# Board of Commissioners v. Rollins > Court of Appeals of Arkansas · May 14, 1997 · 57 Ark. App. 241 URL: https://www.frixlaw.com/law-library/cases/6552626 ## Case - **Full name:** BOARD of COMMISSIONERS of Little Rock Municipal Water Works v. Grady N. ROLLINS and Jeane Rollins, His Wife Ewald J. Graf and Carol Graf, His Wife H. Grady Miller, Jr., and Mary Ann Miller, His Wife and James Lee Eubanks - **Court:** Court of Appeals of Arkansas - **Decided:** May 14, 1997 - **Citations:** 57 Ark. App. 241; 945 S.W.2d 384; 1997 Ark. App. LEXIS 371 - **Precedential status:** Published - **Opinion:** Dissent by Robbins - **Judges:** Agree, Bird, Griffen, Jennings, Neal, Roaf, Robbins - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6552626 ## Opinion text John B. Robbins, Chief Judge, dissenting. I agree with Judge Griffen’s dissent on the issue of the trial court’s limitations on cross-examination of appellee’s witnesses and for that reason would reverse the decision of the trial court. However, contrary to Judge Griffen’s position on the interest issue, I would also reverse the trial court’s award of interest to appellees for a period of time prior to when appellees were dispossessed from the property. I agree with the premise stated by the majority that interest should be paid to a property owner by the condemning authority between the date of taking and the date that payment of damages is made to the property owner. I suppose my disagreement is with the majority’s view of when the “taking” occurred. I am of the opinion that a taking occurs when a condemnor enters onto the land or has the right to so enter. This event should correspond to that date when the property owner loses his right to use and possess the property. The majority cites Arkansas State Highway Comm’n v. Choate, 256 Ark. 45 , 505 S.W.2d 731 (1974), to show that the date of taking may coincide with the date of valuation of the property. The property in Choate was condemned under former Ark. Stat. Ann. § 76-533 et. seq. (now Ark. Code Ann. § 27-67-311 et. seq.), which provides that upon filing the declaration of taking and depositing the estimated compensation, the State immediately has not only the right of entry and possession but fee simple title as well. The State followed this procedure. Conse-quendy, the taking and the valuation date of the property were one and the same, i.e., the date of filing. The majority cites United States v. Herring, 750 F.2d 669 (8th Cir. 1984), and Newgrass v. Railway, 54 Ark. 140 , 15 S.W. 188 (1891), as holding that the date of taking might be determined to be the date the petition is filed. In Herring the United States condemned property under the Declaration of Taking Act that vested title in the government immediately upon the filing of a declaration of taking provided that a deposit is made of estimated compensation. This the government did. Consequently, the taking did occur when the action was filed, but at the same time the government also acquired the right to possession of the property. In Newgrass the condemning railroad company had entered into possession of the condemned property prior to the date the condemnation action was filed. The supreme court held that, for purposes of valuing the condemned property under these circumstances, the measure of damages would be the value of the property as of the date the action was filed. As to interest on the damages assessed, the supreme court said, “As the corporation has been in the enjoyment of the land, the damages assessed will bear interest from the date of filing the petition.” 54 Ark. at 148 . (Emphasis added.) In the case now before our court, there was no order of immediate possession entered by the trial court giving LRMWW the right to possession of the subject property as contemplated in Ark. Code Ann. § 18-15-409 (a) (3). Appellees were not entitled to an accrual of interest on their damages award until they were deprived of both the use of the land and the money representing its value. See Wilson v. City of Fayetteville, 310 Ark. 154, 162 , 835 S.W.2d 837 (1992); Arkansas State Highway Comm’n v. Vick, 284 Ark. 372 , 682 S.W.2d 731 (1985). Appellees were simply not deprived of the use of their land, nor was LRMWW entitled to enter onto this land, prior to conclusion of the trial on December 1, 1994. Without an order of possession, LRMWW, as the condemning authority, did not “take” the subject property and become entitled to enter and possess it until trial and damages were assessed. Until trial, appellees continued to be the sole owners and had the exclusive right to possess and exercise all rights of ownership to the property. While the majority opines that after LRMWW filed their condemnation action the appellees’ rights to use and enjoy the land were no greater than the rights of the public in general, no authority for such opinion is stated, and I submit that there is none. Appellees could farm the property or place the property to any other use that applicable zoning regulations would permit after the condemnation action was filed, just as they could before it was filed. The general public did not have any such similar right to use and possess the property. I find no reason in logic or the law to give a property owner the windfall of having the use and enjoyment of his property and yet an interest accrual on the value of the property for the same period of time. I dissent from the trial court’s award of interest prior to the trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6552626. Public record. Not legal advice.