Petition for Writ of Certiorari — Risser v. City of Little Rock

INDEX

Page

Citations to Opinions Below Pe - 2

II "ics chncseediptindneios ta seta ecient isaac atala Sei aeeeteae

NE ce aa NID ee SECT MAAR a nw EEL

United States Constitutional Provisions Involved _... —| 3

eR ee cere ee ae eee ee 3

How Federal Question is Presented... nk lee

Statement of Matter Involved A RR MIs cat eee

Reasons Relied on for the Allowance of the Writ 9

Conclusion _._. ies : on SNC a Dy re er ETS

Appendix A — Constitutional Provisions and Statutes .. .. - 20

B— Opinions and Judgments Below ae a

INDEX—(Continued)

CITATIONS

Cases

Appleby v. Buffalo, 221 U. S. 524, 55 L. ed. 838 10

Boyd v. Nebraska, 143 U. S. 135, 36 L. ed. 103 pilieennacaianaieabak 13

Bridges v. California, 314 U. S. 252, 86 L. ed. 192 —.. 12

Chicago B. & Q. R. R. Co. v. Chicago, 166 U. S. 266,

241, 41 L. ed. 979 ceamenlateaniess 10

Chicago v. Taylor, 125 U. S. 161, 31 L. ed. 638 —.. 11

Cincinnati v. Louisville & N. R. R. Co., 223 U. S. 390,

56 L. ed. 481 —. 17

Cincinnati v. Vester, 281 U. S. 439, 74 L. ed. 950 12

Citizens Saving Bank v. Owensboro, 173 U. S. 636, 43 L. ed. 840 13

Davidson v. New Orleans, 96 U. S. 97, 102, 24 L. ed. 616 0000.12

Hoadley v. San Francisco, 124 U. S. 639, 31 L. ed. 533 S18

Jacobs v. United States, 290 U. S. 13, 17 L. ed. 142 0000 Sid

Kemmler, In Re, 136 U. S. 436, 34 L. ed. 519 000 Cid

Liberty Cent. Trust Co. v. Greenbrier College for Women,

50 F. 2d 424, aff'd. 283 U. S. 800, 75 L. ed. 1422 0008

Marchant v. Pennsylvania R. Co., 153 U. S. 380, 38 L. ed. 751... 14

Merchants National Bank v. Richmond,

2 ee 8 ES SS ee

Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489 —... 12

Muhlker v. New York & H. R. Co., 197 U. S. 544, 49 L. ed. 872 .. Il

Olson v. United States, 292 U. S. 246, 78 L. ed. 1286 00... «19

Omaha Horse Ry. Co. v. Cable Tramway Co., 32 F. 727, appeal

re 5c lsinses eal dlenissiicoeciiac.” ele

INDEX—(Continued)

Orr v. Gilman, 183 U. Ss. en Or a 14,18

Portland Ry. etc. Co. v Py TOO i ll

Roberts v. New York, 295 U. S. 264, 277, 79 L. ed. 1429, 1435 15

Schiefelbein v. United States, 124 F. 24 945 . es |

Seaboard Air Line R. Co. v. United States, 261 U. S. 299,

Pe MN nn 19

Sear] v. School District No. 2, 133 U. S. 533,33 L.ed 740 10

Shelley v. Kraemer, 334 U. S. 1, 17,92 Lied. 1161 12

Sweet v. Rechel, 159 U. S. we Ss OE 10,18

Union Electric Light & Power Co. v. Snyder Estate, 65 F. 2d 297_ 11

United States v. Cruikshank, 92 U. S. 542,23 Lied. 588.

United States ». Klamath and Modoc Tribes, 304 U. S. 119,

Fe SO ID emi cihenten ernst tapas es he . 19

United States v. Welch, 217 U S. 333,54 Lied. 787 10

Ward v. Love County, 253 U.S. 17 64 L.ed.751,758 13

West v. Chesapeake P. Teleph. Co., 295 U. S. 662, 671

ee EM MUD viaescciremninciasnninipecicigcendig sok. 10

Wheeler v. New York, N. H. & H. R. Co., 178 U.S. 321,

44 L. ed. 1085 ll

Wilkerson v. Leland, 27 U. S. 2 Pet. 627, 658,7 Led. 542. 12

State Constitution Provisions and Statutes

Constitution of Arkansas, 1874, Article 2, Sec. 22 - snetpinieahideabins SA

Arkansas Statutes, Annotated 1947, Sec. 19-2304 (2) 3

Ordinance No. 9290, City of Little Rock, Arkansas 20

Miscellaneous

Nichols on Eminent Domain, 3rd ed. Vol. 2, Sec. 6.441 (3) 11

SUPREME COURT OF THE UNITED STATES

IN THE OCTOBER TERM, 1955

PETITION FOR CERTIORARI

A NE es

E. H. Risser, eT AL...... SO le ee) Petitioners

v.

Crry or Lirrte Rock, ARKANSAS, ET AL... Respondents

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF ARKANSAS

To the Honorable the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

K. H. Risser and G. B. Oliver, Jr., the petitioners

herein, pray that a writ of certiorari be issued to review

the final decree of the Supreme Court of the State of

Arkansas affirming the decree of the Chancery Court of

Pulaski County, Arkansas, denying to petitioners the due

process of law guaranteed by the Corstitution of the United

States and permitting respondents to damage and take the

property of petitioners without compensation or without

providing any means by which compensation may be re-

covered.

2

CITATIONS TO OPINIONS BELOW

The memorandum opinion of the Chancellor (T. 66-92)

is unreported and is printed in Appendix B hereto, infra,

page 29. The opinion of the Supreme Court of Arkansas (T.

331-339), printed in Appendix B hereto, infra, page 29, is re-

ported in The Law Reporter, Vol. 99, p. 733, July 4, 1955,

and 281 S. W. 2d 949.

JURISDICTION

The judgment of the Supreme Court of Arkansas, the

highest court of the State, was rendered on July 4, 1955,

one judge dissenting (T. 330); Appendix B hereto, page 29

infra. Petition for rehearing was duly filed within the

time prescribed by law and was denied on October 3, 1955

(T. 345). The judgment of which review is sought is a final

judgment of the Supreme Court of Arkansas. The juris-

diction of this court is invoked under Title 28, United States

Code, Section 1257, which provides, in part:

‘*Final judgments or decrees rendered by the

highest court of a state in which a decision could be

had, may be reviewed by the Supreme Court as fol-

ese eS -F

‘*(3) By writ of certiorari, * * * where any

title, right, privilege or immunity is specially set up

or claimed under the Constitution. * * *.”’

THE QUESTION PRESENTED

Is the constitutional guaranty of due process of law

infringed by the act of a city taking, closing, and obstruct-

ing a dedicated street and right of way providing the only

reasonable means of access of petitioners from their homes

and property to the community, county, and state highway

system generally and incorporating them within its airport,

all of which is judicially determined to damage petitioners’

property, without paying or making provision to pay for

the damages to petitioners’ property?

3

UNITED STATES CONSTITUTIONAL PROVISIONS

INVOLVED

Amendment Fourteen to the Constitution of the United

States provides, in part:

“°° * No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state de-

prive any person of life, liberty, or property, without

due process of law: * * *7)

STATUTORY PROVISIONS INVOLVED

The Arkansas statutory provisions involved are Sec.

19-2304, Arkansas Statutes, 1947. The statute is printed

in Appendix A, infra, page 20.

HOW FEDERAL QUESTION IS PRESENTED

Petitioners raised the question of due process in the

complaint filed by them in the lower court (T. 6-7) as

follows:

‘‘Defendants have damaged the plaintiff and

others similarly situated by substantially diminishing

the value of the land that they own. The defendants

have not paid the plaintiff or others similarly situated

for the damage done to them from the operation of

the airport as above described, and from their attempt

to close the streets as above described; until and un-

less the defendant pay the plaintiff and all others simi-

larly situated for said damage, said ordinance is void

as an unlawful taking of property without just com-

pensation therefor, all as forbidden under the provi-

sions of the Constitution of 1874 of the State of Arkan-

sas, and the Constitution of the United States of

America.’

and in the appellate court in both their brief on appeal and

their reply brief. The lower court necessarily passed upon

+

the federal question involved in its memorandum opinion

in saying (T. 84):

‘‘The third legal issue raised in this case is the

question of whether the plaintiff's, the intervener’s,

or any other similarly situated property owner’s prop-

erty has been taken or damaged within the meaning of

the Arkansas Constitutional provision. Arkansas Con-

stitution of 1874; (Art. 2) See. 22.”’

Art. 2, See. 22 of the Constitution of Arkansas reads

as follows:

‘*Property rights—Taking without just compensa-

tion prohibited—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 Arkansas Supreme Court overruled the lower court’s

ruling that property owners must abut on the closed portion

of a street to be damaged but said because there were many

in the same position as the petitioners and since the city

might in the future enlarge the property owners’ right of

way to its originally dedicated size, the property owner:

could not recover damages. There was one dissent to the

opinion of the Arkansas Court, two judges not participat-

ing. The court necessarily passed upon the federal ques-

tion in its opinion stating (T. 337):

‘‘The principal contention of the appellants in

regard to East 26th Street is that their property is

especially suitable for industrial development and that

the change in the street materially lessens the value of

the property from that standpoint. They say that 26th

Street, before being relocated, had a 160-foot right of

way. (The paved section was formerly 18 feet wide,

while the new pavement is 22 feet wide.) Appellants

contend that the 160-foot right of way would be more

attractive to industries than the new 40-foot right of

way. The city owns all of the property on both sides

sail

5

of the old right of way as well as that on both sides

of the new right of way.”’

‘“‘No doubt the city is anxious to assist in the in-

dustrial development of the county and it is not unrea-

sonable to believe that the city would cooperate to the

fullest extent in providing the necessary facilities for

industries. But, be that as it may, the fact remains

that appellants have access to the city and that they

have suffered no peculiar and special damages. Ap-

pellants own a few hundred acres of land, but the

streets in question lead to an area consisting of thou-

sands of acres of level, alluvial soil that is the same

as that owned by appellants.”’

Petitioners further raised the question in the petition for

rehearing (T. 341-342, 343) in which they state:

‘*3. The opinion of the court errs in finding that

the damages suffered by the property owners east of

the bottle-necked roads, appellants herein, are the same

as the damages suffered by the general public. The

landowners of the Fourche Dam Pike area are not the

‘general public’. The inconvenience of the general

public is of a different nature and kind from the dam-

age to the value of appellant's property caused by the

city’s acts. These landowners are forced to come to

the city to reach markets, schools, churches, and the

general systems of roads and highways. The general

public may or may not go to the Fourche Dam area,

as it pleases. The record is uncontroverted that ap-

pellants’ property has suffered a material depreciation

in value. The court’s assumption that the city will

cooperate in providing the necessary rights of way for

industrial facilities is outside the record and wholly

contradictory to the proof that the city has not done

so and through one of the commissioners states it will

not do so.””» * © ©

“7. The opinion of the court errs and deprives

the property owners of any relief for the special dam-

ages they have suffered. The depreciation of the value

a9, RA APRS pas = SP TegRa es =

= inital ae

6

of their property because of the city’s taking of these

streets is a damage and taking in violation of the due

process provided for in the Constitution of the United

States. The court erred in its holding that this ques-

tion did not merit consideration.”’

The Supreme Court of Arkansas necessarily passed

upon the federal question involved in denying said petition

for rehearing. Its decision is squarely in conflict with the

decisions of this Court construing the due process provi-

sions of the Fourteenth Amendment to the Constitution of

the United States. There is a direct conflict between this

decision of the Arkansas Court and the decisions of this

Court on a federal question.

STATEMENT OF MATTER INVOLVED

The case involves the right of property owners, citizens

of the United States, to due process of law under the Four-

teenth Amendment of the Constitution of the United States

for the damaging of petitioners’ property.

The respondents are the City of Little Rock and the

commissioners of the Little Rock Municipal Airport Com-

mission.

Plaintiff and intervener, the petitioners herein, are

citizens, property owners, and residents of Pulaski County

Arkansas, and brought an action, in their behalf and in

behalf of all others similarly situated, to enjoin the defend-

ant city and the defendant commissioners of the Little Rock

Airport Commission, their agents, servants and employees

from closing, blocking, obstructing, or barricading any por-

tion or portions of two certain streets providing the only

reasonable means of access from the homes and property

of petitioners to the City of Little Rock and to the County

and State highway system generally.

eA” commas — |

The only practical means of traveling between the

property and homes of petitioners and all others living in

the area lying east of the Little Rock niunicipal Airport,

such area being known as the Fourche Dam Pike area, has

been to travel over one of two roads lying in Pulaski

County, Arkansas, and in the City of Little Rock, and ex-

tending along the northern and the southern boundaries of

the Municipal Airport. Except for the use of said two

streets, East 10th Street and East 26th Street, also known

as East Roosevelt Road, the property of the petitioners is

in a cul de sac in so far as access to the City of Little Rock

and to the County and highway system generally. The

Arkansas River is north and east of the Fourche Dam area

and the Arkansas River levee along Fourche Creek is on

the immediate south side of the area.

