Niesen v. Carroll Electric Cooperative Corp.

575 S.W.2d 686, 264 Ark. 881, 1979 Ark. LEXIS 1270

• Court: Supreme Court of Arkansas
• Decided: January 22, 1979
• Docket: 78-160
• Status: Published

Opinions

Conley Byrd, Justice.

Carroll Electric Cooperative Corporation filed an eminent domain action for a right-of-way on lands owned by Thomas G. and Ann M. Niesen and at the same time secured an order for immediate possession. The Niesens filed a counterclaim challenging the validity of the order of possession entered by the Circuit Court on the basis that the statutes upon which Carroll Electric relied were unconstitutional. In the same pleading the Niesens alleged:

“The Niesens say further that Carroll Electric has taken land in excess of the easement sought by the Complaint, that such taking is trespass for which the Niesens are entitled to damages. The Niesens say that if the condemnation of the described easement is proper under the existing complaint then they are entitled not only to recover full value of the land lost to the easement but also diminished value to adjacent land, additional damage for trespasses inflicted and a clear, precise and restrictive declaration of the exclusive uses for which the easement can be employed.”

In addition the Niesens prayed for damages in the total amount of $246,700 including punitive damages of $200,000.

The Circuit Court ruled that the constitutional issues were non-damage questions which the Circuit Court was not entitled to hear and transferred the matter to Chancery. The Chancery Court, after the submission of briefs and arguments, ruled against the Niesens on the validity of the order of possession and the constitutionality of the statutes involved. The order entered by the Chancery Court, in so far as here pertinent, provides:

“IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the allegations contained in defendants’ counterclaim wherein the constitutionality of Arkansas Statutes Annotated Section 35-301 et seq, and Section 73-240 and 242 are without merit and should be and are hereby dismissed for want of equity.

IT IS FURTHER ORDERED that since the remaining issues raised by the pleadings of the parties in this case are issues of law which are clearly cognizable in Circuit Court with the aid of a jury, this cause is transferred back to the Madison County Circuit Court for resolution of the said remaining issues in that forum.”

As can be seen from the foregoing the Chancellor only dismissed a part of the Niesen’s counterclaim — leaving for trial in the Circuit Court those portions that presented a triable issue. Such an interlocutory order is not a final order from which an appeal can be taken, Independent Insurance Consultants, Inc. v. First State Bank of Springdale, 253 Ark. 779, 489 S.W. 2d 757 (1973).

Appeal dismissed.

Hickman, J., dissents.