Opinion No.

The Honorable Charles Fuqua State Representative 3907 Lankford Street Springdale, Arkansas 72762-6552

Dear Representative Fuqua:

This is in response to your request for an opinion on the following question:

When a county court exercises the power of eminent domain for a public road, is that decision subject to review on appeal de novo by the Circuit Court?

It is my opinion that the answer to your question is "yes."

Article 7, section 33 of the Arkansas Constitution provides as follows:

Appeals from all judgments of county courts or courts of common pleas, when established, may be taken to the circuit court under such restrictions and regulations as may be prescribed by law.

The legislature has elaborated on this requirement as follows:

The circuit court shall proceed to try all appeals from county courts de novo as other cases at law.

A.C.A. § 16-67-207.

In at least one case of the Arkansas Supreme Court, these requirements have been held applicable to eminent domain proceedings. In PulaskiCounty v. Horton, 224 Ark. 864, 276 S.W.2d 706 (1955), which involved an appeal of a county court eminent domain order, the Supreme Court stated:

We have repeatedly held that under Art. 7, § 33, of the Constitution and Ark. Stats., § 27-2006 [A.C.A. § 16-67-207], the circuit court tries appeals from the county court de novo as if the cause had been originally brought in the circuit court in the first instance. [Citations omitted.]

224 Ark. 864, 870.

It is therefore my opinion, as a general matter, that to the extent a county court enters an order exercising the power of eminent domain, that order is subject to de novo review on appeal in the circuit court.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:ECW/cyh