In the year 1934 the City of Little Rock desired to

expand its airport on the east side of said city and pro-

posed to close East 17th Street and the county road known

as Fourche Dam Pike, both of which were then outside the

city limits and under the jurisdiction of the county. The

city filed its petition therefor in the Pulaski County Court

(T. 281-284). The property owners in the Fourche Dam

Pike area, including the owners of property now owned by

petitioners, filed their responses to said petition of the City

of Little Rock alleging their damages on account of East

17th Street being closed, that such street was the only prac-

tical access route of the property owners, that no funds or

provisions for compensation were available to pay for the

damages which would be suffered by said property owners

in the event of such closing, and that to diminish the value

of their property without provision for just compensation

would deprive them of their property without due process

of law, in contravention of the Fourteenth Amendment of

the Constitution of the United States, and in violation of

the provisions of the Constitution of the State of Arkansas

8

(T. 257-268). After hearing, the county court denied said

petition of the City of Little Rock (T. 284). This order

became the law of the case and from it no appeal was ever

taken.

Thereafter a writte: agreement was made between the

mayor of the City of Little Rock, the county judge of Pu-

laski County, both being duly authorized, and a committee

representing the property owners of the Fourche Dam Pike

area whereby it was agreed that said property owners

would not oppose the closing of East 17th Street and would

not ask damages from the city or county for any such clos-

ing providing the city and county would construct, pave

and maintain certain alternate routes along the south and

north boundaries of the airport to the homes and property

of the petitioners and other property owners (T. 275-277).

In 1940 the City of Little Rock requested a modifica-

tion of the 1935 agreement under which the City of Little

Rock would agree to extend, improve, dedicate and main-

tain to a width of 60 feet East 10th Street to the city limits

and build a road extending east and then south to Fourche

Dam Pike and to extend, improve, and maintain East 26th

Street with a right of way of 160 feet along the south side

of the airport to Fourche Dam Bridge. After deliberation

and further negotiations the property owners agreed in

writing with said city and county, defining the new streets,

their method of construction and the extent of the rights

of way, waived their right to any compensation for the

damages suffered by their property, and contributed rights

of way and funds for the purchase of rights of way for the

extension and construction of said streets (T. 120-121).

In 1952, in violation of the above described agreements,

the respondents undertook to close East 10th Street and

Kast 26th Street, and an action was brought by petitioners

to prevent said closing, such action being G. B. Oliver, et al.

9

v. City of Little Rock, et al., No. 97549, in the First Division,

Pulaski Chancery Court (T. 311-315). On June 26, 1953,

the Chancellor, on hearing decreed that the city was with-

out power to close said streets (T. 321-323). Said decision

is determinative of the issues in the present case, was never

appealed from or set aside, and is res adjudicata of the

issues herein. The authority for respondents’ claiming

said streets is claimed by them under Ordinance No. 9290,

Appendix A hereto, infra, page 20.

The dedicated streets in question, with their specified

rights of way are necessary to the petitioners and others

similarly situated. The respondents are closing said streets

to include them and their rights of way in the Little Rock

Municipal Airport. The closing of said streets and the

taking of said rights of way by the respondents impair and

reduce the value of the property of the petitioners. Neither

of the respondents have adequate means to compensate for

the damages caused by their acts; they have made no pro-

vision for the payment of such compensation ; the rights of

the petitioners to compensation under the circumstances

are settled and res adjudicata; and, respondents are taking

and damaging property of petitioners, and others similarly

situated without due process of law.

REASONS RELIED ON FOR THE ALLOWANCE OF

THE WRIT

The Supreme Court of Arkansas has necessarily de-

cided an important question arising under the Fourteenth

Amendment to the Constitution of the United States, in-

volving the rights of citizen property owners to due process

of law for the wrongful taking and damaging of their prop-

erty rights. The decision of the Supreme Court of Arkan-

sas concedes and establishes the fact of damage but does

nothing about it. It is untenable and in conflict with the

applicable decisions of this court. The Arkansas Court has

denied and renounced its power to protect the petitioners

10

in their claims of rights, privileges and immunities secured

by the Constitution of the United States.

1. The taking of private property for public use with-

oat compensation denies petitioners’ constitutional rights.

«* * * a judgment of a state court, even if it

is authorized by statute, whereby private property is

taken for the state or under its direction for public use,

without compensation made or secured to the owner, is,

upon principle and authority wanting in the due proc-

ess of law required by the Fourteenth Amendment of

the Constitution of the United States, and the affirm-

ance of such a judgment by the highest court of the

state is a denial by that state of a right secured to the

owner by that instrument.’’ Chicago, B. € Q. R. R. Co.

v. Chicago, 166 U. S. 266, 241, 41 L. Ed. 979.

Compensation for private property taken for public

use constitutes an essential element in due process of law

and without such compensation the appropriation of pri-

vate property to public uses, no matter under what form of

procedure it is taken, violates the provisions of the Federal

Constitution.

Searl v. School District No. 2, 133 U.S. 533, 33 L. Ed.

740;

Sweet v. Rechel, 159 U.S. 380, 40 L. E «. 188;

Appleby v. Buffalo, 221 U.S. 524, 5° L. Ed. 838;

West v. Chesapeake P. Teleph. Co., 295 U. 8. 662, 671,

79 L. Ed. 1640, 1646.

The right of access to property is a property right.

The taking of such a right is the taking of property to the

damage of the owner and requires the payment or securing

of payment of compensation for such damages. United

States v. Welch, 217 U. S. 333, 54 L. Ed. 787. The taking

cannot be exercised without compensation to take away

rights which come under the protection of the Fourteenth

Amendment to the Constitution.

1l

Muhlker v. New York & H. R. Co., 197 U. S. 544, 49 L.

Ed. 872;

Wheeler v. New York, N. H. & H. R. Co., 178 U. S. 321,

44 L. Ed. 1085;

Union Electric Light & Power Co. v. Snyder Estate, 65

F. 2d 297;

Schiefelbein v. United States, 124 F. 2d 945.

In order for a property owner’s constitutional rights

to be destroyed it is not necessary that an actual physical

invasion of his real estate occur. His damage is not limited

to the physical injury to his land. Where there has been a

physical disturbance of a right which the owner enjoys in

connection with his property and which gives it additional

value, compensation is required.

Chicago v. Taylor, 125 U. 8. 161, 31 L. Ed. 638;

Portland Ry. etc. Co. v. Portland, 181 F. 632;

Omaha Horse Ry. Co. v. Cable Tramway Co., 32 F. 727,

appeal dism. 140 U. S. 692;

Nichols on Eminent Domain, 3rd Ed., Vol. 2, See.

6.441 (3).

The Airport Commission has no power of eminent

domain. The authority of the city to close streets is lim-

ited to those streets not needed for corporate purposes or

whose use is impracticable or impossible. Arkansas Stat-

utes, 1947, 19-2304 (2), Appendix A, hereto, infra, page 20.

The city’s exercise of authority here has no relation to

these powers. It closed the street to incorporate the physi-

cal body of the street into its airport. There is no evidence

in the record to the contrary. The city appropriated the

rights of way of the streets for its airport use. The mere

statement of the city council in its ordinance that a public

purpose was involved does not make it conclusive that such

Iannis

12

a purpose was in fact the reason for the act. Cincinnati v.

Vester, 281 U. 8S. 439, 74 L. Ed. 950.

Actually, the taking and damaging in this instance is

similar to that of taking the private property of one person,

without the owner’s consent, for the private use of another.

This has been consistently condemned.

Wilkerson v. Leland, 27 U.S. 2 Pet. 627, 658, 7 L. Ed.

542;

Davidson v. New Orleans, 96 U. 8S. 97, 102, 24 L. Ed.

616;

Missouri P. R. Co. v. Nebraska, 164 U. 8S. 403, 41 L. Ed.

489.

In arbitrarily ignoring the rights of petitioners under

the Fourteenth Amendment the lower court has determined

that a city may deprive property owners of their property

rights by taking a dedicated right of way for street pur-

poses and using it for its municipal airport without com-

pensation to the admittedly injured owners. The court

below has deprived petitioners of their substantive rights

upon grounds without fair or substantial support.

The action of state courts in depriving parties of sub-

stantive rights by enforcing a substantive common-law rule

formulated by such courts may result in the denial of rights

guaranteed by the Fourteenth Amendment.

Shelley v. Kraemer, 334 U.S. 1, 17, 92 L. Ed. 1161;

Bridges v. California, 314 U.S. 252, 86 L. Ed. 192.

2. The question of whether a right protected by the

Federal Constitution was denied or ignored by the state

court is one upon which this court forms an independent

judgment. It will not adopt a state decision in conflict with

its settled decisions. The existence of the right is part of

the federal question itself.

al

13

Ward v. Love County, 253 U.S. 17, 64 L. Ed. 751, 758,

states the applicable rule thus:

‘*Whether the right was denied, or not given due

recognition, by the Supreme Court, is a question as to

which the claimants were entitled to invoke our judg-

ment, and this they have done in the appropriate way.

It therefore is within our province to inquire not only

whether the right was denied in express terms, but also

whether it was denied in substance and effect, as by

putting forward non-federal grounds of decision that

were without any fair or substantial support.’’

Also:

Hoadley v. San Francisco, 124 U.S, 639, 31 L. Ed. 533;

Boyd v. Nebraska, 143 U. S. 135, 36 L. Ed. 103;

Citizens Saving Bank vy. Owensboro, 173 U. §. 636, 43

L. Ed. 840;

Merchants National Bank v. Richmond, 256 U. S. 635,

65 L. Ed. 1135.

It was necessary to the determination of this cause that

the lower court determine whether petitioners’ property

was taken or damaged in violation of the Constitution of

the United States. The decree below could not be given

without deciding this point. In its opinion the Arkansas

Supreme Court recognized that petitioners’ property was

damaged but denied petitioners’ right of recovery because:

1. The city may at some future time restore to or pro-

vide for the petitioners an access right of way equal

to that taken from them so that their property will

not be damaged; and

2. There are many property owners in the Fourche

Dam area, affected by the city’s taking, in addition

to the petitioners,

Merely stating the court’s grounds for denying the

petitioners’ rights for compensation demonstrates that

ip arta

14

their rights guaranteed by the Fourteenth Amendment

have been denied them. For these reasons the court says

the damages of petitioners are not special or peculiar.

Such refusal to protect petitioners’ rights, for the reasons

given in the opinion, is not the measure of justice provided

by the due process of law.

The lower court completely overlooked the fact that the

original complaint filed and the intervention stated a class

action for the benefit of all the property owners in the

Fourche Dam area (T. 2, 27). The fact that many are dam-

aged instead of only one does not reduce, diminish, or de-

stroy the rights guaranteed petitioners under the Consti-

tution of the United States. The court’s use of the terms

‘*special and peculiar’’ under these circumstances is an

evasion of the constitutional question.

The existence of a state constitutional right does not

prevent the assertion of the Federal question. The Four-

teenth Amendment furnishes an additional guaranty

against any encroachment by the states in violation of due

process.

United States v. Cruikshank, 92 U. S. 542, 23 L. Ed.

588 ;

In Re Kemmler, 136 U.S. 436, 34 L. Ed. 519;

Orr v. Gilman, 183 U. 8. 278, 46 L. Ed. 196.

This case is not similar to that of Marchant v. Pennsyl-

vania R. Co., 153 U. 8. 380, 38 L. Ed. 751, and others, where

the lower court found that the acts did not ‘‘under the laws

and constitution of that state, constitute a taking, an injury,

or a destruction of the plaintiff’s property’’. The damage

is not the mere inconvenience of using the limited substi-

tute route. The damage is the admitted destruction of the

value of the property for industrial use. This damage is

suffered specially and alone by the petitioners and others

15

similarly situated. Here the court conceded that there

were damages to the value of petitioners’ property but

denied petitioners their rights to compensation. No ques-

tion of fact is involved. The decision absolutely disregards

the constitutional rights of petitioners to be paid for what

is taken. Roberts v. New Y ork, 295 U. S. 264, 277, 79 L. Ed.

1429, 1435.

3. The question at issue is a substantial one. As a

class suit for all of the property owners in the Fourche

Dam area it involves several hundred pieces of property

and in excess of a million dollars in damages. This evi-

dence is uncontradicted in the record (T. 154). Moreover,

there is in question here the basic right of a citizen to the

protection of the law in the face of a taking of his prop-

erty that sacrifices constitutional principles in order to

acquire land without expense and to incorporate it into a

municipal airport. The very land which is taken to deprive

petitioners of their right of access is appropriated for the

city’s airport. In lieu thereof is substituted a permissive

use, not a dedicated right of way equal to that taken, but

a use by sufferance of a lesser right of way, a longer and

more inconvenient route. The substitution materially dam-

ages the petitioners.

