AAC
F a m ily
an d » F» »r»i »e »n» d» »s » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » »
Condemnation by county — measure of damages
County Law Update
T
he measure of damages in a con- does not file an eminent domain proceeding, the Arkansas that all demnation case depends on owner may initiate his own inverse condemna- counties, … and whether the land is taken by the tion action. The court said that, in either event, all other political sovereign or by another entity. the same measure of damages would be used. subdivisions of When the sovereign exercises its right to take a See Thompson v. City of Siloam Springs, 333 Ark. the state and any portion of a tract of land, the proper measure 351, 969 S.W.2d 639 (1998). Fault has nothing of their boards, of compensation is the difference in fair market to do with eminent domain or inverse condem- commissions, value of the entire tract immediately before and nation; it is the taking of property that is action- agencies, authorMike Rainwater after the taking. This measure precludes any able. Recovery under the condemnation statute ities, or other Risk Management claim for value that would be added by a differ- is exclusive. See Missouri & N. A. R. Co. v. Chap- governing bodies Legal Counsel ent use contemplated by the taking entity, such man, 150 Ark. 334, 234 S.W. 171 (1921). shall be immune as changing the use of the land from from growing pine trees to a county landfill. liability and from suit for damages, Market value “Immediately Before except to the extent that they may and Immediately After” the taking be covered by liability insurance. No When a governmental entity like a tort action shall lie against any such he proper measure of compencounty exercises its right to take a tract political subdivision because of the of land, the proper measure of compenacts of its agents and employees.” sation is ‘the difference in fair sation is “the difference in fair market The immunity granted to a counvalue of the entire tract immediately ty extends to a county official or market value of the entire track immedibefore and after the taking,” according employee if the official or employee to Property Owners Improvement Dist. v. was discharging a county function ately before and after the taking.’ Williford, 40 Ark.App. 172, 843 S.W.2d at the time of the alleged negligent 862 (1992). When another entity such act. See Matthews v. Martin, 280 as a railroad, telephone company or, Ark. 345, 658 S.W.2d 374 (1983); in this case, an electric company, exerAutry v. Lawrence, 286 Ark. 501, cises the right of eminent domain, just 696 S.W.2d 315 (1985) and Couscompensation is measured by the value of the No additional compensation allowed ins v. Dennis, 298 Ark. 310, 767 S.W.2d 296, portion of the land taken plus any damage to Article 12, Section 5, of the Arkansas Con- 297 (1989). the remaining property. See Id; see also Arkansas stitution states “No county ... shall ... obtain or But, no immunity La. Gas Co. v. Howell, 244 Ark. 86, 423 S.W.2d appropriate money for, ... , any corporation, for intentional torts 867 (1968); Arkansas La. Gas Co. v. James, 15 association, institution or individual.” It would, Many condemnation lawsuits also allege the Ark. App. 184, 692 S.W.2d 761 (1985). DeBoer therefore, be an unconstitutional gift for a coun- intentional tort of trespass. The Arkansas Suv. Entergy Arkansas, Inc., 82 Ark.App. 400, 109 ty to somehow compensate over and above the preme Court has ruled that statutory tort imS.W.3d 142, (2003). difference in fair market value of the entire tract munity does not apply to prevent liability for an Measure of damages is same for either immediately before and after the taking. intentional tort (e.g., assault, battery, false imcondemnation or inverse condemnation “The difference in fair market value of the enprisonment, defamation, outrage, trespass). See In DeBoer v. Entergy Arkansas, Inc., 82 Ark. tire tract immediately before and after the takBattle v. Harris, 298 Ark. 241, 766 S.W.2d 431 App. 400, 109 S.W.3d 142, (2003), a landown- ing” is the exclusive remedy absent a statutory (1989). er sued an electric utility for the replacement abrogation of the common law rule. value of trees cut by the electric utility. The utilNegligence immunity still ity claimed that the measure of damages was that applies to claims of “Damages” (Mike Rainwater, a regular contributor to permitted by the laws of condemnation, and that All counties, county boards, county commisthe landowner was precluded from utilizing any sions, county agencies, county authorities and County Lines and lead attorney for AAC Risk other theory for a higher measure of damages. the officials and employees thereof, are immune Management, is principal shareholder of RainwaThe court explained that an electric utility may from negligence liability for conduct arising ter, Holt, and Sexton, P.A., a state-wide personal exercise the power of eminent domain by filing from their official capacity. Immunity from neg- injury and disability law firm. He has been a lawyer for more than 30 years, is a former deputy prosa condemnation petition in court, and, in that ligence liability is a legislative gift. proceeding, damages for the taking are assessed; Arkansas Code Annotated 21-9-301 states, “It ecuting attorney and has defended city and county however, if the utility takes an owner’s land but is declared to be the public policy of the State of officials for more than 25 years.)
“T
14
”
COUNTY LINES, SUMMER 2012
