Supplemental Opinion on Denial of Rehearing delivered June 2, 1975 522 S.W. 2d 839
John A. Fogleman, Justice.On petition for rehearing, appellant states the following as one ground:
The Court erred in overruling .principles of law announced in the cases of Arkansas State Highway Commission v. Palmer, 222 Ark. 603, 261 S.W. 2d 772, and The State Life Insurance Company of Indianapolis, Indiana v. Arkansas State Highway Commission, 202 Ark. 12, 148 S.W. 2d 671. The principles of law were (1) that where a county condemns land for highway purposes upon petition of the Arkansas State Highway Commission, the county becomes liable for damages arising from the county court order and not the Arkansas State Highway Commission; (2), where appellees have a remedy at law in that they can pursue their claim against the county for damages arising from the county court order, equity should not grant an injunction.
In argument, appellant says that we held that the statute of limitations had not run against appellee and that appellee still has a right to determination of her damages resulting from the taking of the fee title by the county court order, but complains that we overlooked the fact that appellee’s claim for damages is against the county and not appellant under our holding in Arkansas State Highway Commission v. Palmer, 222 Ark. 603, 261 S.W. 2d 772. Thus, says appellant, appellee had an adequate remedy at law and injunction was improper under our holding in The State Life Insurance Company of Indianapolis, Indiana v. Arkansas State Highway Commission, 202 Ark. 12, 148 S.W. 2d 671.
In spite of the fact that we said in our original opinion that appellee still owns the fee, appellant correctly interprets the effect of our holding in that, regardless of who may be said to be the owner of the fee, appellant cannot proceed to use the area until just compensation has been paid or secured to appellee.
Appellee has asserted rights in the Coffelt Road Crossing at least from September 18, 1972 when she mQved that appellant be required to deposit $46,375 in the registry of the court, saying that closing the road at the intersection with Highway 67, without doing so would constitute a taking of private property without compensation in violation of the constitutions of Arkansas and of the United States. By an amendment to her complaint, she asserted that the first notice to appellee of appellant’s intention to enter upon and close the crossing was on September 13, 1972, and that she would be damaged in the amount of $285,000. Appellant’s answer was that the closing of Coffelt Road was a rerouting of traffic and a valid exercise of its police power.1 In seeking to have vacated a temporary injunction restraining appellant from interfering with appellee’s use of Coffelt Road crossing until appellant either deposited in the registry of the court a sum of money sufficient to cover the amount of appellee’s damages or filed a condemnation proceeding taking the crossing, appellant again relied only on the police power. In its brief on this motion, appellant first mentioned the county court order, saying that appellee at that time (December 16, 1955) had no standing to seek compensation for any damages resulting from the action proposed by appellant. Appellant again relied upon its police power and asserted that under Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S.W. 2d 728, there was no compensable damage to appellee, since the highway had been designated in the county court order as a controlled access facility. Appellee again amended her complaint to allege fee ownership of the crossing and a prescriptive right of ownership and use of it. Appellant’s answer consisted principally of a denial of these allegations.
In the court’s decree of April 17, 1974, there was a specific finding that there had been neither notice of taking of Coffelt Road crossing nor entry upon it. Appellant’s motion for reconsideration in the trial court was upon these issues principally. Otherwise it amounted to a restatement of positions previously taken by it.
Never at any time did appellant raise the issue it now asserts on petition for rehearing in the trial court. As will be seen from its statement of points, it never raised the issue in its brief on appeal. Neither of the cases now relied upon was cited until the filing of the reply brief. There appellant cited Palmer and asserted for the first time, that Pulaski county and not appellant, was liable for any claim of appellee for just compensation. This was too late. It was an issue raised for the first time on appeal. State Life Insurance Co. v. Arkansas State Highway Commission, supra, was never mentioned. We cannot now consider this issue and we have not overruled either case. Furthermore, we do not perceive any error or conflict with State Life Insurance Co. v. Arkansas State Highway Commission, supra. As a matter of fact, it was recognized in Palmer that the chancery court might do what it did. There we said:
. . . while the property owner may not sue the state or the commission acting in its name for damages, he may restrain the commission from taking his property until the damages have been paid, or provision for payment made.
In Palmer both the county court and the circuit court had rendered judgment against both the county and the highway department.
It was certainly within the jurisdiction of a court of equity to enjoin appellant from trespassing upon or appropriating the property of a landowner when the right to compensation had been denied because the fiscal year in which a county court’s order of condemnation was issued had expired and the revenues exhausted, leaving the landowner without an adequate remedy at law. Arkansas State Highway Commission v. Hammock, 201 Ark. 927, 148 S.W. 2d 324. See also, Arkansas State Highway Commission v. French, 246 Ark. 665, 439 S.W. 2d 276; Arkansas State Highway Commission v. Cook, 236 Ark. 251, 365 S.W. 2d 463. In Hammock, we said that the chancery court erred in holding that the county court order was void, but we affirmed the injunction there issued insofar as it enjoined appellant from taking the land until the landowners were compensated. In French, as here, there had been no entry upon the property before the decree was entered.2 In Cook, 35 years had elapsed between the county court order and appellant’s undertaking to take possession of a disputed ten foot strip not entered upon at the time of the county court order.
Another case similar to this one is Arkansas State Highway Commission v. Anderson, 234 Ark. 774, 354 S.W. 2d 554, where the county court order was 25 years old at the time appellant sought to enter upon right-of-way beyond the limits of that it had been using. We sustained a decree enjoining the Highway Department from going on the strip involved or attempting to use the same. Although it was clearly proper for the chancery court to enjoin appellants from entering upon the crossing until whatever compensation was due appellee has been paid or secured, it may well be that appellee has recourse to the county court under the authorities hereinabove cited and such cases as Miller County v. Beasley, 203 Ark. 370, 156 S.W. 2d 791 and Arkansas State Highway Commission v. Groom, 225 Ark. 312, 280 S.W. 2d 887. Appellant simply did not raise this question in the trial court and raised it belatedly here. The ownership of the fee is not material; appellee’s right to a day in court on just compensation is. There has not been either legal notice of the taking or entry by appellant, and there will not be as long as the injunction is in effect.
We cannot reverse the decree on an issue not raised.
Smith and Byrd, JJ., concur only in the denial of the rehearing. Jones, J., would grant the rehearing.But see Arkansas State Highway Commission v. Union Planters Bank, 231 Ark. 907, 333 S.W. 2d 904.
As pointed out in our original opinion in this case, the entry made upon the right-of-way at the time of the original construction was not inconsistent with the easement and thus insufficient to serve as notice of the rights appellant claims.