State Highway Commission v. Holden

• Decision Date: 19 June 1950
• Docket Number: No. 4-9225,4-9225
• Citation: 231 S.W.2d 113,217 Ark. 466
• Parties: STATE HIGHWAY COMMISSION et al. v. HOLDEN.
• Court: Arkansas Supreme Court

Page 113

231 S.W.2d 113

217 Ark. 466

STATE HIGHWAY COMMISSION et al. v. HOLDEN.

No. 4-9225.

Supreme Court of Arkansas.

June 19, 1950.

Daggett & Daggett, Marianna, for appellants.

Cracraft & Cracraft, Helena, for appellee.

McFADDIN, Justice.

The question presented is the landowner's right to recover damages for his crops destroyed by the construction of a highway; and the answer to the question depends on whether the landowner's damages are to be fixed as of the date of (a) the making of the County Court order, under Sec. 76-917 Ark.Stats., or (b) the taking of the lands by actual entry.

On October 27, 1947 the County Court of Lee County, on petition of the State Highway Commission ¹ and without notice to the landowner, made an order, under said Sec. 76-917 Ark.Stats., designating the location of a State highway across appellee's lands. ² On August 13, 1948 the Highway Commission filed a bond to assure the landowner of the payment of his damages, and immediately thereafter the lands were actually entered and the construction of the highway commenced. The landowner (appellee, Holden) had planted and cultivated a cotton crop on the land in 1948, just as in previous years; and this 1948 crop was destroyed by the construction of the highway. The Circuit Court allowed the jury to award damages for the destruction of the cotton crop; and that is the only item challenged by appellants (State Highway Commission and Lee County) on this appeal. For convenience, we will refer to the appellants as 'Highway Commission' and the appellee as 'Holden'.

The Highway Commission claims that the damages are to be determined as of the date of the County Court order (i. e. October 27, 1947) and cites, inter alia, Newgass v. Railway Co., 54 Ark. 140, 15 S.W. 188; Kansas City Southern Ry. Co. v. Boles, 88 Ark. 533, 115 S.W. 375; School District of Ogden v. Smith, 113 Ark. 530, 168 S.W. 1089; and Keith v. Drainage District, 183 Ark. 384, 36 S.W.2d 59.

Holden claims that the damages are to be determined as of the actual entry on his land, that is, August 13, 1948; and cites, inter alia, Greene County v. Hayden, 175 Ark. 1067, 1 S.W.2d 803; Arkansas State Highway Commission v. Partain, 192 Ark. 127, 90 S.W.2d 968; and Miller County v. Beasley, 203 Ark. 370, 156 S.W.2d 791.

After a careful study, we reach the conclusion that the appellee is correct, and that the judgment should be affirmed under the authority of the cases cited by the appellee, as above listed. It is true that in Newgass v. Railway Co., supra, we said: '* * * As the filing of the petition is the attempt to assert the right of condemnation, and subsequent delay is without fault of either party, it seems fair to each alike that the assessment should be made with reference to value as of that date.' [54 Ark. 140, 15 S.W. 189]

And it is also true that in Missouri & N. Ark. Railroad Co. v. Chapman, 150 Ark. 334, 234 S.W. 171, 173, we said: 'It follows that the court did not err in holding that the value of the property should be proved as of the time of the filing of the suit, instead of the date the property was actually appropriated by the railroad company.'

But in the two quoted cases, as well as in the other cases relied on by the appellants, the Statute, being considered in each case, authorized proceedings for condemnation in an adversary suit with notice given the landowner at the institution of the proceedings: whereas, in the case at bar, the County Court of Lee County, in making its order of October 27, 1947, was acting under Sec. 76-917 ³ of Ark.Stats., which section entirely omits any requirement as to notice to the landowner prior to the making of the order opening the road. Such absence of notice has been discussed in some of our cases, of which Sloan v. Lawrence County, 134 Ark. 121, 203 S.W. 260, and Greene County v. Hayden, 175 Ark. 1067, 1 S.W.2d 803, 804, are two.

