#### Roesler v. Denton.

5-3562

390 S. W. 2d 98

Opinion delivered May 17, 1965.

[Rehearing denied June 7,1965.]

*463 H. Clay Robinson and Hardin, Barton, Hardin & Jesson, for appellant.

Don Gillaspie and Mark E. Woolsey, for appellee.

Jim Johnson, Associate Justice.

This suit concerns damage to real property.

Appellants Roseler own residential property in Fort Smith, bounded on the north by Park Avenue; and on the east by a natural drainage course which ran under Park Avenue through a culvert, and over as well as under Park Avenue during heavy rains. As a part of the local highway program, this section of Park Avenue was included in what is called the Fort Smith Spur. The level of Park Avenue was raised ádjacent to appellants’ property and after the highway construction ivas completed, appellants discovered that the new culvert was inadequate to carry off excessive rainfall, resulting in flooding of their land. Appellants filed suit in Sebastian Chancery Court against appellees, members of the State Highway Commission, the Highway Director, the resident highway engineer and the highway contractors, seeking to require rebuilding of this section of the highway so as to restore the natural water courses and surface water drainage to its condition prior to said construction,. and then amended their complaint for damages for the permanent injury to their property.

We are Avell aAvare that “the right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated, or damaged by public use, Avithout just compensation therefor” (Ark. Const. Art. II, § 22) and have in the past Avrestled with the particular problem here involved. We are perforce equally cognizant of Article 5, § 20, “The State of Arkansas shall never be made defendant in any of her courts.” Were it not for the administrative relief available to claimants such as appellants through the State Claims Commission, Article 5, § 20 might Avell be considered to be violative of due process. However, the questions here raised have been thoroughly discussed in Bryant v. Ark. State Highway Commission, 233 Ark. 41, 342 S. W. 2d 415, as follows:

> *464“The chancellor was right in sustaining the demurrer, for the present proceeding falls within the constitutional prohibition of suits against the State.. The controlling language of the constitution is mandatory: ‘ The State of Arkansas shall never be made defendant in any of her courts.’ Ark. Const., Art. 5, § 20. Since the decision in Ark. State Highway Comm. v. Nelson Bros., 191 Ark. 629, 87 S. W. 2d 394, it has been settled that the Highway Commission cannot be sued, and this immunity cannot be waived even by the legislature.

> ‘ ‘ The suability of the Highway Commission was considered in a series of decisions closely following the Nelson Brothers case. In Ark. State Highway Comm. v. Partain, 192 Ark. 127, 90 S. W. 2d 968, it was held that where the Commission was threatening to take private property without making any provision for compensation, the landowner was entitled to enjoin the Commission from taking the property until an amount sufficient to cover the damages had first- been deposited in court. Such an injunction, restraining the commissioners from acting illegally, was not regarded as a prohibited suit against the State. But where the landowner stood by and permitted the Commission to take, occupy, and damage his lands, he could not maintain an action against the Commission to recover his damages, for such a coercive proceeding would constitute a suit against the State. Federal Land Bank of St. Louis v. Ark. State Highway Comm., 194 Ark. 616, 108 S. W. 2d 1077; Ark. State Highway Comm. v. Bush, 195 Ark. 920, 114 S. W. 2d 1061.

> “The case at bar falls within the latter principle, for the asserted injury to the landowners had already occurred when their suit was filed. Nevertheless counsel seek to distinguish the prior cases by arguing that these appellants did not stand by and permit their property to be damaged, since it is contended that the Commission closed the exits so quickly that there was no time for an injunction to be sought. This argument misconceives the basis for the Commission’s immunity to suit after the taking or damages has occurred. The landowner’s inability to recover damages does not rest upon the doctrine *465of laches, in that he has slept upon his rights. Bather, the underlying reason for the court’s holding is simply a recognition of the fact that an action to compel the State to redress a past injury would unquestionably constitute a suit against the State. Such a proceeding is plainly forbidden by the constitution.

> “It is also insisted that the appellants have a constitutional right to maintain the present suit. Counsel rely upon § 13 of Article 2 of the constitution, which provides that every person is entitled to a certain remedy for injuries to his property, and upon § 22 of Article 2, which declares that the right of property is higher than any constitutional sanction and that private property shall not be taken or damaged for public use without just compensation. It is contended in substance that the State’s immunity from suit is in conflict with these constitutional clauses and that the latter can be given effect only by permitting the present proceeding to be maintained.

> “This argument must be rejected. The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. The appellants’ argument, carried to its logical end, would completely destroy the State immunity from suit, for it could be argued in every case that to exempt the State from a coercive proceeding would be to deny the plaintiff a certain remedy for an injury he had supposedly suffered.

> . . . “We must conclude that this proceeding falls within the constitutional inhibition against suits against the State. If appellants have a right to compensation — a point upon which we need not express an opinion — they are limited, as we said in the Part am case, supra, to filing an administrative claim for such relief as the State may see fit to provide.”

It follows, therefore, that as to the highway commissioners and employees, the demurrer was properly sus*466tained as a suit against the State, and in the absence of an allegation that the contractors negligently failed to perforin in accordance with their contracts with the State Highway Department, the demurrer was properly sustained as to them. 'See Southeast Construction Co., Inc., v. Ellis, 233 Ark. 72, 342 S. W. 2d 485; Ben M. Hogan Co. v. Fletcher, 236 Ark. 951, 370 S. W. 2d 801.

Affirmed.

Robinson, J., not participating.