#### Don MINTON, Diane Minton, Steve Brown, and Brenda Brown v. CRAIGHEAD COUNTY

90-238

800 S.W.2d 707

Supreme Court of Arkansas

Opinion delivered December 17, 1990

Blackman & Nix, P.A., by. J. Robin Nix II, for appellant.

Henry, Walden & Davis, by: Mike Walden, for appellee.

David Newbern, Justice.

This is an inverse condemnation case. The appellants, Don and Diane Minton and Steve and Brenda Brown contended in the circuit court that their residential properties had been devalued because the appellee, Craighead County, had built a jail in their neighborhood. They also contended they were entitled to damages because of loss of access to their properties and the fact that they will have to live in constant fear of jail breaks. The court granted the county’s motion to dismiss for failure to state facts upon which relief could be granted. Ark. R. Civ. P. 12(b)(6). We affirm the dismissal.

In neither their complaint nor in argument made to the circuit court or here have the Mintons and Browns stated how they have been deprived of access to their properties. They do not state that the jail site is contiguous or shares a common boundary with either of them. See Earl v. Arkansas State Highway Comm., 241 Ark. 11, 405 S.W.2d 931 (1966). That leaves only the fact that a jail in the neighborhood lowers the value of their properties.

The Mintons and the Browns base their argument on Ark. Const, art. 2, § 22, which provides: “The right of property is *142before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” We have held many times that an injury such as the one alleged here does not constitute a compensable taking, appropriation or damage.

In Wenderoth v. Baker, 238 Ark. 464, 382 S.W.2d 578 (1964), we considered various arguments made by owners of property in a Fort Smith neighborhood through which land had been taken for a new interstate-type highway. The complainants’ lands had not been used directly for the highway, but they had been inconvenienced in various ways. Some contended, for example, that they were entitled to special damages because their lot, which once was bordered by level ground, was bordered by a 27-foot deep cut. We held the contention was not well taken, and explained:

> It is not enough for a landowner to show that his damage differs from that suffered by the general public. He must also show either that part of his land has been taken or that a property right has been invaded. Nichols, Eminent Domain (3d Ed.), § 14.1 It must often happen that the value of a city lot is diminished as a result of the condemnation of adjoining property for some distasteful purpose, such as the construction of a city jail. But, as the court convincingly demonstrated in City of Geary v. Moore, 181 Okla. 616, 75 P.2d 891, this is an injury “for which the law does not, and never has, afforded any relief.” [238 Ark. at 466, 382 S.W.2d at 579.]

See also Earl v. Arkansas State Highway Comm., supra; Arkansas State Highway Comm. v. McNeill, 238 Ark. 244, 381 S.W.2d 425 (1964).

Affirmed.