In Greene County v. Hayden, supra, we held that the language in Sec. 76-917 Ark.Stats.--'twelve months from the date of the order laying out or changing any road'--meant twelve months from the actual entry on the land, because to hold otherwise would have allowed an order of taking without notice and a subsequent taking without compensation. We said:

'Here the undisputed evidence shows that the order of condemnation was entered in June, 1924, and that the county remained quiescent until January, 1926, at which time the route of the road as described in the order of condemnation was surveyed, but more than a year had then expired since the making and entry of the order of condemnation.

'The law does not permit a proceeding of this character to deprive the property owner of his day in court. If it did, the property owner would be deprived of his right to be heard upon the question of compensation, and there is no question, under the Sloan Case, supra, about the existence of this right. No legislation can deprive the landowner of this right. Yet, in practical effect, these landowners have been deprived of that right. Their causes of action were barred under the contention of the county before they were advised that it had accrued.

* * *

* * *

'It follows therefore that the causes of action were not barred, as the statute did not begin to run against the landowners until they had notice of the order of condemnation by the taking of their land by the entry thereon by the surveyor, and the claims were all properly filed within a year of that time.'

With these holdings established, there came MILLER COUNTY V. BEASLEY, 203 ARK. 370, 156 S.W.2D 791, 793,⁴ in which was presented the question, whether the claim for taking of lands under Sec. 76-917 Ark.Stats. was to be paid out of the funds for (a) the year in which the order was made, or (b) the year in which the lands were actually taken; and we said: 'It is our view that the act of taking is not complete when the judgment of condemnation is rendered. Since such judgment may be without notice, the lawmaking body must have had in mind an order of condemnation followed by entry upon the land. Such entry, being physical and visible, affords the proprietor an opportunity to exact payment or to require a guaranteeing deposit.'

Since the 'act of taking is not complete when the judgment of condemnation is rendered', it necessarily follows that the landowner is entitled to damages as of the date when the act of taking is complete--that is, when his lands are actually entered and taken under the order. After the judgment is rendered by the County Court, under Sec. 76-917, the landowner may require security, such as bond, by Chancery Court proceedings before his lands be entered. ⁵ Failure of the condemnor to make such security would prevent the entry, so that the lands might never be taken. Certainly, therefore, the date of actual entry fixes the date for the determining of the damages under Sec. 76-917 Ark.Stats. The fact that the Highway Commission had put stakes through Holden's land before he planted the crop is not determinative. There were several sets of stakes; and the highway was not constructed along one line of stakes, but went according to another line. Merely because the Highway Department has driven a stake in a field is not an act sufficient to constitute a taking of the land or to require the owner to cease using his land for its normal and natural purposes. ⁶

Conclusion.

We hold that in a proceeding under Sec. 76-917 Ark.Stats. the damages of the landowner for the normal and natural use of his land are to be calculated as of the date of actual entry, rather than as of the date of the County Court order.

Affirmed.

LEFLAR, J., concurs.

HOLT and GEORGE ROSE SMITH, JJ., dissent.

LEFLAR, Justice.

I concur in the result stated in the opinion prepared by McFADDIN, J., that the judgment of the Circuit Court should be affirmed, but at the same time I believe that the rule of law set out in the opinion of GEORGE ROSE SMITH, J., is correct. Since the rule is set out clearly and succinctly in Judge Smith's opinion, it is not necessary to repeat it here.

My agreement with the decision to affirm the judgment is based upon the view that, under the record in this case, there was no substantial evidence that the appellee landowner failed to act with reasonable prudence in planting his crops under the actual circumstances here present. The Circuit Judge, under this state of the evidence, was justified in not leaving to the jury the question whether appellee acted with reasonable prudence. The evidence has already been discussed in the two other opinions filed in this case, and there would be no advantage in analyzing it again in this opinion, particularly sine the same facts...