*1
v. Kesner.
Comm.
State
5-3427
Opinion 1965. Delivered Woolsey Langston appellant. Mark E. and Don for Edgar appellee. E. Bothell and William M. Stocks, Mr. and Chief Justice. W. Mrs. C. Harris, Carleton Kesner, herein, own Lot 37 in the Eastern Hills City of Fort Addition to the Smith. This lot lies at the corner the intersection of northwest Grand Avenue and Terrace. Grand Avenue west, Sixtieth runs east and side of lot. borders the south Sixtieth Terrace runs south, north borders east side of the lot. The on house corner lot Kesners’ faces east toward connected that street sidewalk. *2 garage and located the On south side the house is' driveway, Avenue. enters Grand appellant Highway Commission,
The State Arkansas Highway constructing No. 540. This Interstate herein, highway through Hills the Eastern and south runs north parallel Terrace, with Sixtieth Addition, somewhat highway. In the new east of it. The home faces Kesner constructing highway, has not taken this the commission part any the Kesner taken eminent domain lot; it has lot, Terrace from the Kesner the lots across Sixieth part shape right triangle, Terrace, in the of a Sixtieth hypotenuse triangle been taken. The is the has also right of this line starts on the east side of the line; fifty lot, about feet north the Kesner and runs street, southwesterly until
across it reaches the south- point being east of the Kesner lot, corner the location of the intersection of Grand Avenue and Sixtieth Terrace. Roughly along right way line, the commission has guard rail constructed a Sixtieth rail across This Terrace.. a barricade which closes off Sixtieth from Terrace Avenue. Grand its side of the rail, On Com- grade has lowered the mission of Sixtieth highway an has constructed access road from the new! onto Avenue. I
The Kesners instituted suit the Sebastian Chan- asking enjoined eery that the Court, commission be taking damaging paying without it. complaint alleges loss to- property, from the because of the barricade,- and the tak- part ing Terrace. It further asserted light impaired, view, the free course of and air will ahd. property'will of their that the market value The be diminished. complaint subsequently allege amended to fur- damage, of the violation ther because of certain restrictive covenants. ’
Appellant denying prop- answered, that the Kesners damaged, erty asserting- had been taken or and further non-compensable. had occurred, that even it was if *3 stipulation The cause was heard' the court under a only question liability; to be decided was question damages (if of amount of the court found li- ability) hearing was After reserved.. evidence, damage by court found that had sustained vir- tue of the fact that a had been damage lost; had also been sustained reason of restrictive to property. covenants, that the Kesners were entitled
just compensation for the diminution in value of their injunction granted against
An was the com- suspended, posted body mission, because that had finding $10,000bond. liability From the property, appellant done the brings appeal. Kesner Appellees require asked the court $15,000 cash deposit lieu of the $10,000bond, but the court refused prayer, cross-appealed from the provision suspending injunction, of the decree and the deposit court’s $15,000 refusal to order the cash in lieu of $10,000 bond. opinion, In its the court mentioned that were not entitled to recover for noise, dust, etc., and approve Campbell finding. and affirm this Ark. State Hwy. Commission, 183Ark. 780, S.W. 2d 753. *4 dispose finding damage
We first of the court’s suf fered because of restrictive covenants contained a Bill provided, of Assurance filed in which inter 1955, alia, that except no lot in Eastern Hills should be used for residen purposes; nothing might tial that should be done which annoyance neighborhood, become an or nuisance to the and other restrictions which we do not set out because we find damage appellees are not that these elements for which compensated. can be This same issue was raised in the Highway case Arkansas State McNeill, Commission v. Ark. 381 adversely 244, 238 S.W. 2d and 425, determined appellee’s litigation presently to contention. The before by opinion was decided the Chancellor before us our ’ appellees point McNeill, and rendered brief on this con plea holding' of a to reconsider our sists that case. We feeling entirely to do that that so, decline decision is sound. 274 compensation
It not entitled to follows that are findings alleged damage, for this and the Chancellor’s compensable damage re- is therefore is element versed. in questions the loss is whether the main
