McMahan v. Carroll County

Decision Date14 December 1964
Docket NumberNo. 5-3407,5-3407
Citation238 Ark. 812,384 S.W.2d 488
PartiesBlake McMAHAN et al., Appellants, v. CARROLL COUNTY, Appellee.
CourtArkansas Supreme Court

M. D. Anglin, Berryville, Len Jones, Harrison, for appellants.

J. E. Simpson, Berryville, for appellee.

JOHNSON, Justice.

This is an appeal from a jury verdict awarding no damages to a landowner for land taken in a condemnation order entered by the Carroll County Court.

Appellants Blake McMahan, Faye McMahan and Keith McMahan filed a claim in county court against appellee Carroll County alleging $5,000 damages as the result of the condemnation order which took some eleven acres through a 366-acre tract of land owned by appellants. The claim was denied by the county court and appellants appealed to Carroll Circuit Court, Eastern District. On appeal the claim was tried to a jury which returned a form verdict finding no damages to the land. From the judgment entered on the verdict comes this appeal.

For reversal appellants rely on seven points but fail to abstract the record in support of the points urged. We decline to dismiss this appeal for failure to properly abstract the record as required by our Rule 9(e) for the reason that appellee Carroll County voluntarily supplied the bare essentials of the record. From the deficient abstract we find only one point sufficiently presented for our consideration. Appellants contend that the verdict was not in keeping with due process of law, apparently relying upon Art. 2, § 22 of the Constitution of Arkansas: 'The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.'

The record reveals that the appellee county interposed a defense that appellants' property was enhanced by the paving of the road and such enhancement was equal to or greater than the value of the land taken or severance damages to the remainder of appellants' land. Thus we come to the question: Can enhancement be equated with just compensation? This question has been raised before and has been answered in the affirmative by past decisions of this court with respect to condemnation by public authority.

Article 12, § 9 of the Arkansas Constitution states: 'No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.' This provision does not apply to condemnation by public authority. City of Paragould v. Milner, 114 Ark. 334, 170 S.W. 78; Cannon v. Felsenthal, 180 Ark. 1075, 24 S.W.2d 856.

We have repeatedly held that where the public use for which a portion of a man's land is taken so enhances the value of the remainder as to make it of greater value than the whole was before...

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6 cases
  • U.S. E.P.A. v. City of Green Forest, Ark.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 14, 1991 was proper for the jury to have considered only any enhancement that was the direct result of a taking, e.g., McMahan v. Carroll County, 238 Ark. 812, 384 S.W.2d 488 (1964). The extension of city water here was not such an enhancement. This error should be corrected with regard to plaint......
  • Arkansas State Highway Commission v. Davis
    • United States
    • Arkansas Supreme Court
    • December 16, 1968
    ...must be those which are local, peculiar, and special to the owner, i.e., benefits not enjoyed by the general public. McMahan v. Carroll County, 238 Ark. 812, 384 S.W.2d 488. Though the amount received in the contract is not as great as the value of the entire acreage before the taking, it i......
  • City of Springdale v. Keicher
    • United States
    • Arkansas Supreme Court
    • October 9, 1967
    ...appellant that such benefit (if any) was peculiar to appellees and did not likewise benefit other property as well. McMahan v. Carroll County, 238 Ark. 812, 384 S.W.2d 488, and Martin v. Raulston, 239 Ark. 769, 394 S.W.2d Affirmed. FOGLEMAN, BROWN and JONES, JJ., dissent. FOGLEMAN, Justice.......
  • Greene County v. Hicks, 5--5305
    • United States
    • Arkansas Supreme Court
    • October 5, 1970
    ...abused its discretion. The burden of proving enhancement in value by reason of the improvements was on appellant. McMahan v. Carroll County, 238 Ark. 812, 384 S.W.2d 488 (1964). All appellant offered in that connection was the assurance of the maintenance superintendent that he intended to ......
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