# Petition for Writ of Certiorari — Risser v. City of Little Rock > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_0350%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1956 - **Citation:** 350 U.S. 965 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_0350%3A1. Public record. Not legal advice.