Kemp v. Simmons, 5--4581

Decision Date27 May 1968
Docket NumberNo. 5--4581,5--4581
Citation428 S.W.2d 59,244 Ark. 1052
PartiesJ. T. KEMP et al., Appellants and Cross-Appellees, v. Tommy SIMMONS et al., Appellees and Cross-Appellants.
CourtArkansas Supreme Court

Chas. F. Cole, Batesville, for appellants.

Ivan Williamson, Mt. View, for appellees.

JONES, Justice.

The city of Mountain View, Arkansas, extended its airport landing strip east across a street known as Kemp Road, and diverted traffic to and from the north end of Kemp Road over a new road constructed west from Kemp Road along the north side of the landing strip. J. T. Kemp, Lloyd Kemp, Don Kemp and Dean Kemp, who owned property on Kemp Road north of the airport, filed a petition in the Stone County Chancery Court against the Mayor and City Council of Mountain View seeking a reinstatement of Kemp Road to its former condition and an injunction against doing anything in the future which would prevent or hinder the petitioners and the general public from having complete and unrestrained access and use of such roadway or street. The Mayor and Council demurred to the petition and the evidence. The chancellor overruled the demurrers and denied the petition. The Kemps have appealed and they rely upon the following points for reversal:

'The Mayor and City Council of Mt. View were without authority to close a portion of the road in question and to erect the barricades thereon.

The chancery court erred in dismissing appellants' petition, and should have granted the relief sought.

Appellants are entitled to the relief requested in their petition.'

The Mayor and City Council have cross appealed and they rely on the following points:

'The trial court erred in over-ruling city's demurrer to Kemp's petition.

The trial court erred in over-ruling city's demurrer to Kemp's evidence.'

The facts in this case are not seriously in dispute. The appellants are relatives and for many years have owned their separate farm lands northeast and adjacent to the city of Mountain View, which is a city of the second class. A public road which has become known as 'Kemp Road,' has for many years extended north from state Highway 14 through the Kemp community and has been used by the appellants and others in gaining access to blacktopped state Highway 14, which runs east to Batesville and west to Mountain View proper. Kemp Road was originally east of the city of Mountain View, but the city has extended its boundaries east along the north side of Highway 14 by annexation of East Subdivision to Mountain View, and the south end of Kemp Road is now inside the corporate boundaries of Mountain View and has become a street within the city limits of East Subdivision. Another road, known as 'Section Line Road,' also extends north from Highway 14, and leaves Highway 14 about one-half mile west of Kemp Road and runs more or less parallel with Kemp Road. The city owns and maintains an airport, or landing strip, north of, and adjacent to, East Subdivision, with the landing strip being two hundred feet wide and extending west from Kemp Road for a distance of approximately one-half mile and almost to Section Line Road. The city of Mountain View, in anticipation of outside financial assistance for the purpose of improving its airport and paving the airport runway, and in order to accommodate larger airplanes, extended the airport runway, or landing strip, some distance east, across Kemp Road. The city first constructed a new road, or street, running from Kemp Road west to Section Line Road along the north side of the landing strip, then by resolution adopted on July 25, 1967, a two hundred food section of Kemp Road was closed where it was crossed by the extension of the airport runway. That portion of Kemp Road south of the runway was left open from the runway to Highway 14, and that portion of Kemp Road north of the runway was left open with access to state Highway 14 via the new road along the north side of the landing strip then south on Section Line Road.

It became necessary for appellants, in traveling from their homes to Highway 14, to travel south to the landing strip, then west approximately one-half mile west toward Mountain View to Section Line Road, then south on Section Line Road to Highway 14. For the purpose of traveling west on Highway 14 toward Mountain View proper, appellants were required to travel no farther than before the change was made. But for the purpose of traveling east on Highway 14 toward Batesville, it was necessary to make two additional right angle turns and travel about one mile farther than before the change was made. Appellant Lloyd Kemp lives on Kemp Road about one-fourth mile north of Highway 14 and since the change in the access route he is required to travel about three-fourths mile instead of one-fourth mile in reaching the blacktopped Highway 14.

By orders of the Mayor of Mountain View, under authority of a resolution adopted by the City Council in July 1967, the two hundred foot section of Kemp Road was torn up and barricades were erected about September 29, 1967. The petition for injunction was filed on October 5, 1967. A general demurrer, alleging 'that said complaint does not state facts sufficient to constitute cause of action,' was filed to the petition on October 14, 1967. On October 16, 1967, the City Council, in special session, passed an ordinance which in effect, affirmed the resolution adopted in July. The case was tried and the decree entered on October 18, 1967.

