#### Leon FLAKE et al v. ARKANSAS STATE HIGHWAY COMM’N

5-5782

476 S.W. 2d 801

Opinion delivered February 28, 1972

Thomas J. Bonner, for appellants.

Thomas B. Keys and George O. Green, for appellees.

Lyle Brown, Justice.

Appellants are property owners at the northeast corner of Markham and Scott Streets in Little Rock. They brought this suit to enjoin appellee commission. The property would be affected by the proposed construction of an elevated bridge ramp in Scott Street adjacent to appellants’ lands. The ramp would connect with a bridge across the Arkansas River. Appellants asked that the commission “be enjoined from commencing or proceeding with the proposed construction” until the landowners’ damages were paid or provision for payment made. The chancellor sustained the commission’s demurrer on the ground that the suit was one against the State.

First, the demurrer of course admitted the truth of the pleadings. It was alleged that the construction will cause a change in the existing street grade, eliminate appellants’ access from Scott Street, and will close Bridge Street which serves the north part of the land. There would be no partial taking of the landowners’ fee estate but they assert that their existing easements of access in *1085and to the abutting streets would be destroyed. It is also alleged that the ramp would constitute a private nuisance as opposed to the public in general. As we interpret the complaint and the amendment thereto the landowners sought to enjoin work contemplated to be done in contrast to work already in process. The amendment to the complaint asked that the commission be enjoined “from commencement or proceeding with the proposed construction” until the landowners’ damages had been secured.

The exact question before us was decided in Arkansas State Highway Comm’n v. Partain, 192 Ark. 127, 90 S. W. 2d 968 (1936). The law there pronounced has subsequently been followed in Bryant v. Arkansas State Highway Comm’n, 233 Ark. 41, 342 S. W. 2d 415 (1961). In Partain, the commission contemplated building an overpass in proximity to Partain’s home; Partain alleged that the construction would destroy the value of his property and without compensation being offered. The chancellor enjoined the commission from proceeding with plans until an amount of money sufficient to cover the damages had been deposited in court. We affirmed.

In view of the specific allegations recited the trial court should have overruled the demurrer.

Reversed.