In the present growth of government by commissions

and administrative boards the rights of citizens are consist-

ently eroded because appointed administrative boards are

not responsive to the electorate. Also, such boards and

commissions have limited objectives in one certain field of

public interest rather than the broad and over-all welfare

of the citizens. For these reasons the citizens and property

Owners must rely more and more upon the courts for the

protection of their rights and privileges. If the courts

arbitrarily disregard such rights the citizen is left with no

protection. Certainly, when the state court finds that prop-

erty owners are damaged, and then refrains from giving

16

them relief because (1) the city may at some indefinite

future time provide adequate access rights of way, and (2)

because there are many property owners involved, their

due process of law is denied. A municipal corporation

cannot under the guise of performing a governmental func-

tion, take or damage private property for public purposes

without just and adequate compensation being first paid.

The substantial damage to the property owners of the

Fourche Dam neighborhood occasioned by any vacation or

closing of their only means of access has been consistently

recognized by the state courts heretofore. Beginning in

1934 with the order and judgment of the Pulaski County

Court denying the city’s right to close off these owners from

the city, county and state generally, and continuing through

the many written agreements between the city and the prop-

erty owners, evidencing the right to compensation for in-

juries which would be suffered by the owners by leaving

them in a cul de sac without access, and the decree of the

Pulaski Chancery Court in 1953, it has been uniformly and

continuously recognized that substantial damages would be

received by reason of the city’s cutting off these properties

from the rest of the community. The question of the ex-

istence of damages is res adjudicata. The consideration

given by the property owners, in the form of relinquish-

ment of claims for damage and the furnishing of rights of

way without cost, has been uniformly recognized. The

unique position of the properties of petitioners requires

access through the area which the city is blocking by its

airport expansion. The Fourche Dam area is bounded on

the north and east by the Arkansas River and on the imme-

diate south by the Arkansas River levee along Fourche

Creek (T. 140-141, Map, Exhibit 16, T. 307). These natural

barriers force the owners in the area to proceed west in

order to prevent their isolation. It is to the west that the

city, markets, schools, churches, and the county and state

17

highway system lie. The usurpation of the only available

access of these property owners by incorporating all of the

streets running west between the Arkansas River and the

Arkansas River levee along Fourche Creek into an airport

causes those owners grievous and severe damage.

4. No provision is made for the compensation of the

petitioners because of the damage to their property. The

payment of compensation for private property taken for

public use is an essential element of due process of law.

The question of actual payment prior to the time of taking

is not at issue. What is at issue is the right to receive

compensation. Here, the city and the airport commission

have not only failed to tender compensation or to provide

any method of recovering compensation, but they have also

put themselves into the financial position where they can-

not pay compensation.

The obligation to pay just compensation for private

property taken for public use is a condition upon which the

power of eminent domain may be exercised. Cincinnati y.

Louisville d N. R. R. Co., 223 U.S. 390, 56 L. Ed. 481. Pay-

ment of the compensation due for such taking must be in-

sured and the full faith and credit of the political division

involved must be pledged to the payment. Where a prop-

erty owner permits a political subdivision to damage his

property he is limited to such relief as it may provide. If

the property owner does not protect his right through the

injunctive process he has only an unliquidated demand to

be satisfied at the pleasure of the political subdivision.

The petitioning property owners, here, are not willing to

surrender their damages for an useless judgment against

the city or the airport commission. The right to compen-

sation, where the property owner asserts his damage and

right to compensation before the taking is not limited to

possible award made therefor at the pleasure of the state.

The property owner is entitled to the security of payment

18

of his compensation within a reasonable time and in a rea-

sonable manner.

Sweet v. Rechel, 159 U. S. 380, 40 L. Ed. 188;

Liberty Cent. Trust Co. v. Greenbrier College for

Women, 50 F. 2d 424, aff’d. 283 U. S. 800, 75 L.

Ed, 1422.

It is uncontradicted in the evidence and explicitly

found and determined by the state Supreme Court that the

act of the city in taking the 160 feet of right of way along

26th Street depreciates the value of the property of peti-

tioners and others in the Fourche Dam area. The present

value of the area for industry is most substantial. The

court’s opinion admits the loss of value for industrial uses.

According to the undisputed testimony the damage occa-

sioned by the city’s acts causes the property owners loss

in excess of a million dollars.

Olson y. United States, 292 U. S. 246, 255, 78 L. Ed.

1236, 1244, discusses the ‘‘equivalent’’ value which must be

paid as compensation for the damaging of private property

for public use. The opinion states:

‘* Just compensation includes all elements of value

- that inhere in the property, but it does not exceed mar-

_ ket value fairly determined. The sum required to be

paid the owner does not depend upon the uses to which

he has devoted his land but is to be arrived at upon

just consideration of all the uses for which it is suit-

able. The highest and most profitable use for whieh

the property is adaptable and needed or likely to be

needed in the reasonably near future is to be consid-

ered, not necessarily as to the measure of value, but to

the full extent that the prospect of demand for such

use affects the market value while the property is pri-

vately held. Mississippi € R. River Boom Co. v. Pat-

terson, 98 U. S. 403, 408, 25 L. Ed. 206, 208; Clark’s

Ferry Bridge Co. v. Public Service Comm., 291 U. 8S.

19

227, Ante, 767, 54 S. Ct. 427; 2 Lewis, Em. Dom., 3rd

Ed., See. 707, p. 1233 ; 1 Nichols, Em. Dom., 2d Ed.,

Sec. 220, p. 671.”

The petitioners’ right to compensation as a right guar-

anteed under the due process provisions of the Fourteenth

Amendment is that of receiving the equivalent of the mar-

ket value of the property at the time of the taking contem-

poraneously paid in money.

Olson v. United States, 292 U.S. 246, 78 L. Ed. 1236;

Seaboard Air Line R. Co. y. United States, 261 U. 8.

299, 306, 67 L. Ed. 664, 669 ;

Jacobs v. United States, 290 U.S. 13, 17, 78 L. Ed. 142;

United States v. Klamath and Modoc Tribes, 304 U.S.

119, 82 L. Ed. 1219.

One of the most certain tests of the character and

value of government is the fullness and sufficieney of the

security which surrounds the individual in the use and

enjoyment of his property. In the instant case the court

below has said to the petitioners that their compensation

may eventually be given them by the city in returning to

them an equivalent access right of way and that there are

too many property owners damaged to allow compensa-

tion. Such answers do not provide the due process guar-

anteed to petitioners.

CONCLUSION

Your petitioners respectfully submit that the writ of

certiorari should issue to the end that this Court may re-

view the decision of the Supreme Court of Arkansas and

determine whether that court has deprived petitioners of

rights guaranteed by the Fourteenth Amendment to the

Constitution of the United States.

BernaL Seamster

Little Rock, Arkansas

Counsel for Petitioners

a

20

APPENDIX A

Constitution of Arkansas, 1874, Article 2, Sec. 22:

‘*Property rights—Taking without just compensa-

tion prohibited.—The right of property is before and

higher than any constitutional sanction; and private

property shall not be taken, appropriated or damaged

for pablic use, without just compensation therefor.’’

Arkansas Statutes, Annotated 1947, See. 19-2304:

‘*Additional powers of cities of first class—In

order to better provide for the public welfare, safety,

comfort and convenience of the inhabitants of cities of

the first class, the following enlarged and additional

powers are hereby conferred upon said cities of the

first class, viz.;: ®* ° °

‘Second. To alter or change the width or extent

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 corporate 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

aa TS

:

:

4

%

:

;

3

A]

iO PAE, ct SOc

Lh SLR SG at BES le Hj

hI ce Sora

CITY OF LITTLE ROCK, ARKANSAS

ORDINANCE NO. 9290

AN ORDINANCE VACATING AND TRANSFERRING

TO OTHER PUBLIC PURPOSES THAT PORTION OF

EAST TENTH STREET FROM THE EAST LINE OF

RIVER STREET EASTWARD BETWEEN BLOCK 57

ON THE NORTH AND BLOCK 59 ON THE SOUTH,

BOTH IN INDUSTRIAL PARK ADDITION, ANNEX

NO. 1 TO THE CITY OF LITTLE ROCK, ARKANSAS,

:

$

é

3

&

§

21

AND VACATING AND TRANSFERRING TO OTHER

PUBLIC PURPOSES THAT PORTION OF THE EAST

TENTH STREET CONNECTION TO THE FOURCHE

DAM PIKE FROM THE EASTERN LINE OF INDUS.

TRIAL PARK ADDITION, ANNEX NO. 1 TO THE

CITY OF LITTLE ROCK, ARKANSAS, TO THE N/S

PORTION OF SAID CONNECTION TO FOURCHE

DAM PIKE MORE PARTICULARLY DESCRIBED AS

FOLLOWS: THAT PORTION OF THE EXTENSION

OF EAST TENTH STREET EASTWARD FROM THE

EAST LINE OF INDUSTRIAL PARK ADDITION AN-

NEX NO. 1, TO THE CITY OF LITTLE ROCK, ARKAN-

SAS, EASTWARD ON A BEARING OF SOUTH 89° 57’

EAST A DISTANCE OF 393 FEET TO THE POINT

OF BEGINNING OF A 10 CURVE TO THE RIGHT

AND CONTINUING ALONG THE CURVE A DIS.

TANCE OF 703 FEET MEASURED ALONG THE

CENTER LINE OF SAID EAST TENTH STREET EX-

TENSION TO A POINT WHERE THE EXISTING

RIGHT-OF-WAY INTERSECTS THE WEST LINE OF

A RIGHT OF WAY AS DEDICATED BY THE TEXAS.

EASTERN TRANSMISSION CORPORATION AND AS

RECORDED IN THE OFFICE OF THE RECORDER

OF PULASKI COUNTY, ARKANSAS, IN DEED BOOK

NO. 510, PAGE 257, ON MARCH 27, 1953, THE RIGHT-

OF-WAY OF SAID STREET BEING 60 FEET WIDE,

30 FEET THEREOF LYING ON KACH SIDE OF SAID

CENTER LINE AS DESCRIBED: AND VACATING

AND TRANSFERRING TO OTHER PUBLIC PUR-

POSES THAT PORTION OF EAST ROOSEVELT

ROAD FROM THE WEST RIGHT-OF-WAY LINE OF

THE MISSOURI PACIFIC RAILROAD COMPANY

EASTWARD TO A POINT WHERE A NEW ROAD,

AS CONSTRUCTED BY THE BUREAU OF AIR NA-

TIONAL GUARD ON OR ABOUT JUNE 15, 1953, CON-

NECTS WITH SAID EAST ROOSEVELT ROAD,

ae in olimeidkatie i i aN ENE

ea J

22

MORE PARTICULARLY DESCRIBED AS FOLLOWS:

THAT PORTION OF EAST ROOSEVELT ROAD, HAV-

ING A RIGHT-OF-WAY 160 FEET WIDE, 53 FEET

THEREOF LYING NORTH OF THE CENTER LINE

OF PAVEMENT AND 107 FEET THEREOF LYING

SOUTH OF SAID CENTER LINE, FROM A POINT IN

THE CENTER OF EXISTING PAVEMENT, WHICH

POINT IS 407 FEET SOUTH AND 1,716.86 FEET EAST

OF THE NORTHWEST CORNER OF THE NEY OF

SECTION 13, TOWNSHIP 1 NORTH, RANGE 12 WEST,

PULASKI COUNTY, ARKANSAS, AND WHICH POINT

IS THE WEST RIGHT-OF-WAY LINE OF THE MIS-

SOURI PACIFIC RAILROAD COMPANY AND RUN-

NING EASTWARD A DISTANCE OF 1,875 FEET —

SAVE AND EXCEPT THE EXISTING RIGHT-OF-

WAY OF A PUBLIC ROAD KNOWN AS THE FRAZ-

IER PIKE WHERE THE SAME INTERSECTS SAID

DESCRIBED PORTION OF EAST ROOSEVELT

ROAD: TRANSFERRING SAID VACATED POR-

TIONS OF SAID STREETS TO OTHER PUBLIC

(MUNICIPAL AIRPORT) PURPOSES: AND FOR

OTHER PURPOSES.