One of compen gress egress Terrace constitutes to Sixtieth prin general might damage. stated, It be first sable damage ciple, recover for a landowner can before taking, he no actual there has been his where damage peculiar to substantial must suffer direct public, by other members of the not suffered himself, though may actually more in true., even he this is public general. Arkansas State convenienced that the supra. enough It McNeill, Commission v. from his that a landowner show that different public. general that a He must suffered show property right that the and the fact invaded, has been not, itself, lot within suffi value his has diminished is special compensatory damages. Wen cient to establish Baker, v. 2d 464, deroth S.W. 578. Certain might damag appear arise, other conditions ing complaining which, law, to a under the landowner, compensable. circuity travel, are not held that We being compelled go i.e., a few blocks out of the compensable. City Little Rock, Risser 225 Ark. Here, 2d 281 S.W. 949. can enter onto Fifty-ninth Avenue, Terrace, travel turn to the right, and travel back and to their property.’- says
Áppellant have not lost the property, because of to and their this is the entrance fact, Avenue. this access to Grand consistently used build- that ing Kesners since garage is on the south of the home. The side driveway enters onto There house, Grand Avenue. *5 driveway a Ter- been, never onto not, and has is Accordingly, vigorously argued it is the race. right and the of has not Commission slightest. However, think in the the been distributed making argument, a overlooks basic commission, right right abutting of an the ac- owner, highway cess to a or one of the of the is incidents ownership occupancy abutting of land thereon. Vol- Page ume Am. 25, 448, Section it said: Jur., is # “* * appurtenant right land, Such is to the public when the well exists fee title the is in the as private ownership. property right as when it is in It is a deprived just the which owner be com cannot without pensation. This basement width of extends to the full the street.”1 stating
The commission as is far correct as driving onto Grand Avenue from Sixtieth Terrace is con- appellees any compensable cerned, have suffered dam- age by the state’s erection of the is barricade, because this public. traveling common to the may why another
But be reason the loss ac- there particular cess to appellees. Terrace will 'Sixtieth effect garage Prom the time of construction their driveway, Avenue, have backed out into Grand proceeded in either direction. a median has However, placed now in the center Avenue, been if and, Grand go necessary east on Kesners desire it is Avenue, entirely be backed the car across break in desiring median to the other side If street. to travel back west, must their car into the street to the right, or with back the vehicle toward the east. It always necessary, true that last mentioned changed, contend that the situation has now contemplated because of flow traffic, and the erec- tion of barricade. testimony prior reflects to the construction commission, there was no obstruction to one’s vi- person accordingly a approaching sion, could observe
n trafficfrom east as eye far as the see; could however, subordinate, further states that 1This section how public convenience, ever, control of the streets are the public having to the authorities judges, subject to such reasonable street, public inconsistent use with its maintenance as a necessary highway, public good for the and convenience and seriously impair public authority may it. The impose does not therefore regulations governing right.” the exercise reasonable of such *6 276 grade, lowering change of access
with the of and appears backing in out road onto Avenue, Grand it ap- appellees only garage, of their will be able observe to highway) proaching (off the from the east for traffic hew approximately situation, course, 100to 150feet. a Such require dangerous, likely will be and will some sort of change appellees’ entering method of onto Grand Avenue. they specially argue
Appellees have beén dam- longer present they aged, extend their drive- can no since (because guard rail to Terrace Sixtieth change grade). It true that this would have been plan to logical in order avoid the traffic to have followed may it be.that will course, Avenue. Of on Grand ‘ ’’ ‘ onto around, turn and drive forward build a able to be appears plaintiffs’ Actually, it ex- Avenue. immediately presently back can No. 16 that hibit proceed leaving garage, then when east, though onto can- Grand, last in a forward direction definitely ascertained. not may, we think the evidence Be that it reflects direct and have suffered substantial peculiar by i.e., not themselves; suffered other members equal significance, public, what is of not suf- and, person any whose other abuts Sixtieth fered 32, 33, 352have full ac- 34, Lots Terrace. Owners than half of more to Sixtieth cess Terrace rail), abutting (now on east Lot has 37,3 side destroyed. completely Ry. Ft. Smith Co. Greer, 77 Rock Little citing court, an earlier case, said: 387, S.W. ‘‘ premises abutting upon a owner company from a recover railroad city or town premises resulting construction damages his right way along on its structures other roadbed its prem- as to obstruct manner access in such the street constructed. sac was de 2The cul complained, though part Lot 36 small owner 3The lot) has been Terrace taken. of Sixtieth (opposite this though street, he fee of the ises, have no interest part premises no of his be taken and road or other skillfully *7 be structure built.” Camphellv. supra, Highway
