114 Ark. 334 | Ark. | 1914
(after stating the facts). Article 12, section 9, of our Constitution, under the title, “Municipal and Private Corporations,” provides as follows: “No property, nor right-of-way, shall 'be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.”
In Cribbs v. Benedict, 64 Ark. 556, the court had under consideration the question as to whether or not a land owner could receive compensation for land taken* for the use of the public in benefits that the remainder of his land would receive by reason of the improvement. In determining this question, the court had in mind article 2, section 22, of the Constitution, which provides that private property shall not be taken, etc., for public use without just compensation, and the other sections of our Constitution which guarantee to the owner of property taken for public use just compensation, as embodied in the eminent domain provisions. Chapter 58, sections 2898 to 2901, inclusive, of Kirby’s Digest. Appellee relies upon these provisions of the Constitution to sustain the ruling of the -court on the excluded testimony and the instruction which the court gave.
In the case of Cribbs v. Benedict, supra, we said: “Where the Constitution is silent upon the subject, the decisions of the courts present diverse views upon the right to consider, by way of compensation for a portion of his land taken for public use, the benefits thereby accruing to the remainder. The view which seems to us to accord with reason, and which is supported by high authority, is that where the public use for which a portion of ia man’s land is taken so enhances the value of the remainder -a-s to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in /benefits. And the benefits which will be thus considered must be those which are local, peculiar and special to the owner’s land, who has been required to yield a portion pro bono publico.” Numerous authorities are cited in the opinion in support of the doctrine. See also the additional authorities cited in appellant’s brief.
The doctrine announced in the above case is controlling here and shows that the ruling of the court in excluding the offered testimony and in giving the instruction was error.
The appellee contends that there was no allegation or proof to the effect that the improvement contemplated here was peculiar and special to the owner’s land as contradistinguished from the benefits to the general public, but the rulings of the court were placed upon the broad ground, as expressed in the instruction, “that you can not pay a man for his property in betterments.” This would exclude the idea of peculiar and special benefits being considered by way of compensation for land taken and appropriated to the public use. Besides the allegations of the -complaint and the testimony were sufficient to warrant a submission to the jury of the issues as to whether -or not appellee would receive peculiar and special benefits. It appears that it was necessary in order to straighten the street, to take four feet which jutted out in front of appellee’s lot.
Appellee also insists that the appellant is a corporation within the meaning of article 12, section 9, of .the Constitution, supra, and that under the provisions of that section it would have to make compensation in money, and that no benefits, special or otherwise, could be considered by way of compensation.
While section 8 is included under the head of “Municipal and Private Corporations,” it is manifest from the language of that section, as well as the context of other sections in article 12, that the word “corporation” as used in section 9 refers to private corporations, for when land is appropriated for the use of the public it is ■not appropriated “to the use of” any corporation. Here the land is condemned by the municipal corporation to be appropriated to the use of the public.
The rulings of the court above referred to were erroneous. The judgment is therefore reversed, and the cause remanded for a new trial.