Wuersas, The Bureau of Air National Guard and the

Little Rock Municipal Airport Commission have heretofore

constructed an extension of the NE/SW runway at the Lit-

tle Rock Municipal Airport of sufficient length to accom-

modate jet and other large types of aircrafts and for the

installation of an instrument landing system in connection

therewith; and

Wuenrseas, portions of East Tenth Street and East

Tenth Street extension in the City of Little Rock, Arkan-

sas, interest the safety approach zone of said runway on

the Southwest; and

23

Wuersgas, the use of said runway by jet and other large

aircraft constitute a great hazard to the lives and property

of persons using said portions of said streets and the use

of said streets by motor vehicles and other traffic further

constitutes a great hazard to the safety of air-borne traffic

using said runway for landings and take-offs, thereby mak-

ing the continued use of said streets impossible and im-

practicable; and

Wuenreas, said use of said streets prevents the instal-

lation of an instrument landing system by the Civil Aero-

nautics Administration of said airport, which system is

essential to the proper development and use of said air-

port; and

Wuenzas, other suitable, safe, adequate and convenient

paved streets have heretofore been constructed with air

signal safety lights for use by the public in traveling to

and from the areas now served by said portions of East

Tenth Street, East Tenth Street extension and East Roose-

velt Road, and said portions of said East Tenth Street,

East Tenth Street extension and East Roosevelt Road,

having become dangerous and impracticable for public use

as city streets, are no longer required for corporate pur-

poses and

Wueneas, in order to better provide for the public wel-

fare, safety, comfort and convenience of the users of said

streets, of the inhabitants of the City of Little Rock, Arkan-

sas, and of the airport traffic using said Little Rock Mu-

nicipal Airport, it is necessary, to alter, vacate, abandon

and close the following portions of said East Tenth Street,

Kast Tenth Street extension and East Roosevelt Road in

the City of Little Rock, Pulaski County, Arkansas, to-wit :

That portion of East Tenth Street from the East line

of River Street eastward between Block 57 on the North

24

and Block 59 on the South, both in Industrial Park Addi-

tion, Annex No. 1, to the City of Little Rock, Arkansas,

That portion of the East Tenth Street connection to the

Fourche Dam Pike from the Eastern line of Industrial

Park Addition, Annex No. 1, to the City of Little Rock,

Arkansas, to the N/S portion of said connection to Fourche

Dam Pike, more particularly described as follows: that

portion of the extension of East Tenth Street eastward

from the East line of Industrial Park Addition, Annex No.

1 to the City of Little Rock, Arkansas, eastward on a bear-

ing of South 89° 57’ East a distance of 893 feet to the point

of beginning of a 10° curve to the right and continuing

along the curve a distance of 703 feet measured along the

center line of said East Tenth Street extension to a point

where the existing right-of-way intersects the West line of

a right-of-way as dedicated by the Texas-EKastern Trans-

mission Corporation and as recorded in the office of the

Recorder of Pulaski County, Arkansas, in Deed Book No.

510, page 257, on March 27, 1953, the right-of-way of said

street being 60 feet wide, 30 feet thereof lying on the east

side of the said center line as described; and that portion

of East Roosevelt Road from the West right-of-way line of

the Missouri Pacific Railroad Company eastward to a point

where a road as constructed by the Bureau of Air National

Guard on or about June 15, 1953, connects with said East

Roosevelt Road more particularly described as follows:

that portion of East Roosevelt Road, having a right-of-way

160 feet wide, 53 feet thereof lying North of the center line

of pavement and 107 feet thereof lying South of said center

line, from a point in the center of existing pavement, which

point is 407 feet South and 1,716.86 feet East of the North-

west corner of the NE of Section 13, Township 1 North,

Range 12 West, Pulaski County, Arkansas, and which point

is the West right-of-way line of the Missouri Pacific Rail-

road Company, and running eastward a distance of 1,875

feet — save and except the existing right-of-way of a pub-

25

lic road known as the Frazier Pike where the same inter-

sects said described portion of East Roosevelt Road.

NOW THEREFORE, BE ° . ORDAINED BY THE CITY COUNCIL OF

THE CITY OF LITTLE ROCK, ARKANSAS:

Section 1. That it is hereby ascertained and declared

that the use, as public streets, of those portions of East

Tenth Street, East Tenth Street extension and East Roose-

velt Road, hereinbefore and hereinafter described, is detri-

mental to the safety and welfare of the members of the

public using the same and of the persons and property

using the Little Rock Municipal Airport; that other paved

streets and new routes have been specifically constructed

to reasonably, safely and adequately serve the needs of the

members of the public traveling to and from the areas now

served by said portions of East Tenth Street, East Tenth

Street extension and East Roosevelt Road; that said por-

tions of East Tenth Street, East Tenth Street extension

and East Roosevelt Road are no longer required for cor-

porate purposes as public streets and should be vacated as

such, and the said vacated portions of said streets should

be transferred to other publie use under the jurisdiction of

the Little Rock Municipal Airport Commission.

Section 2. That the City of Little Rock, Arkansas,

hereby vacates and assigns for other public purposes the

following described streets and relinquishes all its rights

and the rights of its inhabitants and of the publie generally

therein to the use thereof as streets to-wit:

That portion of the East Tenth Street from the East

line of River Street eastward between Block 57 on the

North and Block 59 on the South both in Industria] Park

Addition, Annex No. 1 to the City of Little Rock, Arkansas;

that portion of the Kast Tenth Street connection to the

Fourche Dam Pike from the Eastern line of Industrial Park

Addition Annex No. 1 to the City of Little Rock, Arkansas,

26

to the N/S portion of said connection to Fourche Dam Pike,

more particularly described as follows:

That portion of the extension of East Tenth Street

eastward from the East line of Industrial Park Addition,

Annex No. 1, to the City of Little Rock, Arkansas, eastward

on a bearing of South 89° 57’ East a distance of 893 feet

to the point of beginning of a 10° curve to the right and

continuing along the curve a distance of 703 feet measured

along the <enter line of said Kast Tenth Street extension

to a point where the existing right-of-way intersects the

West line of a right-of-way as dedicated by the Texas-

Eastern Transmission Corporation and as recorded in the

office of the Recorder of Pulaski County, Arkansas, in

Deed Book 510, page 257, on March 27, 1953, the right-of-

way of said street being 60 feet wide, 30 feet thereof lying

on each side of said center line as described; and that por-

tion of East Roosevelt Road from the West right-of-way

line of the New Missouri Pacific Railroad Company east-

ward to a point where a new road, as constructed by the

Bureau of Air National Guard on or about June 15, 1953,

connects with said East Roosevelt Road, more particularly

described as follows: That portion of East Roosevelt Road,

having a right-of-way 160 feet wide, 53 feet thereof lying

North of the center line of pavement and 107 feet thereof

lying South of said center line, from a point in the center

of existing pavement, which point is 407 feet South and

1,716.86 feet East of the Northwest corner of the NE of

Section 13, Township 1 North, Range 12 West, Pulaski

County, Arkansas, and which point is the West right-of-

way line of the Missouri Pacific Railroad Company and

running eastward a distance of 1,875 feet — save and ex-

cept the existing right-of-way of a public road known as

the Frazier Pike where the same intersects said described

portion of East Roosevelt Road.

—-

27

Section 3. That a copy of this ordinance, duly certi-

fied by the City Clerk, shall be filed in the office of the

Recorder of Pulaski County, Arkansas, and recorded in the

Deed Records of said County.

Section 4. That all ordinances or parts of ordinance

in conflict herewith are hereby repealed.

Section 5. That the following are hereby found to be

the facts which constitute an emergency: (a) that the City

of Little Rock, Arkansas, owns all of the property adjoin-

ing the streets that are hereby vacated; (b) that the Ar-

kansas National Guard Squadron, with operating privi-

leges, is legally stationed at the Little Rock Municipal Air-

port; that it has been assigned jet aircraft as part of the

National Defense Program; and that said jet aircraft re-

quire a specially constructed, long runway with instrument

landing facilities which can only be completed after the

hereinbefore mentioned sections of East Tenth Street, East

Tenth Street extension and East Roosevelt Road are va-

cated ; (c) that the commercial airlines now operating from

the Little Rock Municipal Airport have recently inaugu-

rated the use of larger airplanes that require the use of a

very long runway and an instrument landing system for

necessary flight safety during bad weather and the fur-

nishing of essential service to the traveling public; (d) that

the construction of the NE/SW runway at the Little Rock

Municipal Airport has been completed for said purposes

with the exception of the instrument landing system and

said runway is now in use by jet and other large types of

aircraft in landing and taking off; (e) that the normal

flight zone of said aircraft is within five feet vertically of

the surfaces of those portions of East Tenth Street and

Kast Tenth Street extension and within ten feet vertically

of the surface of that portion of East Roosevelt Road de-

scribed in Section 2 hereof, in the City of Little Rock,

Arkansas, which constitute a great hazard both to the users

28

of said streets apd the users of said runway. Therefore,

in order to preserve the public peace, health and welfare,

an emergency is hereby declared to exist and this ordinance

shall be in full force and effect from and after its passage

and approval.

Passed: August 10, 1953.

Approved:

Pratt REMMEL

Mayor

Attest:

H. C. Granam

City Clerk

29

APPENDIX B

CHANCERY COURT

PULASKI COUNTY, ARKANSAS

E. H. Risser Plaintiff

v. No. 98223

Tue Crry or Lirtie Rock, Jack Easr, Sr.,

Fioyp SuHarp, J. V. SaTTeRFIELD, JR.,

P. A. Dury anp Curis FINKBEINER,

ComMIssioners oF Litrte Rock Munict-

PAL AIRPORT COMMISSION Defendants

G. B. Oxrver. Intervener

Decree

On the 15th day of November, 1954, this cause was

submitted to the Court. The plaintiff and all other prop-

erty owners similarly situated appeared by their attorney,

John R. Thompson. The intervener appeared by his attor-

ney, Cooper Jacoway. The defendants appeared by attor-

neys, O. D. Longstreth, Jr., City Attorney, Dave Witt,

Assistant City Attorney, and Mehaffy, Smith & Williams,

by John T. Williams, and Calvin R. Ledbetter, Jr. After

a consideration of all the pleadings filed in this ease, the

stipulations, the exhibits, the testimony of witnesses, and

briefs filed by the parties, the Court finds that the plain-

tiff, the intervener, and all other property owners similarly

situated are not entitled to the relief which they seek nor

to any relief whatsoever and that the Complaint of the

plaintiff and all other property owners similarly situated

and the Intervention of the intervener should be dismissed.

A written opinion filed herein on the 2nd day of December,

1954, sets forth the facts and law of this case as found and

determined by the Court.

a

30

IT IS, THEREFORE, CONSIDERED, ORDERED,

ADJUDGED AND DECREED by the Court that the Com-

plaint of the plaintiff and all other property owners simi-

larly situated and the intervention of the intervener be

and are hereby dismissed.

IT IS FURTHER ORDERED AND DECREED by

the Court that the defendants in this action be and are

hereby given full freedom by this Court to vacate, alter, or

change any portion of East Tenth Street and East Roose-

velt Road described in Ordinance 9290 of the City of Little

Rock, Arkansas.

IT IS FURTHER ORDERED AND DECREED by

the Court that the plaintiff and intervener pay ail the costs

of this action, for which execution or garnishment may issue

as upon a judgment at law.

Entered this 6 day of December, 1954.

/s/ Guy E. WiiuraMs

Guy E. Williams

Chancellor

Approved as to form:

/s/ Joun R. Toompson

John R. Thompson

Attorney for Plaintiff

Approved as to form:

Cooper Jacoway

Attorney for Intervener

31

CHANCERY COURT

PULASKI COUNTY, ARKANSAS

E. H. Risser. Plaintiff

Vv. No. 98223

Tue Crry or Litrie Rock, Jack East, Snr.,

FLoyp Suarp, J. V. SatrerFIELp, Jr.,

P. A. Duuin anv Curis FIN KBEINER,

Commissioners or Litre Rock Mvnicr-

PAL ArRPORT CoMMISSION Defendants

G. B. Oxtver ‘ ' Intervener

Opinion

On August 10, 1953, municipal Ordinance No. 9290 was

duly enacted and passed by the City Council of the City of

Little Rock, Arkansas. In brief, this ordinance recites that

the northeast-southwest runway at the Little Rock Munici-

pal Airport has been extended so that jets of the Arkansas

Air National Guard and other large aircraft can safely and

conveniently use this runway ; that certain portions of East

Tenth Street and East Roosevelt Road intersect the ap-

proach zone of the noitheast-southwest runway; that the

use of the portions of these streets which intersect the

approach zones of the runway by automotive traffic is haz-

ardous and dangerous to both air and road traffic; that the

continued use of the dangerous portions of these two streets

prevents the installation of an instrument landing system

by the Civil Aeronautics Administration and the installa-

tion of such system is essential to the safety and proper

development of the Airport; that the continued use of the

dangerous portions of these streets is impossible and im-

practicable; that the dangerous portions of these two

" streets are no longer required for corporate purposes and

that the public safety requires that they be vacated and

32

closed ; that adequate, safe, and convenient substitute routes

have been constructed to serve the area formerly served

by these vacated portions of East Tenth Street and Roose-

velt Road; and that any other ordinance or portion thereof

in conflict with this ordinance is repealed.