In Comm., Ark. State we said:
‘‘ premises right con- The domain in the is of eminent in- but it Commission, is ceded the Arkansas right Constitution, that under our must, sisted this is and right property of be the owners to subordinate to the compensated damages property by their the the first for approaches bridge and the thereto. construction of the by guaranty given § Their claim the 22 of based is present pro- Rights Constitution, the Bill of of which our private property appropri- that taken, vides shall not be compensa- damaged public just or ated, use, for without therefor. it, tion property It is claimed that under whether the damaged by if it
is taken or has been not, reason operation improvements any of the construction or of made public, for the use of the the owner recover whatever damage property actually the has sustained. Under our property abutting upon the owner decisions, a or highway highway has an easement in such street or for purpose the his attaches to property property fully and in which he has as any subsequent by in the lot itself; act which that substantially impaired is easement for the benefit the .of public damage meaning a is to the lot itself within the provision the constitutional for which owner the is en- compensation. titled The reason that its easement in highway any the street or incident to the itself, lot damage, by impairment, whether destrucion or is a dam- age independent any owner and by public generally.” sustained special
The court, case, this also stated dam- that ages change grade. can be suffered because of a reached the conclusion that We have the market value ’property has reduced destruction abutting premises, they of Sixtieth compensation therefor. are entitled
¿78 finds indicated, as we review, order under compensation, it are entitled to until thereof the amount withholds a determination of question liability Nei- court. has been decided appealability questioned finality ther side they for like both would it order, for is evident principal fact, in advance. issue to be determined parties recognize not a court’s decree stipulated, they trial, order, final at the outset appellees, would order the court held for event Supreme appealable an Court. be considered order to we matter that a final however, The want of order, ordinarily raise ourselves. reviewing final limited to
Under the statute are *8 (Repl. judgments Ark Ann. § and decrees. Stat. 27-2101 1962). parties judgment
“A to be final must dismiss discharge them the action or conclude court, from the Piercy rights subject-matter controversy.” to v. Baldwin 205 Ark. 2d 1110.” 413, 168 S.W. order,
An before which establishes us, such as one plaintiff’s right-to de recover, but future leaves recovery, final. termination the amount exact of his Fitzgerald Phillips, Walker, Ark. 92 41 Sennett v. 85; Joplin Ark. Miners’ Bank 607, 123 769; v. Church S.W. ill, 141 Ark. 695. S.W. subject appeal We therefore dismissal. to This we have misled counsel for however, realize, inadvertently by having Highway Commission allowed point (the piecemeal review in cases several similar such raised), having Com- such as State supra. McNeill, Hence, we have considered this mission v. opportunity appeal take merits, its practice we shall revert to the better that hereafter state reviewing only judgments and final. decrees that are cross-appeal, we find no are merit, since we As to protected opinion adequately are un- of the any damage compensation filed for for which the bond der due. expressed, In accordance with the herein views part, part, decree is affirmed and reversed in and the proceedings, cause remanded for further not inconsistent opinion. with this part
Mr. Justice McFaddin concurs dissents part. (concurring Bn. F. McFaddin, Associate Justice dissenting). agree thoroughly portion I with that of the Opinion Majority which holds that the entire case should fully developed damages he on before we are asked to re- any part equity view of it. When the trial court finds plaintiff liability, has not made a on case then the com- plaint may offering be dismissed without the evidence as damages. This is because of our statute on demurrer (Ark. [Repl. 1962]). to the evidence Ann. § Stat. 27-1729 But when, here, as the Trial Court found that there is parties liability, completion delay have no get Supreme pass the trial in order to Court to on that question completing before the evidence in the Trial Court damages. as to Piecemeal trial is avoided much as possible;-so agree portion I Majority with that of the Opinion completion regarding of the trial below, since Highway Department damages is liable for some in this case.
My goes part Majority Opinion dissent to that of *9 damage. My limits the elements of recoverable angle views on my of the case are contained dissent in Ark. State Comm. McNeill, 238 Ark. there no need for me to restate these views in this again preserve I dissent.' dissent order to such views as I stated in the McNeill case.