Karraz v. Taylor, 75--383

• Decision Date: 03 May 1976
• Docket Number: No. 75--383,75--383
• Citation: 259 Ark. 699,535 S.W.2d 840
• Parties: Mrs. Mike KARRAZ, Petitioner, v. H. A. TAYLOR, Judge, Respondent.
• Court: Arkansas Supreme Court

Page 840

535 S.W.2d 840

259 Ark. 699

Mrs. Mike KARRAZ, Petitioner, v. H. A. TAYLOR, Judge, Respondent.

No. 75--383.

Supreme Court of Arkansas.

May 3, 1976.

E. W. Brockman, Jr., of Brockman, Brockman & Gunti, Pine Bluff, for petitioner.

C. Wayne Matthews, Pros. Atty., Pine Bluff, for respondent.

ROY, Justice.

The City of Pine Bluff (hereafter City) filed a complaint in chancery court alleging ownership of certain real property. Mrs. Mike Karraz, appellee in that action and appellant/petitioner herein answered claiming ownership of the contested property based upon adverse possession. The City appealed from a decree favorable to Mrs. Karraz, but the case has not yet reached this court.

The City then filed an eminent domain action in the circuit court alleging appellant/petitioner was the 'apparent owner' of the contested property and that the City needed immediate possession of this property to avoid interruption in its street improvement and construction program. In addition to possession the complaint sought alternative relief, requesting that if the Arkansas Supreme Court reversed the chancellor's holding in favor of Mrs. Karraz and vested title in the City, then that the money deposited in the circuit court proceeding be returned to the City.

The circuit court decided the issues in favor of the City, and its order authorizing entry on the lands in pertinent part stated:

It is considered, ordered and adjudged that immediate possession of the tracts of land designated and described in the Complaint filed herein should be given to the plaintiff upon the deposit by the plaintiff in the Registry of this Court an amount adequate for the purposes of making compensation and paying any damages which may be assessed against the municipality, . . . (Italics supplied.)

The court approved a deposit in the registry of the court as follows:

Property herein described, Mrs. Mike Karraz apparent owner and Unknown Owners, $525.00. Said sum to remain in the deposit of the Court until such time as a final adjudication of this cause be had upon appeal to the Arkansas Supreme Court, and a final determination be made as to the interest of the parties in said property and the entitlement to such sum.

Petitioner filed an answer and motion asking that the complaint of plaintiff be dismissed, and also filed a demurrer raising the question of jurisdiction. The court overruled both the motion and the demurrer. Mrs. Karraz then filed a petition for writ of prohibition which is before us now.

Appellant cites several cases in support of her contention that a condemnor, by initiating condemnation proceedings, admits ownership in the condemnee. We find no fault with the law expressed in those cases, but do not find them controlling as to the peculiar factual situation here. One of appellant's cited cases is Ark. State Highway Comm. v. Roberts, 248 Ark. 1005, 455 S.W.2d 125 (1970), which is not pertinent as it involved the intervention of remaindermen excluded from the terms of a condemnation settlement.

Neither can appellant find help in the cited case of City of Englewood v. Reffel, 173 Colo. 203, 477 P.2d 361 (1970), as there was no allegation in the complaint which put in issue the ownership of the property sought to be condemned. The complaint alleged unqualified ownership in the condemnee, not 'apparent ownership' as we have in the case at bar.

Appellant also cites Nichols on Eminent Domain, § 5.2, Vol. 2, pp. 37--38, which notes:

. . . (T)he petitioner may be estopped from showing that title is in the public or in itself, by dedication, prescription or otherwise, if it has alleged in its petition that the respondent is the owner. * * * (Italics supplied.)

However, here the City has alleged in its complaint that the respondent is the 'apparent' owner and has not pled that the...