On August 17, 1953, Mr. E. H. Risser, the plaintiff in

this case, filed a Complaint against the City of Little Rock

and the Commissioners of the Little Rock Municipal Air-

port Commission. The plaintiff, in this case, owns prop-

erty located east of the Airport boundary and east of the

city limits of the City of Little Rock, and brought this suit

on his own behalf and in behalf of all other property owners

who are similarly situated. The plaintiff alleges in his

Complaint, which is summarized here; that Ordinance No.

9290 is void as being beyond the power of the City to enact;

that both streets are county roads and part of the state

highway system; that both streets have been continuously

used for a period of more than eight years prior to the en-

actment of the ordinance; that res judicata is applicable to

this case; and that the defendants have taken the property

of the plaintiff without just compensation therefor, Plain-

tiff asks that the defendants be enjoined from barricading

or tearing up any portion of East Tenth Street or East

Roosevelt Road.

The defendants, the City of Little Rock and the Com-

missioners of the Little Rock Municipal Airport Commis-

sion (hereinafter referred to only as ‘‘defendants’’), filed

their Demurrer and Answer on December 8, 1953. The

defendants demurred to the plaintiff’s Complaint on the

grounds that the plaintiff did not have the legal capacity

to use and was not a proper party plaintiff. This Demur-

rer was overruled by the Court. The Answer contained a

general denial and further alleged that the northeast-south-

west runway of the Little Rock Municipal Airport had been

extended to safely accommodate jets of the Arkansas Air

33

National Guard and other large aircraft; that portions of

East Tenth Street and East Roosevelt Road intersect the

safety approach zone to the northeast-southwest runway

creating a hazardous condition for both air and road traffic

and making further use of the exposed portions of both

streets impossible and impracticable; that the present use

of the streets prevents the installation of an Instrument

Landing System by the Civil Aeronautics Administration,

and the installation of this system is essential to the con-

tinued safe use of the Airport; that prior to the enactment

of Ordinance No. 9290, the City of Little Rock owned all

of the property adjoining the streets affected by the ordi-

nance; and that safe, adequate, and convenient substitute

routes have been provided to serve the same areas formerly

served by the vacated portions of East Tenth Street and

East Roosevelt Road.

On February 1, 1954, G. B. Oliver (hereinafter referred

to as the ‘‘intervener’’), a property owner also owning

property located east of the boundaries of the Little Rock

Municipal Airport, filed his Intervention in this case and

adopted the allegations of the plaintiff’s Complaint. De-

fendants filed a Demurrer and Answer to the Intervention.

The defendants demurred on the grounds that the inter-

vener did not have the legal capacity to sue and was not a

proper party to the action. This Demurrer was overruled

by the Court. The Answer to the Intervention filed by the

defendants contained a general denial and the same addi-

tional allegations as are found in the defendants’ Answer

to the plaintiff's Complaint. The intervention of G. B.

Oliver was allowed by this Court on February 1, 1954.

Upon motion of the defendants, the Court issued an

Order dated March 24, 1954, temporarily closing the portioti

of Kast Roosevelt Road allegedly vacated by Ordinance

9290 because the Court found that portion of East Roose-

velt Road to be deteriorated to such an extent that safe

PRISE OG RU MALE NE NTA PEBEA OREN MONARY EMR, A tk aR 0g arranged

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34

passage was impossible. The Order was issued pending

final determination of the case and was issued without prej-

udice to the rights of either party.

Another Intervention in the case was filed on April 1,

1954, by the Little Rock Chamber of Commerce in which it

sought to be made a party defendant in this cause due to its

interest in the Airport both in its individual capacity and

as a representative of the public generally. The Petition

for Intervention was granted by the Court on April 22,

1954, but was withdrawn on petition of the Intervener on

June 29, 1954, after the plaintiff and intervener (G. B.

Oliver) had filed notice of appeal to the Supreme Court on

the ground that it was error for this Court to overrule their

motion to dismiss the Intervention of the Little Rock Cham-

ber of Commerce.

On the 16th day of September, 1954, the intervener

(G. B. Oliver) filed an Amendment to his Intervention in

which his primary allegations are as follows: that the City

of Little Rock in seeking to vacate certain portions of East

Tenth Street and East Roosevelt Road is violating an

agreement allegedly made by the City with a group of land-

owners living east of the Little Rock Municipal Airport;

that since the defendants have extended the northeast-

southwest runway, they are responsible for the danger cre-

ated and are estopped to allege that the continual use of

the dangerous portions of East Tenth Street and East

Roosevelt Road is impracticable or hazardous; and that

East Roosevelt Road has been designated by the Pulaski

County Planning Board as a link iz a proposed defense

highway as shown on a master plan which has not been

changed and is still in effect.

The defendants filed a Demurrer and Answer to the

intervener’s Amendment on September 29, 1954. The de-

fendants demurred to the Amendment to Intervention on

35

the grounds that the intervener did not have the legal ca-

pacity to sue and was not a proper party to the action and

further, that the Amendment did not state facts sufficient

to constitute a cause of action. The Demurrer of the de-

fendants was overruled by this Court. In their Answer the

defendants, in effect, entered a general denial. The Court

allowed the Amendment to the Intervention.

Testimony was heard by the Court on September 16,

1954, and November 15, 1954, and since the parties agreed

to a rather lengthy stipulation of facts, the only real dis-

puted factual issue concerning which testimony was taken

was the question of the adequacy, suitability, and conven-

ience of the two substitute routes which were constructed

to replace the portions of East Tenth Street and East

Roosevelt Road allegedly vacated by Municipal Ordinance

9290. These substitute or by-pass routes are marked in

blue on Exhibit No. 1.

Witnesses for both parties are apparently agreed that

the by-pass routes are safe for the operation of motor

vehicles but they disagree markedly as to the adequacy,

suitability, and convenience of the two by-pass routes as

compared with the old routes which are purportedly va-

cated by Municipal Ordinance 9290, An expert witness for

the defendants testified without contradiction that, on the

north, it was necessary to travel an additional 726 feet if

the new substitute route were used rather than the old

route while, on the south, it was necessary to travel an

additional 603 feet if the new by-pass route were used

rather than the old route. This same Witness testified,

again without contradiction, that it would take approxi-

mately 30 seconds longer to travel the substitute route on

the north. Testimony by expert witnesses also established

the fact that the width of both substitute routes was greater

than the width of the old routes, Further testimony by

expert witnesses established that the subsiitute or by-pass

36

route on the north was of better construction than the old

route on the north and that the substitute route on the south

made the railroad crossing less steep and less dangerous

than it had been on the old route on the south. The old

route on the south was in such poor condition that this

Court was obliged to issue a temporary order closing the

older route on the south due to its advanced stage of de-

terioration and consequent danger.

There are two right angle turns on the substitute route

on the north which naturally make this route not as con-

venient as the older route which is straight. However, the

Court has personally viewed and traveled both routes on

the north and has traveled the substitute route on the

south as well as viewing both the old and the substitute

route on the south. It is impossible to travel the old route

on the south due to the danger caused by its deterioration.

The Court has found both substitute routes to be safe, ade-

quate, and suitable. It is true that the right angle turns on

the northern substitute route are less convenient than the

older route which was straight, but the Court is informed

that these right angle turns were a construction necessity

brought about by the levee, the extension of the northeast-

southwest runway, and the lack of sufficient right of way

for a longer radius turn. This Court is satisfied that the

construction was the best available under the circum-

stances. Certain testimony was also presented to the effect

that these substitute routes would fail to encourage the

growth of industry east of the Airport but the Court fails

to see any merit in this approach because of the highly

speculative assumption which would have to be made that

large-scale modern industry intends to locaie east of the

Airport and the Court sees no evidence of this at present.

In addition, the substitute routes are much wider than the

older routes which the plaintiff and intervener seek re-

stored and thus, the older routes if restored would be less

oi a

37

suitable for industrial purposes in this respect than the

new substitute routes,

Thus, even considering two right angle turns, which are

not at all uncommon in city streets, an added distance of

only 6 to 700 feet, and an added traveling time of only about

30 seconds, this Court fails to see how these factors can

amount to more than trifling inconvenience at the best.

Trifling inconveniences are part and parcel of the price of

municipal progress and such minor irritations are not sub-

stantial enough for the Court to say that the new substitute

routes are not adequate and reasonable. This Court is

therefore satisfied by a preponderance of the evidence that

the two substitute or by-pass routes constructed to replace

the portion of East Tenth Street allegedly vacated by Mu-

nicipal Ordinance 9290 (vacated portion shown in red on

Exhibit No. 1) and the portion of East Roosevelt Road

allegedly vacated by Municipal Ordinance 9290 (also shown

in red on Exhibit No. 1) are adequate, safe, and suitable.

This Court accordingly finds as a fact that the two substi-

tute routes are adequate, safe, and suitable and that the

plaintiff and the intervener and all other property owners

similarly situated still have reasonable and adequate access

to the general system of city streets.

The following important facts were stipulated by the

parties to this suit: the plaintiff and intervener own prop-

erty located east of the city limits of Little Rock, Arkansas;

prior to the construction of the two by-pass routes, the only

practical method of travel to the city from this area was

over the northern route (designated as East Tenth Street)

or over the southern route (designated as Kast Roosevelt

Road); Municipal Ordinance 9290 was duly enacted on

August 10, 1953; the portions of East Tenth Street and

Kast Roosevelt Road purportedly vacated by Municipal

Ordinance 9290 have been continuously used for a period

of eight years prior to the enactment of the Ordinance and

38

have been used for a period of more than three years prior

to the enactment of the Ordinance by more than ten citizens

as a means of travel to and from the Pulaski County Court-

house; the map introduced as Exhibit No. 1 shows the old

routes, the by-pass routes, the travel distance on both

routes, and the city limits as of the date of the passage of

Municipal Ordinance 9290; all lands abutting on the alleg-

edly vacated portions of East Tenth Street and East Roose-

velt Road are owned in fee simple by the City of Little

Rock; and that no portion of the allegedly vacated portions

of East Tenth Street and East Roosevelt Road has ever

been dedicated to the public for use as a street with the

exception of one segment, 158.7 feet in length, located on

East Tenth Street and shown on Exhibit No. 1 as the area

between two heavy red lines marked A and B.

From the pleadings and the testimony, the following

legal questions present themselves for solution: (1) the

applicability of res judicata to the present case; (2) the

validity of Municipal Ordinance 9290; (3) the taking or

damaging of the plaintiff’s or intervener’s property; (4)

the violation of the agreement alleged in the intervener’s

amendment; and, (5) estoppel as a bar to any action taken

by the defendants.

This Court will proceed first to a discussion of res

judicata. On September 22, 1952, the City of Little Rock

passed City Ordinance 9004 which attempted te vacate and

abandon the portions of East Tenth Street and East Roose-

velt Road involved in the present suit as well as certain

portions of other streets. The Ordinance was passed by

the City Council pursuant to the provisions of Ark. Stats.

(1947) 19-3825, which is as follows:

**19-3825. Authority to vacate—Conditions.—In

all cases where the owner of property within a city or

town shall have dedicated, or may hereafter dedicate,

a portion of such property to the public use as streets

39

or alleys by platting such property and causing such

plat to be filed for record, as provided by law, and any

street or alley, or section thereof, shown on the plat so

filed shall not have been actually used by the public as

a street or alley for a period of five (5) years, the City

or Town Council shall have power to vacate and aban-

don the street or alley, or any portion thereof, by pro-

ceeding in the manner hereinafter set forth. (Acts

1945, No. 17, See. 2, p. 30; 1947, No. 88, See. 1, p. 194.)”’

A petition to vacate was filed as provided in 19-3826

and Ordinance 9004 contained recitals to the effect that the

portions of the streets sought to be vacated had not actu-

ally been used by the public for a period of five years prior

to the filing of the petition to vacate. Suit was filed chal-

lenging the action taken by the City. The case was styled

G. B. Oliver v. The City of Little Rock, E. H. Risser, Inter-

vener, and bore the clerk’s filing number 97549. On or

about June 26, 1953, the Chancellor issued his deeree en-

joining the City from vacating said portions of East Tenth

Street and East Roosevelt Road. The decree applied only

to East Tenth Street and East Roosevelt Road and meant

only that the City had no power under 19-3825 to vacate

the streets in question because the factual situation at that

time did not meet the reyuirements of 19-3825 inasmuch as

those portions sought to be vacated had been continuously

used for the last five years.

