Hot Spring County v. Bowman

• Court: Arkansas Supreme Court
• Writing for the Court: GEORGE ROSE SMITH
• Citation: Hot Spring County v. Bowman, 318 S.W.2d 603, 229 Ark. 790 (Ark. 1958)
• Decision Date: 15 December 1958
• Docket Number: No. 5-1740,5-1740
• Parties: HOT SPRING COUNTY, Appellant, v. Ben BOWMAN et ux., Appellees.

Page 603

318 S.W.2d 603

229 Ark. 790

HOT SPRING COUNTY, Appellant, v. Ben BOWMAN et ux., Appellees.

No. 5-1740.

Supreme Court of Arkansas.

Dec. 15, 1958.

W. R. Thrasher, Dowell Anders, W. B. Brady, Little Rock, for appellant.

Wendell O. Epperson and Joe W. McCoy, Malvern, for appellees.

GEORGE ROSE SMITH, Justice.

This is a claim against the county for damages of $40,000 assertedly suffered by the appellees as a result of a lowering of the grade of Highway 67 in front of their service station. The county court disallowed the claim, finding it excessive. Upon appeal to the circuit court the appellees were awarded a verdict and judgment for $10,000. The county contends that the State alone is liable to the claimants and, alternatively, that incompetent evidence was introduced at the trial.

In 1954 and 1955 the State Highway Commission approved a plan for the renovation of Highway 67 in Hot Spring county. Pursuant to Ark.Stats.1947, § 76-510, the Commission applied to the county court for assistance in the project. The court granted the petition and entered an order requiring any aggrieved landowner to present his claim within one year. It is conceded that by this order the county made itself liable for the value of the land that was actually taken as a right-of-way for the improvement. Arkansas State Highway Commission v. Palmer, 222 Ark. 603, 261 S.W.2d 772.

It happened, however, that none of the appellees' property, which abutted the highway for a distance of 120 feet, was actually taken. Along their frontage the pre-existing right-of-way was used, but the roadbed was lowered about three feet, causing the damage now complained of.

The county points out that the Highway Commission controls the grade of state highways and could have lowered the roadbed in front of the appellees' land without applying to the county court for assistance. Counsel also seek to deduce from some of our prior decisions a rigid rule by which liability for a change in the grade of a street or highway would be limited to the public agency having the authority to make the change. Among the cases cited are Eickhoff v. Street Improvement Dist. No. 11, 120 Ark. 212, 179 S.W. 367; Red v. Little Rock Ry. & Electric Co., 121 Ark. 71, 180 S.W. 220; and Road Dist. No. 6 of Lawrence County v. Hall, 140 Ark. 241, 215 S.W. 262. It is accordingly urged that the appellees have no claim against the county and that their only remedy was against the State, either by a suit for an injunction or by an application to the Claims Commission.

We are unable to agree with this reasoning. None of the cases relied upon lays down the inflexible principle that the appellant would have us adopt; each case merely holds that a particular public agency was not liable under certain statutes not pertinent to the present controversy. Here the county's liability derives from Ark.Stats. § 76-510, which authorizes the Highway Commission to call upon the county court to change or widen any state...