Ed. F. McFaddin, Justice.
The question here presented is the power of the appellee, Arkansas State Game & Fish Commission, to enforce its “Special Regulation” of October 23, 1950, insofar as affects the lands of these appellants.
Background Facts.
The Arkansas General Assembly of 1927 enacted Act No. 95, which, by its caption, provided for “the establishment and operation of Game and Fish Refuges. . . .”1 This Act (hereinafter called the “1927 Act”) authorized the establishment of a Game and Fish Refuge under certain circumstances, when requested by owners of at least 640 acres. Section 2 of the 1927 Act provided that the landowners so consenting to the establishment of the Refuge would surrender all rights to regulate hunting on said lands, and that such agreement, signed by the landowners, would continue in force for an uninterrupted period of not less than five years. Section 7 of the 1927 Act gave the Commission authority to provide rules and regulations governing such Refuge, and made any violation of the regulations to be punishable as a misdemeanor.
In 1930, the Game & Fish Commission (hereinafter called “Commission”) 2 duly established a Game Refuge of several thousand acres in Grant County. Even though the Refuge was stocked with deer, other wild life was also protected. The lands owned by the appellants herein (being 21 tracts and totalling approximately 858 acres) were not a part of the Game Refuge proper, but were lands leased to the Game Refuge for a 10-year term, under the provisions of § 2 of the 1927 Act. These leases were renewed in 1940 for another 10-year term. But in 1950 when the leases expired, these appellants refused to again lease their lands to the Commission for Refuge purposes.
In the meantime, the Commission had, on April 15, 1931, under the authority of § 7 of the 1927 Act, promulgated certain rules and regulations governing lands in, or leased to, a Game Refuge, and these rules are hereinafter referred to as the “1931 rules.”3 In 1950 when the appellant landowners refused to renew the leases of their lands to the Game Refuge, the Commission ascertained that appellants’ lands were entirely surrounded by lands that were a part of the Game Refuge; and the Commission then adopted its “Special Regulation” of October 23, 1950, here at issue, and which reads:
“All lands located within the boundaries of a State Game Refuge that are completely surrounded by other lands on which petition and agreement have been presented to the Commission for establishment of said State Game Refuge, and approved by the Commission, shall be and are hereby closed to all types of hunting. The same regulations shall apply to said lands as set up in rules and regulations approved April 15, 1931, under authority of Act 95 of the 1927 Acts of the General Assembly.”
This Case.
On November 9, 1950, the appellants filed in the Pulaski Chancery Court this present suit against the Commission,4 setting forth the background facts substantially as heretofore detailed, and alleging that the said “Special Regulation” of October 23, 1950, was violative of Art. 2, § 22, of the Arkansas Constitution. The prayer of the complaint was that the Commission be enjoined from enforcing its said regulation of October 23, 1950, insofar as concerned the lands of these appellants.
The cause was heard on January 3,1952, on oral testimony, which developed, inter alia, that some of the appellants’ lands involved in this suit were used for home and farm purposes; that because of the 1950 “Special Regulation” and the 1931 rules, such parties were unable to protect their gardens, crops, and orchards from destruction by marauding deer;5 that as a result, the use of the lands was restricted, and the value of the lands was materially reduced; that one of the appellants, Shellnut, had tried without success to get the Commission to satisfy his claims while his lands were under lease; and that the failure of the Commission to do so was a factor in the refusal of such landowner to renew his lease at its expiration in 1950.
The Chancery Court denied the appellant landowners any relief, and they have appealed. We hold that the landowners are entitled to relief.
Even though Constitutional Amendment No. 35 gives broad powers to the Commission, nevertheless, the Commission is subservient to, and bound by, Art. 2, § 22 of the Constitution, which reads:
“. . . private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”
It is not necessary that the property should be completely taken in order to bring the case within the protection of this Constitutional guaranty.6 It is only necessary that there be such serious interruption of the common and necessary use of the property as to interfere with the rights of the owner. See Pumpelly v. Green Bay Co., 13 Wall. (80 U. S.) 166, 20 L. Ed. 557.
The effect of the Commission’s “Special Regulation” of 1950 was to seriously restrict the appellants’ use of their lands, and was, therefore, violative of the quoted Constitutional provision. Under the 1927 Act, the Commission had the right to enforce its 1931 rules on lands within the Game Refuge, or on lands of owners who had leased their lands to the Game Refuge. When in 1950 the appellant landowners refused to renew their leases to the Game Refuge, then the Commission’s attempt to enforce its 1931 rules on the appellants’ lands constituted a damaging of private property for public use, within the Constitutional inhibition hereinbefore quoted.