The present Ordinance was enacted pursuant to 19-2304

rather than 19-3825 and Section 4 of Ordinance 9290 ex-

pressly provides that all Ordinances or parts of Ordinances

in conflict herewith are hereby repealed. The City is ex-

erting its power to vacate under an entirely different grant

of legislative authority than was provided by 19-3825. The

factual situation required before the case can be brought

within the purview of 19-2304 is also entirely different from

the factual situation required by 19-3825. Two different

statutes are involved in the two eases and the factual situa-

~~

40

tion necessary for the operation of 19-3825 is not the factual

situation necessary for the operation of 19-2304. Res Judi-

cata is therefore not applicable.

The second legal question to be discussed is the valid-

ity of Municipal Ordinance 9290. The validity of this ordi-

nance is under attack on three fronts as set out by the

pleadings and briefs: (1) that the streets cannot be closed

under the provisions of Ark. Stats. (1947) 19-2304 but only

by an exercise of the power of eminent domain; (2) that

part of East Tenth Street has been platted and dedicated

to the City of Little Rock for use as a street, and conse-

quently, that portion can only be altered or vacated pur-

suant to Ark. Stats. (1947) 19-3825; and (3) that both East

Tenth Street and East Roosevelt Road are under the juris-

diction of the county rather than the city and that East

Roosevelt Road, in particular, was designated in its un-

altered form by the Pulaski County Planning Board in 1941

as a link in a proposed defense highway.

Municipal Ordinance 9290 was enacted pursuant to the

provisions of Ark. Stats. (1947) 19-2304; the pertinent por-

tions of which are as follows:

‘“*Ark. Stats. (1947) — 19-2304 — In order to bet-

ter provide for the public welfare, safety, comfort and

convenience of the inhabitants of cities of the first

class, the following enlarged and additional powers are

hereby conferred upon said cities of the first class, viz. :

‘*Second. To alter or change the width or extent

of streets, sidewalks, alleys, avenues, parks, wharves

and other public grounds, and to vacate or lease out

such portion thereof as may not for the time being be

required for corporate purposes, and where lands have

been or may be acquired or donated to such city for

any object or purposes which has become impossible

or impracticable, the same may be used or devoted for

other proper public or corporate purposes, or sold by

41

order of the city council and the proceeds applied

therefor.’’

In several Arkansas decisions, the power of the City to

vacate, alter, or close streets has been unequivocally upheld.

Greer v. City of Texarkana, 201 Ark. 1041, 147 S. W. 2d

1004; Barbee v. Carpenter, case No. 9-394, 98 Law Reporter

119. This Court has found no case which indicates either

that the Legislature had no power to grant such authority

nor that this statute means anything less than it says.

It is true that there are certain Arkansas cases (Packet

Co. v. Sorrels, 50 Ark. 466 ; Osceola v. Haynie, 147 Ark. 290)

which, at first glance, seem to say that when land has once

been dedicated by its owner to the public for use as a street,

(in the present case, with the exception of one small seg-

ment of East Tenth Street, none of the vacated land has

ever been dedicated to the public for use as a street) this

lana cannot be diverted to purposes foreign to its dedica-

tion except under the power of eminent domain. However,

the reason for the rule announced in the above cases is to

protect the property interests of the abutting landowners

on both sides of a dedicated street. They are deemed to

possess the fee to the dedicated street subject to the public

easement. Therefore, since they own the property in the

street, it would be unfair for the City to divert this street

to uses which are not consistent with the dedication. In

most cases, this would depreciate the value of their prop-

erty to such an extent that a taking would occur and hence

the eminent domain requirement of the Packet case. In our

present case, abutting property owners need not be pro-

tected by the ‘‘eminent domain”? procedure because the

only abutting property owner on both sides of both vacated

portions of the two streets is the City of Little Rock. In

fact, the fee to the portions of the two vacated streets is in

the City of Little Rock as the only abutting property owner.

42

Taylor v. Armstrong, 24 Ark. 102; Hoxie v. Gibson, 150 Ark.

432; Lincoln v. McGehee Hotel Co., Inc., 181 Ark. 1117.

In addition, if the City is not allowed to alter, vacate,

or abandon a dedicated street, then all the applicable Ar-

kansas statutes (Ark. Stats. (1947) 19-2304, 19-2313, and

19-3801) are nullities and a municipality, for all practical

purposes, lacks the power to control and supervise its

streets despite the express intent of the Legislature to the

contrary. As is stated in 16 Am. Jur. 373:

‘‘Thus it has been held that a city cannot accept a

dedication of a street subject to conditions that it shall

not extend, widen, or in part, close it, s‘nce that would

be an attempted relinquishment of the power to regu-

late and control its streets.’’

The second line of attack on the validity of Municipal

Ordinance 9290 concerns the small portion of East Tenth

Street which is the only segment of the vacated portions of

both streets that has been platted and dedicated to the City

of Little Rock for use as a street. It is alleged that this

dedicated portion of East Tenth Street can only be altered

or vacated pursuant to the provisions of Ark. Stats. (1947)

19-3825 (the five-year non-user statute set out earlier in

the opinion). In this regard, the case of Cernauskas v.

Fletcher, 211 Ark. 678, 201 S. W. 2d 999, is highly informa-

tive.

The Cernauskas case involved an alley in the City of

Little Rock which had been closed by the passage of a mu-

nicipal ordinance. The municipal ordinance had been en-

acted pursuant to the provisions of Ark. Stats. (1947)

19-2304 and suit was filed alleging that 19-3825 was the

statute under which the alley should have been closed. The

decision in the case held that 19-3825 had no application

unless the property involved had been platted and dedi-

cated to the public use as a street or alley. If the property

43

involved has not been dedicated to the public use as a street,

19-2304 is the applicable statute. The alley in question had

not been either platted or dedicated, and consequently,

19-3825 had no application to the ease.

Even though a segment of East Tenth Street, 158.7

feet in length, has been both dedicated and platted, in the

opinion of this Court, the Cernauskas case does not say

that 19-3825 is the exclusive statutory procedure which

must be followed in such a case. The Cernauskas case

clearly states that 19-3825 and 19-2304 are not in conflict

and that the enactment of 19-3825 does not repeal 19-2304.

As is stated in the Cernauskas case, on page 680:

“*The repealing clause reads: ‘All laws and parts

of laws, and particularly Act 311 of the Acts of 1941,

are hereby repealed.’ Section 8. No doubt the legis-

lature meant to repeal all laws in conflict with that

act, and, by error of the author or the typist, left out

the usual words, ‘in conflict herewith,’ which we will

imply by necessary construction. When so construed

this act does not repeal Sec. 9944 of Pope’s Digest,

subsection Third, which provides: ‘To alter or change

the width or extent of streets, sidewalks, alleys, ave-

nues, parks, wharves and other publie grounds, and to

vacate or leave out such portions thereof as may not

for the time being be required for corporate purposes

> 39

Both statutes are therefore operating harmoniously to-

gether. The Court feels that the legislative intent in the

enactment of 19-3825 was to provide a method whereby ad-

joining property owners could petition (as provided in

19-3826) the City Council on their own behalf to have dedi-

cated and platted streets vacated or abandoned. On the

other hand, 19-2304 is a method provided by the Legislature

whereby the City Council on its own initiative can vacate

or abandon both dedicated and platted and undedicated

and unplatted streets. In support of this reasoning, the

44

following paragraph found in 64 C.J.S., Municipal Corpo-

rations, Sec. 1670, p. 42, may be cited:

‘‘The procedure to vacate a street or other public

way must be in strict compliance with the statutory

provisions relating thereto. While a statute which pro-

vides a complete system for vacating streets will be

construed as repealing a prior act, provisions of dif-

ferent statutes which are not inconsistent may be read

together to provide a harmonious scheme. However, a

statute giving a method of vacating a street in cases

in which the municipal corporation is not in active

operation, but which is also applicable to cases wherein

the municipal corporation is in active operation, is

cumulative to a statutory method applicable only in

eases where the municipal corporation is in active

operation, and alternative methods may be provided

under separate statutes.’’ (Emphasis supplied.)

The case cited in C. J. S. to support the last phrase (the

last nine words) is the case of Cernauskas v. Fletcher.

Any other construction of these two statutes other than

that previously discussed would divest the municipalities

of the power to supervise and control their own streets and,

as has been pointed out previously, such a construction

runs contrary to the legislative intent that municipalities

should supervise and control their own streets. This Court,

therefore, is of the opinion that both dedicated and undedi-

cated property may be altered, vacated, or abandoned

under the provisions of 19-2304.

The third line of attack on the validity of Municipal

Ordinance 9290 involves allegations that both East Tenth

Street and East Roosevelt Road are county roads or public

roads and thus removed from municipal jurisdiction. In

addition to the enactment of Ark. Stats. (1947) 19-2304, the

Legislature has clearly shown its intent to transfer com-

plete control over all streets located within the city limits

45

to the various municipalities by the enactment of Ark.

Stats. (1947) 19-2313 and Ark. Stats. (1947) 19-3801. It is

also well settled in Arkansas that when a county road or

public road is brought within the city limits, the authority

and control of the county cease and the city assumes com-

plete jurisdiction of the road. Hughes v. Arkansas and

Oklahoma Railroad Company, 74 Ark. 194; Pulaski Gas &

Light Co. v. Remmell, 97 Ark. 318. As is stated in the case

of Fitzgerald v. Saxton, 58 Ark. 494, 502:

‘*It is the law, now settled and recognized every-

where, that, as a city is extended so as to take in terri-

tory, the jurisdiction and control of the county over the

highways in such territory is determined, and the city

immediately becomes possessed of the same. Thus,

when the land in controversy became a part of the City

of Little Rock, the public road then leading over and

through the same fell under the jurisdiction and con-

trol of the City, and the City became at once respon-

sible for the condition of this road as a public high-

way.’’

It is also alleged that East Roosevelt Road has been con-

stituted a link in a proposed, but as yet unbuilt, defense

highway for Little Rock as shown on a highway plan drawn

up by the Pulaski County Planning Board in 1941. On this

plan, East Roosevelt Road is shown as originally con-

structed without the presence of the by-pass route. As

shown by Ark. Stats. (1947) 17-1101 through 17-1106, the

purpose of the County Planning Board (which has juris-

diction of unincorporated county territory only) is to ree-

ommend and coordinate and no sanction ean be found in

the statutes for any jurisdiction over or interference with

the complete control which a city exercises over streets

Within its municipal limits. At any rate, it is self-evident

that the defense effort is better served by changing the

route of a street which interferes with the safe operation

of jet aircraft than by rigid adherence to a plan, proposed

46

fourteen years ago, for a defense highway which is as yet

unbuilt.

After a discussion of these attacks on Municipal Ordi-

nance 9290, this Court holds that Municipal Ordinance 9290

is valid.

The third legal issue raised in this case is the question

of whether the plaintiff’s, the intervener’s, or any other

similarly situated property owner’s property has been

taken or damaged within the meaning of the Arkansas con-

stitutional provision. Arkansas Constitution of 1876, See.

22. The Arkansas cases on this subject strongly sustain

the rule that a non-abutting property owner has not been

damaged by the vacating or altering of a street so long as

he is still provided with reasonable access to the general

system of streets. Hot Springs R. R. Co. v. Williamson,

45 Ark. 429; Little Rock and Hot Springs Western Rail-

road Company v. Newman, 73 Ark. 1; Wellbourn v. Davies,

40 Ark. 83; Stoutemeyer v. Sharp, 89 Ark. 175; Greer v.

City of Texarkana, 201 Ark. 104i. Since the plaintiff and

the intervener and all other property owners similarly sit-

uated are non-abutting property owners and since this

Court has already found that the plaintiff and the inter-

vener and all other property owners similarly situated are

still provided with reasonable access to the general system

of streets, this Court holds as a matter of law that the

plaintiff, the intervener, and all other property owners sim-

ilarly situated have not suffered any damages.

Although this Court has already found that the substi-

tute routes are adequate, safe, and suitable and that they

provide reasonable access to the general system of city

streets, it still might be well to point out that in all of the

following cases the inconvenience suffered is greater than

that suffered by any travelers of the substitute routes in

this case, and yet, in all these cases below, the inconven-

47

ience suffered was not great enough to reach the stage of

“‘actual damage’’, reasonable access to the general system

of streets was still provided, and all recovery was denied.

R. Zasa v. Public Service Commission, 102 Pa. Super. Ct.

317, 156 A. 714 (substitute route was a half-mile longer) ;

Bryan v. Petty, 162 lowa 62, 143 N. W. 719, 145 Pac. 835

(necessary to travel two miles farther to get to town);

Davis Colliery Co. y. Harding, 83 W. Va. 609, 98 S. E. 815

(substituted road had a much steeper grade).

