Clark County v. Mitchell , 223 Ark. 404 ( 1954 )

Robinson, J.

The issue kere is the amount of damages suffered by landowners by reason of tbe loss of a strip of ground taken by eminent domain proceedings for a highway right-of-way, and because of the lowering of the grade of the highway about 5 feet in front of appellees’ place of business. A jury was waived and the circuit court, sitting as a jury, awarded damages in the sum of $20,000. Clark County has appealed contending the judgment is excessive.

Appellees own approximately 6% acres of land in Clark County adjoining the west side of Highway 67, which at this point runs north and south. Located on the land is a store building and dwelling house under one roof, also several tourist cabins. The appellant took from appellees a strip of land 10 feet in width extending across the 6% acres.

There is substantial evidence to the effect that appellees have spent between $30,000 and $40,000 on the improvements, and now the property is practically worthless for commercial purposes and has no considerable value for any other purpose. The right-of-way now is within 1% feet of the front door of the store; when the screen door is opened, it comes out over the right-of-way.

The 10-foot strip was taken for the purpose of increasing the width of the right-of-way of Highway 67 to 200 feet. The Highway Department has constructed within the boundaries of the 200-foot right-of-way a new concrete strip 24 feet wide just east of the old strip. Appellees ’ land and improvements are at or near the apex of a rise in the highway; in order to build the new concrete strip in accordance with modern practices, this rise was cut down to the extent that the new concrete strip is now approximately 5 feet lower than the old strip and appellees ’ improvements, and when the old strip is rebuilt it will also be lowered to the level of the new strip. However there is no showing as to just Avhen the west portion of Highway 67 will be rebuilt.

Appellant contends that in assessing damages the trial court took into consideration the anticipated change in grade of that portion of Highway 67 adjoining appellees ’ property, and allowed damages therefor. Undoubtedly there is very substantial evidence to the effect that appellees have been damaged to the extent of the amount awarded by the court, but appellant contends that if appellees have been damaged in any amount other than the value of the land actually taken, it is by rerouting the highway rather than changing the grade. It is contended that although a new concrete strip has been laid on the 200-foot right-of-way and the grade therefor has been lowered 5 feet in front of appellees’ place of business, appellees are not entitled to damages by reason of the change in grade because that portion of the highway which actually adjoins the property still owned by appellees has not been lowered at this time.

Highway 67 has not been rerouted; it still passes directly in front of appellees’ place of business, and the right-of-way which now includes the 10-foot strip of ground taken from them comes within 1% feet ■ of the front door of their place of business. It is true that only a portion of the right-of-way had been lowered as of the date of the trial, but it is equally true that there is substantial evidence to the effect that the west portion of the highway will be rebuilt, and when this is done it will be lowered to the level of the new strip.

If appellees have not been damaged because only the eastern portion of the right-of-way has been reduced in grade at this time, just how far west could the Highway Department go in lowering the grade before it would get to the point where appellees would be damaged?

It is true that the route of Highway 67 could be changed without giving rise to a cause of action in favor of a landowner on the present highway. But here Highway 67 has not been rerouted; in fact, instead of being rerouted it has been extended in width at its present location, taking a 10-foot strip of the landowner’s property in order to widen it. The evidence is convincing that all of Highway 67 will be lowered in front of appellees’ place of bufiness; 10 feet of their land has been taken to facilitate the construction of the new highway, obviously at a lower grade. Also there is substantial evidence to the effect that the change of grade in the highway will practically destroy the value of appellees’ property for commercial purposes, for which it is now being used.

Our Constitution, Article 2, § 22, provides: “Private property shall not be taken, appropriated, or damaged for public use without just compensation. ” In Dickerson v. Okolona, 98 Ark. 206, 135 S. W. 863, 36 L. R. A., N. S. 1194, Chief Justice McCulloch in referring to the above section of the Constitution said: “We are of the opinion that the authorities thoroughly establish the doctrine that under a constitutional provision guarantying compensation to the owner of private property damaged for public use, a municipality is liable for damage done by raising or lowering the grade of a street; otherwise the language of the Constitution would be meaningless.” See also Fayetteville v. Stone, 104 Ark. 136, 148 S. W. 524.

In Hempstead County v. Huddleston, 182 Ark. 276, 31 S. W. 2d 300, this court said the measure of damages is the value of the land taken plus the damage to the land not taken, less any accruing benefits. In the case at bar appellees are entitled to compensation for the land taken, plus the damage to the land not taken. In arriving at the amount of the damages it is proper to take into consideration the difference in the market value of the property before and after the taking. St. Louis, Arkansas & Texas Railroad v. Anderson, 39 Ark. 167; City of Harrison v. Moss, 213 Ark. 721, 212 S. W. 2d 334.

There is substantial evidence to sustain the damages awarded by the court; and in our opinion the court was correct in finding that in addition to the value of the land taken, damage was caused by changing the grade and not by rerouting the highway.

Affirmed.