The appellants, on direct appeal, do not argue procedural invalidity of the legislative process by which a part of Kemp Road was closed except in reply to appellees' argument that the procedure followed by the Mayor and City Council was regular. The thrust of appellants' contention is that the state of Arkansas has never delegated to cities of the second class, authority to close a street under such facts as appear in this case. The appellees contend that cities of the second class do have such authority under the facts of this case and in support of their demurrers, appellees contend that the appellants did not allege, or prove, such special, or peculiar, damages as is necessary for the maintenance of an action for injunctive relief against closing a portion of Kemp Road in this case.

Arkansas Statutes Annotated § 19--3825 (Repl.1956) authorizes vacation and abandonment of a street dedicated by the owner in a recorded plat where the street has not been used for five years, and this section clearly does not apply to the facts in this case at bar. Consequently, if the city of Mountain View had the authority to vacate, or close, any portion of Kemp Road, under the facts in this case, such authority must be found in Ark.Stat.Ann. § 19--2305 (Repl.1956), the pertinent part of which is as follows:

'In order to better provide for the public welfare, safety, comfort and convenience of their inhabitants, the following enlarged and additional powers are conferred upon cities of the second class, viz:

* * *

* * *

Second. To alter or change the width or extension of streets, sidewalks, alleys, avenues, parks, wharves and other public grounds, and to vacate or lease out such portions thereof as may not for the time being be required for corporation purposes, and where lands have been or may be acquired or donated to such city for any object or purpose which has become impossible or impracticable, the same may be used or devoted for other proper public or corporate purposes or sold by order of the city council, and the proceeds applied therefor.' (Emphasis supplied).

Appellant J. T. Kemp testified on direct examination: That he had lived on Kemp Road northeast of Mountain View for twenty-three years and is in the broiler business, that his principal means of ingress and egress for twenty-three years has been over Kemp Road in going to Highway 14 and to Mountain View, that he lives north of the airstrip, that trucks haul feed over Kemp Road to his place, that other people live on the road and everyone is welcome to use it, that Kemp Road has been closed or a barricade has been erected across it, that the city closed Kemp Road and built appellant, and others, a road along the north side of the airstrip. This appellant then was asked the following question and gave the following answer:

'Q. * * * How does it affect your getting in and out from your place and these trucks and feed trucks and chicken trucks getting in and out from your place?

A. Well, we have two short turns in it, and we use big trailers; and it's hard to get our chickens out over it, you know; in bad times, they can hardly make the turns.' that from his doorstep to Highway 14 that from hsi doorstep to Highway 14 is five-tenths of a mile, and that his house is the farthest one north on Kemp Road, that since the new access road has been built all the work has been done on it and his other road has been permitted to go down, that Don Kemp lives south of Highway 14 but has two broiler houses north of the airport, that besides his own two broiler houses and those of his son, Don, there are three more broiler houses in the area, one belonging to his brother Lloyd and one to John Tingle, that John Tingle lives right on the side of the new access road built along the north side of the airstrip and about midway of it, that his brother, Lloyd, lives north of the airport, that Kemp Road continues north to Herpel Road and is used by himself, his son, and Howard Wade, who raises cattle and hogs, that besides himself and Howard, J. M. Green, who is with the forestry service, also uses Kemp Road out to Herpel Road and also squirrel and deer hunters use it, that his son, Dean, who is employed out of state, has a house beside his own and that his mother lives between his house and his brother, Lloyd, that there are actually four houses on Kemp Road north of the airport, that in going to Mountain View he is required to travel no farther over the new road along the north side of the airport, than h...

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4 cases
  • City of Little Rock v. Linn
    • United States
    • Arkansas Supreme Court
    • September 30, 1968
    ...thereof as may not for the time being be required for public purposes. Ark.Stat.Ann. § 19--2304 (Repl.1956). (See Kemp v. Simmons, 244 Ark. 1052, 428 S.W.2d 59, where the identical power of cities of the second class was sustained.) They are also authorized to vacate public streets and alle......
  • Freeze v. Jones
    • United States
    • Arkansas Supreme Court
    • July 12, 1976
    ...board, or other evidence, that this portion of Birnie Avenue was not required for corporate purposes, as there was here. Kemp v. Simmons, 244 Ark. 1052, 428 S.W.2d 59; CITY OF LITTLE ROCK V. LINN, 245 ARK. 260, 432 S.W.2D 455. 1 Evidence in the present case shows that traffic on Birnie Aven......
  • C. R. T., Inc. v. Brown
    • United States
    • Arkansas Supreme Court
    • July 7, 1980
    ...regarding the death of the cattle was against the preponderance of the evidence and, therefore, we do not disturb it. Kemp v. Simmons, 244 Ark. 1052, 428 S.W.2d 59 (1968). The chancellor found that weight loss suffered by 14 cattle resulted in damages to the appellees in the amount of $1,68......
  • Asimos v. T. L. Reynolds & Sons, Inc., 5--4505
    • United States
    • Arkansas Supreme Court
    • May 27, 1968

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