulaski Circuit Court, Third Division; W. G. Hendricks Judge; affirmed.

STATEMENT BY THE COURT.

The appellant sued the city of Argenta and Street Improvement District No. 11 of that city, which we will hereafter designate as the district, alleging that he was the owner of certain lots in the city of Argenta on which there were six store buildings fronting on East Washington Avenue for a distance of 140 feet. The lots are particularly described in the complaint.

It was alleged that the buildings were erected with reference to the then street grade as established by the city; that the city was a city of the first class and that the district was a corporation duly organized under the laws of the State of Arkansas. It was alleged that along the front of the property described there was a sidewalk space on which was laid a concrete pavement, with a concrete curb, which were in good condition and which the plaintiff had laid at a great expense; that the pavement and curb had been laid on the grade established by law; that the defendants unlawfully broke the concrete pavement and curb into pieces and hauled it away; that they then lowered the earth along the sidewalk to a depth of two feet, leaving the front entrances of the stores eighteen inches or two feet above the sidewalk; that the unlawful acts of the defendants, in the manner set forth had cut off the necessary ingress and egress to and from the store buildings and had thus greatly lessened the usable value of the same, to the damage of plaintiff in the sum of $ 14,750 in addition to the value of the concrete walk and curb, which defendants destroyed, of the value of $ 224, for all of which the plaintiff prayed judgment.

The district demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer and dismissed the complaint as to the district. The plaintiff duly prosecutes this appeal.

Judgment affirmed.

Vaughan & Akers, for appellant.

The acts of appellee and the city of Argenta constituted a taking, damaging or appropriating of private property for public use for which under the Constitution just compensation should be made. Art. 2, § 22, Const.; 94 Ark. 380, 383; 110 Ark. 416; 107 Ark. 442, 446-449; 13 Ark. 206; 15 Ark. 49; 10 Am. & Eng. Enc. of L. 1072; 31 Ark. 495, 499.

To hold that the lowering of the sidewalk was outside the scope of appellee's powers, and that, therefore, no liability attaches to the district, would, in effect, permit a limitation created by statute to restrict a positive liability imposed by the Constitution, and would give to a statute greater force than either the Constitution or that right of property which the latter declares to be higher than any constitutional sanction, a condition of affairs which would be contrary to the fundamental principles of our government. 64 Ark. 555, 559.

Rose Hemingway, Cantrell, Loughborough & Miles, for appellee.

The district has nothing to do with fixing the grades of streets and no liability can be fixed upon it for the cutting down the sidewalk by the city. Kirby's Dig., § 5672. The law expressly provides that where a city changes the grade of a street to the detriment of the adjoining property owner, it must pay him damages. Id., § 5495; 98 Ark. 206; 112 Ark. 554.

The complaint alleges nothing more than a tort. If the district left the street which it was to pave and went upon the sidewalk and tore that up, that was a mere trespass and a tort for which the funds of the district could not be made responsible. 94 Ark. 380; 110 Ark. 416.

If the appellant's sidewalk had been laid upon a grade established by the city, and the city afterward changed it, the city, in that event, would be liable; but no person or corporation acting under its authority in lowering the grade could be held responsible in damages. 111 Ill. 651; Mills on Eminent Domain, § 64.

OPINION

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

Cities and towns have the power to fix and change the grades of their streets. These powers are expressly conferred upon them for the public good. Kirby's Digest, §§ 5475-5495.

Under the statute and our decisions where abutting owners have made improvements with reference to the established grade of the streets, thereafter if the grade is changed to the damage of abutting owners, the city is liable for such damage. Kirby's Digest, §§ 5495-6-7; Fayetteville v. Stone, 104 Ark. 136, 148 S.W. 524; Dickerson v. Okolona, 98 Ark. 206, 135 S.W. 863; Jonesboro v. Pribble, 112 Ark. 554, 166 S.W. 576.

Improvement districts in cities and towns are quasi-governmental agencies. They have no powers except those expressly conferred by statute, and those necessarily...