The fourth legal question raised in the case concerns

the alleged violation by the City of certain agreements pur-

portedly made between the Mayer of Little Rock and cer-

tain landowners living in the Fourche Dam Area. The first

agreement (Exhibit No. 12) is a document dated February

16, 1935, and signed by the Mayor of the City of Little Rock,

the Pulaski County Judge, and four property owners living

east of the Airport. In essence, this agreement recites that

with the closing of that portion of Fourche Dam Pike which

crosses the Airport, the City will build a road extending

Fourche Dam Pike south f rom its former location to a junce-

tion with Frazier Pike. The agreement contains no lan-

guage stating that the property owners have agreed to

waive their damages so long as the City continues to abide

by the agreement nor does it contain language to the effect

that the City has agreed to maintain and keep open this

road indefinitely. The construction of the road was car-

ried out as provided for in the agreement.

The agreement referred to above (Exhibit No. 12) is

the only written agreement found in the ease and the road

referred to in the written agreement was maintained in its

original location for a period of six years. With the advent

of World War II, it was again necessary to expand the

limits of the Municipal Airport and the intervener alleges

an oral modification of the original agreement (Exhibit

No. 12). According to the intervener, the original agree-

oe

5 res

48

ment remained intact except that in return for the closing

down of the road, the construction of which was provided

for in the original egreement, the City would extend and

maintain East Tenth Street to the city limits at the north-

east corner of the Airport and would extend and maintain

East Roosevelt Road from its intersection with Highway

65 east along the south side of the Airport to Fourche Dam

Bridge. It should, of course, be remembered that since the

oral agreement as alleged by the intervener only modified

and did not destroy the original agreement found in Exhibit

No. 12, the terms of the original agreement with the excep-

tion of the modification are still in effect and they contain

no reference to a waiver of damages as consideration on

the part of the property owners nor to an agreement to

4 keep any streets open indefinitely.

¥

The only written evidence bearing on such a point is

contained in two county court orders, Exhibit 4 and Exhibit

5. Both of these county court orders would seem to contra-

dict the terms and interpretation of the agreement as stated

by the intervener. These orders are dated in 1940 and 1941,

and, in essence, they state that the Fourche Dam Pike lo-

cated south of the Airport limits will be closed down due

to the needs of the national defense program. The orders

then recite that it has been represented to the court that

the City of Little Rock will widen and repair East Eleventh

Street from the right-of-way of the Missouri Pacific Rail-

road Company, east to Harrington Street, thence north to

Tenth Street and thence east to the city limits and that the

City will also extend East Roosevelt Road east from Con-

federate Boulevard to the city limits. Pulaski County will

then construct East Roosevelt Road from the then city

limits to the bridge over Fourche Creek on the Fourche

Dam Pike.

WH TS ROSE

49

It will thus be seen that neither order mentions any

modification of an agreement, and neither order mentions

any length of time during which said streets must be kept

open. The Court orders provide only that East Tenth

Street and East Roosevelt Road must be extended to the

city limits as they existed in 1940 and 1941. The City car-

ried out the terms of the Pulaski County Court orders and

extended East Tenth Street and East Roosevelt Road to the

city limits existing in 1940 and 1941. East Tenth Street

was paved and maintained to the present location of Cor-

nish Street which was the city limits in 1940 and 1941 and

which is some 3,800 feet west of the portion of East Tenth

Street vacated by City Ordinance 9290. East Roosevelt

Road was likewise extended to the city limits which were

then located some distance west of the Missouri Pacific

Railroad right-of-way, and consequently, some distance

west of the portion of East Roosevelt Road vacated by City

Ordinance 9290.

Therefore, even assuming that the agreement con-

cluded in 1935 is valid and that an oral modification of this

agreement was concluded in 1940, the City has abided by

the terms of the agreement and the modification. Neither

agreement contains any language which states that the

property owners have agreed to waive their damages so

long as the City continues to abide by the agreement. Nei-

ther agreement contains language which would obligate the

City to keep any street or road open for an indefinite

period of time. The City has complied with the terms of

the 1940 modification and the streets which were to be

extended under the county court orders have been extended

and are still in operation at the present time. In fact, both

East Tenth Street and East Roosevelt Road are still in

operation throughout their entire length except that a cer-

tain portion of each has been vacated and, in each case, a

by-pass route has been constructed to skirt the vacated por-

tion and then rejoin the original street. The location of

30

both streets has merely been altered; neither street has

been closed; and the parts of both streets which have been

vacated are located at a considerable distance from the city

boundaries as they existed in 1940 and 1941 and could thus

have no bearing on whether or not the City has complied

with county court orders issued in 1940 and 1941.

This alleged violation of the agreement between the

City and the landowners should also be approached from

another point of view. Assuming, for the purposes of argu-

ment only, that the City did attempt to enter into an agree-

ment which would bind the City to keep East Tenth Street

as presently located and East Roosevelt Road as presently

located open indefinitely throughout their present length

without alteration or change. According to virtually un-

challenged principles of law, the City would have no power

to enter into such an agreement or contract as contended

for by the intervener. As is stated in 38 Am. Jur., Munici-

pal Corporations, Sec. 498, p. 174:

‘A municipality cannot bind itself by a perpetual

contract, or by one which lasts an unreasonable length

of time. Thus, a municipal corporation cannot obligate

itself to keep a particular street open forever.”’

If the City attempted to enter into a contract which obli-

gated it to keep a certain street open indefinitely in its

present location, it would be a virtual surrender on the part

of the City of the supervisory powers over streets which

have been delegated to it by the Legislature and such an

act of surrender would be outside the scope of corporate

authority and thus uitra vires and void.

Since the City possesses no power to conclude the

agreement in question, one of its agents (the Mayor) could

certainly possess no more power than the City itself. In

addition, it is not shown that the Mayor had any authority

from the City Council to make the contract in question.

51

See Halbut et al. v. Forrest City, 34 Ark. 246; Venable vy.

Town of Plummerville, 130 Ark. 477. A further ground of

invalidity is that the contract or agreement in question was

entered into without observing the requisite statutory pro-

cedure required by Ark. Stats. (1947) 19-2403. Gladson v.

Wilson, 196 Ark. 996.

Thus, in the opinion of this Court, no agreement was

violated, and at any rate, such an agreement as here alleged

could not have been entered into by any municipality be-

cause it is far beyond the scope of corporate authority and

an attempt to so enter would have been ultra vires and void.

The fifth legal issue presented in the case was the ques-

tion of estoppel and its effect on the defendants. The in-

tervener alleges that since the defendants have extended

the runway on the Airport, they have created the danger

and hazard upon East Tenth Street and East Roosevelt

Road and are therefore estopped from maintaining that the

continued use of said streets is impracticable or dangerous.

The extension of the runway was necessary to accommodate

jet aircraft of the Arkansas National Guard and large com-

mercial planes. The runway was extended in the interests

of the public safety and necessity as well as the national

defense effort. It was a valid exercise of the governmental

functions of a municipality and express authority for such

an action can be found in Amendment 13 to the Arkansas

Constitution. See Ragsdale v. Hargraves, Mayor, 198 Ark.

614.

Only in exceptional cases is the doctrine of estoppel

invoked for use against a municipal corporation and espe-

cially is this true when governmental functions are in-

volved, for as is stated in 31 CJS, Estoppel, See. 141,

p. 413;

52

“In respect of its governmental functions a mu-

nicipal or quasi-municipal corporation ordinarily may

not be estopped.”’

In the present case, therefore, the extension of the runway

was necessary for the defense effort and the public safety,

it was a valid exercise of governmental power, and there are

no circumstances involved which clearly demand that the

doctrine of estoppel be applied to prevent manifest injus-

tice. Defendants cannot, therefore, be estopped from alleg-

ing that the continued use of a certain portion of East

Tenth Street and East Roosevelt Road is impracticable

and dangerous.

Under the facts of this case, therefore, this Court is

compelled to deny all relief sought by the plaintiff and the

intervener, and accordingly to permit the defendants to

begin the vacation and alteration of those portions of East

Tenth Street and East Roosevelt Road described in Munic-

ipal Ordinance 9290. A decree in accordance with this opin-

ion will be entered.

/s/ Guy EB, WitiiaMs

Chancellor

Dee. 2, 1954.

53

AFFIRMANCE

CHANCERY DISTRICT

StaTe or ARKANSAS

In THE SuPREME Court

Be it remembered, That at a term of the Supreme

Court of the State of Arkansas, begun and held at the

Court House, in the City of Little Rock, on the 23rd day,

being the fourth Monday of May, A. D. 1955, amongst

others, were the following proceedings, to-wit: On the 4th

day of July, A. D. 1955, a day of said term:

E. H. Risser, et al Appellants

v. No. 724

City of Little Rock, et al Appellees

Appeal from Pulaski Chancery Court, Second Division

This cause came on to be heard upon the transcript of

the record of the Chancery Court of Pulaski County, Sec-

ond Division, and was argued by solicitors, on considera-

tion whereof it is the opinion of the Court that there is no

error in the proceedings and decree of said Chancery Court

in this cause.

It is therefore ordered and decreed by the Court that

the decree of said Chancery Court in this cause be and the

same is hereby in all things affirmed with costs.

It is further ordered and decreed that said appellees

recover of said appellants all their costs in this Court in

this cause expended, and have execution thereof.

The Chief Justice and Justice Millwee not participat-

ing. Justice McFaddin dissents.

54

In testimony, That the above is a true copy of the

decree of said Supreme Court, rendered in the case therein

stated, I, C. R. Stevenson, Clerk of said Supreme Court,

hereunto set my hand and affix the Seal of said Supreme

Court, at my office in the City of Little Rock, this 21ist day

of October, A. D. 1955.

C. R. Stevenson, Clerk

/s/ Philip N. Gowen, D. C.

55

SUPREME COURT OF ARKANSAS

No. 724

Opinion Delivered

E. H. Risser, er au. Appellants

v.

Crry or Lirtte Rock, et a. Appellees

Appeal from the Pulaski County Chancery Court,

Second Division.

Affirmed. The Chief Justice and Mr. Justice Millwee not

participating. Mr. Justice MeFaddin dissents.

Sam Rosrnson, Associate Justice

This is an effort by some of the residents of the

Fourche Dam community, which is east of Little Rock in

Pulaski County, to prevent the City of Little Rock from

relocating a small portion of East 10th Street and East

26th Street in that city.

East 10th Street is on the north side of the Little Rock

Municipal Airport and East 26th Street is on the south side.

To facilitate the operation of modern aircraft, it is neces-

sary for the city to install additional equipment at the ends

of the northeast-southwest runway at the airport. In order

to do this, the city seeks to abandon a small portion of East

10th Street and establish a new route one block north on

9th Street. This will require traffic to make two sharp

turns in traveling from 10th to 9th Street. By actual tim-

ing, it takes 35 seconds longer to travel the new route than

it does the old one. On the south side of the airport, the

city has relocated East 26th Street for a distance of a little

over half a mile. This was done by building a crescent

shaped loop which makes the new route approximately 60C

56

feet longer than the old route. The old route is in such a

condition that it cannot be traveled, hence the comparative

time it takes to travel the two routes is not shown, but it

requires a total of one minute and 15 seconds to drive the

entire new route at a usual rate of speed.

Appellants filed suit to enjoin the city from abandon-

ing the old routes in favor of the new ones. The chancellor

denied the injunction and the residents of the Fourche Dam

community have appealed. Appellants contend that ‘‘the

City did not comply with the statutory requirement of se-

euring approval from the Pulaski County Planning Com-

mission; the City had no control or jurisdiction to close

the roads in question; the City has failed to provide com-

parable roads that are equally safe and convenient; the

fact that the plaintiff’s property does not abut on the por-

tion of the road closed does not prevent the plaintiffs from

suffering damages for which they are entitled to reimburse-

ment; the court should have sustained the plaintiffs’ plea

of res adjudicata’’. Appellants also contend that the city

is precluded from closing the roads by a contract made with

the residents of the area. There are three points that merit

discussion: first, is the city bound by a contract; second,

is the cause res judicata; and third, have appellants suf-

fered special and peculiar damages.

As to the question of whether the city is bound by an

agreement heretofore made with the residents of the

Fourche Dam area, appellants introduced evidence to the

effect that, in 1934, the city undertook to close East 17th

Street and the county road known as Fourche Dam Pike;

that the residents of the Fourche Dam community objected,

resuiting in an agreement between the city officials, the

county judge and the residents of that area, that the resi-

dents would not oppose the closing of East 17th Street, or

seek damages for the closing of that street, if the city and

county would construct a paved road on the north side of

57

the airport; and that, in 1940, the agreement was modified

whereby the city was to improve East 10th Street, and

improve and maintain East 26th Street with a right of way

of 160 feet. Appellants contend that this was a valid and

binding contract between the Fourche dam residents and

the city, and that the city is not now at liberty to change

the location of East 10th and East 26th Streets, which are

the roads furnishing access to the Fourche Dam commu-

nity.

