dissenting. Irrespective of how the majority may rationalize its reasons for reaching an equitable result, this action is nothing more nor less than a suit against a tort-exempt municipality for damages occasioned by negligence. We made one such foray into this arena in Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), an opinion that precipitated the passage in 1969 of Act 165, codified at Ark. Code Ann. § 21-9-301 (1987), which provides:
It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state shall be immune from liability for damages. No tort action shall lie against any such political subdivision because of the acts of their agents and employees.
This statute is unequivocal in its prohibition against any action sounding in negligence, whether based upon trespass or any other tort. Statutes granting immunity from tort liability to subdivisions of the state have been held constitutionally sound by this court. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984).
We are today holding that, solely as a result of a municipality’s recurring acts of negligent trespass, without a showing of any intent, offended parties may elect to consider their property “taken” by the political subdivision. I do not agree that this holding is within the meaning or the spirit of the Arkansas Constitution, the acts of the General Assembly, or our prior decisions.
The majority cites in support of its rationale the case of Jones v. Sewer Improvement Dist. No. 3. of Rogers, 119 Ark. 166, 177 S.W. 888 (1915), stating that we there noted with “apparent approval” that the plaintiff had, in a separate proceeding, been allowed to recover for the taking of his property by a sewer improvement district due to the negligent operation of a septic tank. The issue of damages, however, was not before this court in Jones', rather, we were asked to enjoin a sewer system from operating in such a manner that created a nuisance on the lands of a farmer. The proper remedy was requested, and, in reversing the lower court, we ordered an abatement of the nuisance.
The only other Arkansas decision cited as authority by the majority is McLaughlin v. City of Hope, 107 Ark. 442, 155 S.W. 910(1913). There, the city intentionally dumped raw sewage into a stream to the injury of a riparian land owner who used water from the stream in his business. In McLaughlin, we accepted the proposition that when a city or town is authorized to collect the sewage of its inhabitants and discharges the waste into a private stream to the damage of the lower riparian owners, this conduct amounts to an exercise of the power of eminent domain for which compensation should be paid.
The major distinction between McLaughlin and the present case relates to scienter. In McLaughlin, there was no negligence involved — the waste was discharged into the stream by the city with knowledge, and the act was intentional. Here, recurring acts of negligence were shown in the city’s failure to adequately maintain a lift pump to transport sewage away from the appellants’ property. The appellants’ proper remedy would have been an action to seek abatement of the nuisance instead of one for damages.
In Jones v. Sewer Improvement Dist. No. 3 of Rogers, we said:
[T]his court has uniformly held that neither municipal corporations nor local improvement districts nor their officers may be sued at law for tort; but it does not follow that in a proper case they may not be enjoined from creating a nuisance or be required to abate one already created by them. Indeed, this affords ground for equitable relief in actions like this.
A tort is a tort, even if it is called “inverse condemnation,” and an action in tort cannot be brought against a municipality.
I respectfully dissent.
Hickman, J., joins this dissent.