*1 enclosed by a fence for well over the seven year statutory period.
Based the above upon evidence the chancellor found that Hollis acquired actual, title to the land by being notorious, adverse, hostile, open, continuous, exclusive possession for a time exceeding seven years, and we cannot say finding against the preponderance of the evidence.
Appellant also argues trial court erred in finding executrix of the Hollis estate could sell the decedent’s property without with complying the Probate However, Code. we do not reach this argument because no defect in the conveyance from the estate of Hollis to appellee could have any effect on appellant’s claim to title. Nor does the fact that the question may two feet overlap onto an adjacent landowner’s property affect appellant’s claim to the title. We find no error.
Affirmed.
CITY OF FAYETTEVILLE v. McILROY
BANK & TRUST COMPANY et al 82-200 S.W.2d Court of
Supreme Arkansas Opinion delivered March [Rehearing April denied 1983.*] and Holt JJ., grant rehearing. and Purtle, *Adkisson, *2 City Atty., appellant. McCord, N. for James appellees. Ball, Adams, Mourton & for George City In the Smith, 1973 Rose Justice. regulating Fayetteville adopted comprehensive a ordinance height, requirements signs size, and setback within city. preamble among The recited other considerations city’s greatly its scenic resources had contributed development, scattering signs through- economic preservation out the was detrimental to the of those purpose resources, scenic preserve and that a of the ordinance was city’s beauty. natural The ordinance was designed regulate signs date, all erected after its effective signs existing January eventually 19, 1973,and to eliminate conforming not accomplish to the restrictions in the ordinance. To purpose
the latter the ordinance directed that all non-conforming signs on-site either be altered to conform or be removed within seven non-conforming signs brought
Severalowners of at once judgment! declaring suit for a the ordinance to be uncon application stitutional on its face and also in its to them. The trial court held the ordinance to be unconstitutional as applied plaintiffs. except to the Weaffirmed that decision flashing signs to certain that were hazardous to traffic. H, Inc., 148, v. S & Ark. 94 547 S.W.2d (1977), opinions noted Ark. L. Rev. Three opinion approved by case, were written in but no was a majority. ordinance, The case at bar involves the same pertinent provisions quoted of which in S H.& seven-year grace period
After the expired, present declaratory judg- had suit for a injunctive September 18, 1980, ment and by relief was filed on — appellees liquor bank, dealer, the five a two motel owners, company, together and a who own six non- conforming signs parties fully developed Fayetteville. in a commercial zone The by stipulation and facts as to
the case chancellor, would The testify. as to what various witnesses decision, held the S & H governed by case to finding taking plaintiffs’ the ordinance unconstitutional as a The decree just compensation. enjoined enforcement ordinance these against plaintiffs. of the (1) of the Rule jurisdiction readily apparent. Our case (c). (a)
The six between appellees’ lawfully were erected with an August, May, average age today more than There is no of the actual value proof of the Their any value salvage negligible. of a that the cost of president sign company testify *3 from constructing conforming replacements range $1,150 $4,356 for a motel to for a restaurant owned sign by the All the have been appellee sign company. signs fully for federal income depreciated tax If the seven- purposes. reasonable, year amortization is found to be if it is period but also found to be unreasonable the to require plaintiffs remove the the will signs, city remove them without cost to the plaintiffs for them. preserve salvage that witnesses would plaintiffs’ is stipulated
It that each testify of their has a useful life of signs remaining The city’s witnesses would that in no testify instance is that useful life remaining more than 5 The plaintiffs do not contend that they would suffer businesses if losses are they their required replace non-conforming signs with ones. conforming Neither do the plaintiffs contend that their real if property would decrease in value they required to remove the non-conforming
On the facts of this we case hold that the ordinance is valid as to these be appellees, must removed.