Any attempt on the part of the city to enter into a con-

tract relating to the permanent establishment or abandon-

ment of its public streets would be ultra vires. In estab-

lishing, maintaining or abandoning its streets, the city acts

in a governmental capacity and no city administration has

the authority to bind a future administration in such mat-

ters. Cities have the authority to control, supervise and

regulate all streets within their corporate limits. Ark.

Stats., §§ 19-2313, 19-2304. ‘‘A municipality cannot bind

itself by a perpetual contract, or by one which lasts an

unreasonable length of time. Thus, a municipal corpora-

tion cannot obligate itself to keep a particular street open

forever.’’ 38 Am. Jur. 174. It is also said in 25 Am. Jur.

993: ‘It is established that the governmental power to

control and regulate the use of highways in the public

interest cannot be surrendered, or impaired by contract.

Particularly as to municipalities, control over streets is

given to them for the benefit of the public. It is in the

nature of a trust held by the corporation, from which arises

a continuing duty on the part of such corporations to exer-

cise legislative control over their streets at all times and

Places when demanded by the public good. They bave no

power, by contract, ordinance, or by law, to cede away,

limit, or impair their legislative or governmental powers,

or to disable themselves from performing their public

duties in this regard, at least without the explicit consent

of the legislature, or io delegate the exercise of such pow-

58

ers and the performance of such duties to others, so as to

relieve themselves of responsibility in this respect.’’ In

37 Am. Jur. 735, 736, it is said: ‘‘It is declared to be

against public policy to permit a municipal corporation to

part with any of its legislative power. In the absence of

a clear grant of power from the legislature, the municipal

authorities can do nothing which amounts in effect to the

alienation of a substantial right of the public. It cannot

obligate itself not to exercise such powers, and a contract

in which it purports to do so, even upon valuable consid-

eration, is void. Thus, a municipal corporation cannot, by

contract or otherwise, divest itself of its general police

power, or of the power of eminent domain which has been

delegated to it by the legislature, or the power of taxation.’’

The law is clear that a city cannot contract away perpetu-

ally its rights, obligations and duties in connection with the

public streets.

Next we reach the question of res judicata. Ordinance

9004 was adopted by the Little Rock City Council on Sep-

tember 22, 1952. Under the provisions of the ordinance,

the portions of East 10th and East 26th Streets involved

herein were abandoned. The ordinance set out that the

city council had ascertained that portions of such streets

‘*have not been actually used by the public generally for a

period of at least five years subsequent to the filing of the

plat’’. It is perfectly obvious that the ordinance was

adopted on authority of Ark. Stats., § 19-3825, which pro-

vides: ‘‘In all cases where the owner of property within

a city or town shall have dedicated, or may hereafter dedi-

cate, a portion of such property to the public use as streets

or alleys by platting such property and causing such plat

to be filed for record, as provided by law, and any street

or alley, or section thereof, shown on the plat so filed shall

not have been actually used by the public as a street or

alley for a period of five years, the City or Town Council

59

shall have power to vacate and abandon the street or alley,

or any portion thereof, by proceeding in the manner here-

inafter set forth.’’ After the adoption of Ordinance 9004,

appellants in the case at bar filed a suit to enjoin the city

from enforcing the ordinance by closing a portion of East

10th and East 26th Streets. The complaint alleged, inter

alia, that ‘‘The defendants are now attempting to close,

block, obstruct and barricade a portion of said 10th Street

and have already begun to tear up the roadway and to

interfere with travel along said road.’ An intervention

was filed alleging that ‘‘The defendants are purporting to

act under the authority of Ordinance No. 9004 of the City.

Said ordinance is void and a nullity. Said ordinance was

not enacted in the manner required by law and contains a

recitation and finding that the road or street in question

has not been used for a period of at least five years subse-

quent to the filing of the plat. In truth and in fact, said

road has been constantly and continuously used by the pub-

lie, including the plaintiff and all others similarly situ-

ated, and said use has continued without abatement or in-

terruption at the time it was opened until and through the

present time. Because of the invalidity of the ordinance,

the portion of East 10th Street that purports to be affected

by the ordinance has not been vacated and the defendants

have no right or authority to attempt to block, barricade,

close and obstruct any portion of East 10th Street and the

efforts of the defendants to close, barricade, block and ob-

struct East 10th Street are without authority of law and

are of great damage to this plaintiff and to all others simi-

larly situated.’’ Both a demurrer and an answer filed by

the city asserted the validity of Ordinance 9004 as a com-

plete defense, and did not attempt to justify the closing of

the streets on any other ground. In fact, there was no other

ordinance authorizing the closing of the streets. On a final

hearing, there was a decree enjoining the defendants from

closing portions of the streets involved. (The pleadings

60

must have been considered amended to apply also to East

26th Street.)

If Ordinance 9004 was void because it was based on the

false premise that the streets in question had not been used

for five years, then the city was without authority to close

the streets and the injunction was granted properly by the

trial court. It appears conclusive that the streets had been

regularly used within the five-year period, and therefore,

that Ordinance 9004 was not passed in accordance with Ark.

Stats. § 19-3825 authorizing the closing of streets where

they have not been used for five years. There was no ap-

peal from the Chancellor’s decree enjoining the city from

closing a portion of the streets. The date of the decree was

June 26, 1953.

A short time later, on August 10, 1953, the City Coun-

cil, acting on authority of Ark. Stats. § 19-2304 which gives

the city the power to vacate portions of public streets,

adopted Ordinance 9290. It provides for the closing of the

same portions of East 10th and East 26th Streets as did the

void Ordinance 9004. Seven days after the adoption of

Ordinance 9290, the case at bar was filed attacking its valid-

ity. A copy of the ordinance is made a part of the com-

plaint. (It will be recalled that this ordinance had not been

passed by the City Council at the time of the trial involving

the validity of Ordinance 9004.) The prayer of the com-

plaint in the present case asks that Ordinance 9290 be de-

clared null and void. An intervention filed by one of the

appellants is to the same effect, and asks that the city be

enjoined from closing the streets. There was no effort to

enforce the order made in the first suit enjoining the city

from closing the streets. The only issue in the first suit

was the validity of Ordinance 9004. The city asserted no

authority for closing the streets except the authority be-

stowed by that ordinance. True, the plaintiffs attacking

the validity of the ordinance alleged damages, but such

61

allegations were necessary to give them a standing in court.

Without an allegation of damages, the complaint and inter-

vention would have been demurrable. If the cause is res

judicata, as appellants claim, then the filing of the present

suit was wholly unnecessary. The injunction in the first

suit would have been sufficient to prevent the closing of the

streets.

The principle of res judicata is so well known that it

need not be restated here. One of the necessary elements

of the doctrine is that the issues must be the same. In the

first case, the only real issue was the validity of Ordinance

9004. The right of the city to close a portion of the streets,

had this ordinance been found valid, was never considered.

The city’s right to close a portion of the streets under the

authority of Ordinance 9290 was not involved. This ordi-

nance Was not in effect when the first case was tried. At

the time of the first suit, the city could close portions of the

streets only under the authority of Ordinance 9004, and the

only issue raised in those pleadings was the validity of that

ordinance. Hence, the issue in the first case is not the same

as the issue in the case at bar, and the cause is therefore

not res judicata.

Next we come to the question of whether the appellants

suffered special and peculiar damages. None of the plain-

tiffs own property abutting the portions of the streets being

closed, but even if it is conceded that appellants have been

damaged by the relocation of the roads, they have suffered

no peculiar or special damages which could give rise to a

cause of action. Travelers on 10th Street, as relocated,

must turn two corners and travel a little farther, which

requires less than a minute in additional time. This slight

inconvenience, however, is not peculiar to appellants alone.

This street is an outlet from the city to one of the most

thickly populated sections of the county. Every person

62

that travels the street suffers the same inconvenience as

the appellants.

The principal contention of the appellants in regard to

East 26th Street is that their property is especially suit-

able for industrial development and that the change in the

street materially lessens the value of the property from

that standpoint. They say that 26th Street, betore being

relocated, had a 160-foot right of way. (The paved section

was formerly 18 feet wide, while the new pavement is 22

feet wide.) Appellants contend that the 160-foot right of

way would be more attractive to industries than the new

40-foct right of way. The city owns all of the property on

both sides of the old right of way as well as that on both

sides of the new right of way. No doubt the city is anxious

to assist in the industrial development of the county and

it is not unreasonable to believe that the city would coop-

erate to the fullest extent in providing the necessary facili-

ties for industries. But, be that as it may, the fact re-

mains that appellants have access to the city and that they

have suffered no peculiar and special damages. Appellants

own a few hundred acres of land, but the streets in question

lead to an area consisting of thousands of acres of level,

alluvial soil that is the same as that owned by appellants.

On the question of damages, the case of Little Rock

and Hot Springs Western Railroad Company v. Newman,

73 Ark. 1, 83 S. W. 653, is in point. There the Court said:

‘*The rule of law governing cases of this kind is

that no private action on account of an act obstructing

a public and common right will lie for damages of the

same kind as those sustained by the general public,

even though the inconvenience and injury to the plain-

tiff be greater in degree than to other members of the

public; but an action will lie for peculiar or special

damage of a kind different from that suffered by the

general public, even though such damage be small, or

63

though it be not confined to plaintiff, but be suffered

by many others.”’

The Court further said:

“If a railroad is constructed across the highway

leading from the home of one who lives in the country

to the town or city to which his business requires that

he must often g0, it is very natural that he should feel

that the danger of delay or accident to which he may

thus be at times subjected renders his property less

desirable as a home, while as a matter of fact its mar-

ket value may be actually increased by the construction

of the railroad. If he suffers an injury in such a case,

it is general, and not special. If one owning a home

in the country could recover damages in such a case,

the man who owns a home in the city and has often to

visit the country might on the same principle claim

damages to his home in the city, and so there would be

no end to such claims, for the injury is common to the

whole public, whether in the town or county.”’

In Wellbourn vy. Davies, 40 Ark. 83, the Court said:

‘The inconvenience to the complainant in Visiting

his patients, however often he may be called to do so,

is not different from that which every citizen suffers,

whose business or pleasure may call him to travel the

road. It is of the same character, only perhaps differ-

ent in degree, from that which others suffer, who have

other business, and live further away. This will not

sustain his right of action. . . . The new roads

were not as convenient to complainants as the old, and

gradually the enclosures of his neighbors came to annoy

and embarrassed him very seriously. Doubtless they

did diminish the market value of his property. Never-

theless, these were the accidents to him, of a change in

the population, business and necessities of the commu-

nity at large. He made several applications to the

County Court to reopen the old roads, and they were

all refused. Evidently the public necessity did not re-

quire them.”’

64

In Stoutemeyer v. Sharp, 89 Ark. 175, 116 S. W. 189,

the Court said:

‘‘In the present case the obstruction did not abut

Sharp’s premises. It was north of his place, and was

between the tracts of land of Stoutemeyer and Parker.

Sharp says the obstruction greatly inconvenienced him

in taking his stock to Spring River for water and pre-

venting egress and ingress to that part of the country.

This was an injury differing only in degree, and not in

kind, from that suffered by Parker, Hutchinson and

the rest of the community. Assuming the road ob-

structed to be a public highway, we do not think that

Sharp has brought himself within the rule above an-

nounced.,’’

Also, in Tuggle v. Tribble, 117 Ark. 296, 6 S. W. 2d 312,

the Court said:

‘*In this connection it may be said that there can

be no change of an existing highway that does not

cause some private inconvenience, and, in that sense,

injury to the abutting property owners, who have

adapted themselves to the existing order of things and

have purchased property on a highway which they be-

lieved would never be changed. There is no question

presented in the record that appellants have been en-

tirely cu: off from any public highway by the proposed

change in the public road in question.’’

In Greer v. City of Texarkana, 201 Ark. 1041, 147 S. W.

2d 1004, it is said:

‘*Appellant insists that the effect of the changing

of highway No. 71 is to destroy the value of his prop-

erty, which constitutes the taking of his property with-

out compensation. But the case of Tuggle v. Tribble,

177 Ark. 296, 6 S. W. 2d 312, defines the attitude of

this Court on such questions. In that case the county

court changed the location of a county road near the

city of Hot Springs. Tuggle owned land on the old

highway, and he appealed from the order of the county

correct and is therefore affirmed.

65

court making the change, and he appealed to this court

from the judgment of the circuit court affirming the

judgment of the county court. It was held on the ap-

peal that the county court had the right to change the

road, although the change subjected Tuggle to some

inconvenience, and depreciated the value of his prop-

erty. . . . Appellant has not been deprived of his

means of ingress and egress, as Dudley Avenue, on

which his property is located, remains unaffected by

the proposed change. Unaffected also is Jackson

Street, running into Dudley Avenue at appellant’s cor-

ner. Appellant’s damage, as found by the court below,

results from the diversion of the traffic; but this was

not a recoverable element of damage.”’

Our conclusion is that the decree of the Chancellor is