If the Commission considered the appellants’ land to be necessary for the Game Refuge, then the Commission could have proceeded by eminent domain to acquire the plaintiffs’ lands, or an easement thereon.7 Nothing in the case of Hampton v. Arkansas State Game & Fish Comm., 218 Ark. 757, 238 S. W. 2d 950, prevents the Commission from exercising eminent domain when the purpose of the taking is the protection of wild life, rather than its destruction, which latter was the situation in the Hampton case. In the case at bar, the Game Refuge is for the preservation of wild life. In the Hampton case, the proposed activity was the killing of wild life. The Commission’s “Special Regulation” of 1950 was an attempt to impose an easement or servitude on the appellants’ lands, without the consent of the landowners, and without complying with the eminent domain provisions of our Constitution. In short, under the facts here shown, the Commission was damaging the appellants’ property without due compensation, and, therefore, the 1950 “Special Regulation” was violative of Art. 2, § 22 of the Constitution, insofar as the rights of the appellant landowners were concerned.
In this Court, the Commission argues that under Constitutional Amendment No. 35, the Commission has the authority to “divide the State into zones”;8 and that the “Special Regulation” of 1950 is valid under such authority. We find it unnecessary to discuss the zoning power of the Commission, because it is self evident that the Commission’s “Special Regulation” of 1950 was not a zoning plan,9
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Ed. F. McFaddin, Justice.
The question here presented is the power of the appellee, Arkansas State Game & Fish Commission, to enforce its “Special Regulation” of October 23, 1950, insofar as affects the lands of these appellants.
Background Facts.
The Arkansas General Assembly of 1927 enacted Act No. 95, which, by its caption, provided for “the establishment and operation of Game and Fish Refuges. . . .”1 This Act (hereinafter called the “1927 Act”) authorized the establishment of a Game and Fish Refuge under certain circumstances, when requested by owners of at least 640 acres. Section 2 of the 1927 Act provided that the landowners so consenting to the establishment of the Refuge would surrender all rights to regulate hunting on said lands, and that such agreement, signed by the landowners, would continue in force for an uninterrupted period of not less than five years. Section 7 of the 1927 Act gave the Commission authority to provide rules and regulations governing such Refuge, and made any violation of the regulations to be punishable as a misdemeanor.
In 1930, the Game & Fish Commission (hereinafter called “Commission”) 2 duly established a Game Refuge of several thousand acres in Grant County. Even though the Refuge was stocked with deer, other wild life was also protected. The lands owned by the appellants herein (being 21 tracts and totalling approximately 858 acres) were not a part of the Game Refuge proper, but were lands leased to the Game Refuge for a 10-year term, under the provisions of § 2 of the 1927 Act. These leases were renewed in 1940 for another 10-year term. But in 1950 when the leases expired, these appellants refused to again lease their lands to the Commission for Refuge purposes.
In the meantime, the Commission had, on April 15, 1931, under the authority of § 7 of the 1927 Act, promulgated certain rules and regulations governing lands in, or leased to, a Game Refuge, and these rules are hereinafter referred to as the “1931 rules.”3 In 1950 when the appellant landowners refused to renew the leases of their lands to the Game Refuge, the Commission ascertained that appellants’ lands were entirely surrounded by lands that were a part of the Game Refuge; and the Commission then adopted its “Special Regulation” of October 23, 1950, here at issue, and which reads:
“All lands located within the boundaries of a State Game Refuge that are completely surrounded by other lands on which petition and agreement have been presented to the Commission for establishment of said State Game Refuge, and approved by the Commission, shall be and are hereby closed to all types of hunting. The same regulations shall apply to said lands as set up in rules and regulations approved April 15, 1931, under authority of Act 95 of the 1927 Acts of the General Assembly.”
This Case.
On November 9, 1950, the appellants filed in the Pulaski Chancery Court this present suit against the Commission,4 setting forth the background facts substantially as heretofore detailed, and alleging that the said “Special Regulation” of October 23, 1950, was violative of Art. 2, § 22, of the Arkansas Constitution. The prayer of the complaint was that the Commission be enjoined from enforcing its said regulation of October 23, 1950, insofar as concerned the lands of these appellants.
The cause was heard on January 3,1952, on oral testimony, which developed, inter alia, that some of the appellants’ lands involved in this suit were used for home and farm purposes; that because of the 1950 “Special Regulation” and the 1931 rules, such parties were unable to protect their gardens, crops, and orchards from destruction by marauding deer;5 that as a result, the use of the lands was restricted, and the value of the lands was materially reduced; that one of the appellants, Shellnut, had tried without success to get the Commission to satisfy his claims while his lands were under lease; and that the failure of the Commission to do so was a factor in the refusal of such landowner to renew his lease at its expiration in 1950.
The Chancery Court denied the appellant landowners any relief, and they have appealed. We hold that the landowners are entitled to relief.