In view of the trend of the decisions in strong more, various states during thirty years it can past hardly doubted that an ordinance such as this one is valid to be erected in the future. At one time courts held pretty generally ordinances could not be zoning if aesthetic sustained rested they primarily solely upon considerations, but that of view is point See disappearing. annotations, 1222, 1235 A.L.R.3d 486, (1968); 21 A.L.R.3d If (1977). the inhabitants of a or town want to make in surroundings which live and they work more beauti ful or more attractive or nothing more there is charming, the constitution forbidding of reasonable adoption measures to attain that goal. bar, as in the difficulty, case at is created by
presence of existing unsightly structures. Billboards and junkyards are the most common At first it examples. was widely throught the exemption of non-conforming structures would solve the problem on the assumption that time That, would repair however, the mistakes of the past. did not happen, as Chief Kenison explained detail Justice in Lachapelle v. 485, 225 Town Goffstown, N.H. A.2d 624, 22 A.L.R.3d Rather to the non contrary, conforming value, structures often increased being monopolies protected by the law itself zoning from the intrusion of competitors. course,
Of measures were unknown to the zoning common law. It is thus not surprising zoning problem such as the elimination uses cannot be law, solved the common satisfactorily by either exercise of eminent or by domain resort to the law of nuisances. Ultimately the courts came to realize that *4 same principles laws themselves must justify zoning be also invoked to eliminate A uses. reasonable accommodation be must found between the welfare and private ownership.
The most successful has been the of solution enactment laws, amortization such as the now ordinance at issue. The American Law Institute has summed up prevailing view: “Amortization were established regulations on the owner should be able to principle property his investment in recoup an land use within a existing time, but that after that time he could particular period be forced the use reasonably to discontinue without payment the time in relation to compensation. By varying period the landowner’s investment of amortization proponents to obtain sought judicial the tech- support comparing and tax accounting to as used for depreciation ñique Code, A.L.I., p. A Model Land Development purposes.” have that for the most the courts part After (1976). stating amortization, many the text cites been sympathetic decisions, cases. In that sign ten billboard or including have ranged amortization approved periods category five A more discussion complete from one year Williams, cases is to be found in American the amortization Law, also, See Planning (1975). Wright, Land 116.06 § A 3 UALR Comparative Analysis, Law Arkansas: Zoning 421,444 There be no doubt that the principle can L.J. of amortization embedded the law. firmly
We that the amortization must be fair recognize period owners, but cases many approv- to the property among of amortization we find none ing theory suggesting Moreover, owners. seven unfair to period years has the life of the another litigation prolonged signs by three As the SirH stated: “The concurring opinion If ordinance cities is overdue.” an regulation signs by long sustained, as moderate as the one before us cannot be of effective almost non- becomes possibility regulation existent.
Reversed and remanded for any necessary proceeding with respect the removal
Adkisson, Purtle, and Holt dissent. JJ., 2, 22, Holt, Art. Consti- Justice, dissenting. Frank § of Arkansas (1874), tution states: right any is before and than higher sanction; constitutional shall not and private property taken, use, appropriated damaged The trial court held the of the ordinance in application violated this question provision, following constitutional *5 H., Inc., 148, v. S. & Ark. City 261 547 S.W.2d of No is that do not argument 94 made
505 forced “private constitute or that their removal property” not or them. taking, does involve appropriating damaging
Essentially, I understand the holds not majority only ordinance, future, an that as to erected in the can be sustained when based or on aesthetic primarily solely considerations, but also that pre-existing, non-conforming uses can be just compensa- eliminated without of payment tion an primarily solely amortization ordinance for aesthetic purposes.
Although
correct in
the trend is
majority
stating
toward
of
upholding
amortization method
eliminating
uses,
non-conforming
are in conflict on this
cases
issue
on
they
whether aesthetic
is a
improvement
proper
for which the
goal
police power
be invoked. For
may
see Board
example
v.
Supervisors
City County
James
of
of
Rowe,
Va.
(1975);
Adkisson, Holt, this dissent. J., join MACK, v. Michael Allen Blanche CLUCK et al Administrator, alet 82-247 S.W.2d 442 Court of Arkansas
Supreme delivered March Opinion [Rehearing April denied 1983.]