Even though Constitutional Amendment No. 35 gives broad powers to the Commission, nevertheless, the Commission is subservient to, and bound by, Art. 2, § 22 of the Constitution, which reads:
“. . . private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”
It is not necessary that the property should be completely taken in order to bring the case within the protection of this Constitutional guaranty.6 It is only necessary that there be such serious interruption of the common and necessary use of the property as to interfere with the rights of the owner. See Pumpelly v. Green Bay Co., 13 Wall. (80 U. S.) 166, 20 L. Ed. 557.
The effect of the Commission’s “Special Regulation” of 1950 was to seriously restrict the appellants’ use of their lands, and was, therefore, violative of the quoted Constitutional provision. Under the 1927 Act, the Commission had the right to enforce its 1931 rules on lands within the Game Refuge, or on lands of owners who had leased their lands to the Game Refuge. When in 1950 the appellant landowners refused to renew their leases to the Game Refuge, then the Commission’s attempt to enforce its 1931 rules on the appellants’ lands constituted a damaging of private property for public use, within the Constitutional inhibition hereinbefore quoted.
If the Commission considered the appellants’ land to be necessary for the Game Refuge, then the Commission could have proceeded by eminent domain to acquire the plaintiffs’ lands, or an easement thereon.7 Nothing in the case of Hampton v. Arkansas State Game & Fish Comm., 218 Ark. 757, 238 S. W. 2d 950, prevents the Commission from exercising eminent domain when the purpose of the taking is the protection of wild life, rather than its destruction, which latter was the situation in the Hampton case. In the case at bar, the Game Refuge is for the preservation of wild life. In the Hampton case, the proposed activity was the killing of wild life. The Commission’s “Special Regulation” of 1950 was an attempt to impose an easement or servitude on the appellants’ lands, without the consent of the landowners, and without complying with the eminent domain provisions of our Constitution. In short, under the facts here shown, the Commission was damaging the appellants’ property without due compensation, and, therefore, the 1950 “Special Regulation” was violative of Art. 2, § 22 of the Constitution, insofar as the rights of the appellant landowners were concerned.
In this Court, the Commission argues that under Constitutional Amendment No. 35, the Commission has the authority to “divide the State into zones”;8 and that the “Special Regulation” of 1950 is valid under such authority. We find it unnecessary to discuss the zoning power of the Commission, because it is self evident that the Commission’s “Special Regulation” of 1950 was not a zoning plan,9 but was a plan for a perpetual easement or servitude, and was violative of the Constitutional provision previously quoted.
The Commission urges that the appellants have proceeded in the wrong forum: that is, the Commission says that the appellants should have proceeded at laA instead of in equity. The appellants counter with the answer that their remedy at law was inadequate and incomplete. The facts show that the Commission made its “Special Regulation” of 1950 without notice to these landowners; and that they did not learn of this regulation until the Commission proceeded to attempt to enforce it against the appellants and their lands. The appellants then immediately filed this suit and obtained a temporary injunction, which remained in force until shortly before the trial of this cause.
The rule is that equity does not act when the remedy at law is adequate and complete; but here, there is evidence that gardens, orchards, and crops could have been hopelessly and permanently destroyed, except for the injunction granted by the equity court. When a State Agency acts illegally, it is subject to be restrained by suit in equity. Federal Compress Co. v. Call, 221 Ark. 537, 254 S. W. 2d 319. In Jenson v. Radio Co., 208 Ark. 517, 186 S. W. 2d 931, we said:
“The general rule of equity jurisdiction in suits to restrain acts of public officers is stated in 28 Am. Jur. 356, as follows: ‘There is no doubt but that equity will exercise jurisdiction to restrain acts or threatened acts of public corporations or of public officers, boards, or commissions which are ultra vires and beyond the scope of their authority, outside their jurisdiction, unlawful or without authority, or which constitute a violation of their official duty, whenever the execution of such acts would cause irreparable injury to, or destroy rights and privileges of, the complainant, which are cognizable in equity, and for the protection of which he would have no adequate remedy at law. An injunction to prevent an officer from doing, that which he has no legal right to do is not an interference with his discretion.’
“This court held in the case of Rowland v. Saline River Railroad Company, 119 Ark. 239, 177 S. W. 896, that injunction is the proper remedy to curb the abuse of power of the railroad commission in the issuance of an arbitrary and unreasonable order. Injunction will issue to prevent a public official from unlawfully assuming power over property in such manner as to infringe upon or violate the rights of a citizen. Noble v. Union River Logging Railroad Company, 147 U. S. 165, 13 S. Ct. 271, 37 L. Ed. 123.”
Without laboring the point, we conclude that equity had jurisdiction to restrain the Commission from the enforcement of its 1950 “Special Regulation,” insofar as concerned the lands of these appellants, since the order was — under the facts here shown — violative of Art. 2, § 22 of the Constitution. The decree is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
The Chief Justice and Justices Holt and RobinscSn dissent.