Curry v. Ada County Highway District

BISTLINE, Justice, specially concurring. Initially I saw the opinion of the trial judge as well written and reaching what is certainly a just determination. However, a majority of the Court is quite convinced and convincing that, although an estoppel may be worked against a highway district, a critical element of estoppel is missing from the underlying set of facts giving rise to this controversy. It seems to me that if a technical application of the principle of estoppel precludes relief, the least which the Court should do, as it often does, would be to examine the record to see if the trial court decision might yet be upheld on another theory. For instance, it may be that had the Currys been given the opportunity on remand, they may have been able to establish an abandonment — which may include an estoppel with less stringent requirements. The highway district to all outward appearances had abandoned the property to which it fell heir — never using or claiming it. As a result, a house was built partly on the property, which was at the same time on platted property showing ownership in the Currys, the two plats overlapping. The element assessed in the Court’s opinion as critical to [821] an estoppel theory, but missing, is not required in abandonment. In Sharpp v. Stodghill, 191 Ark. 500, 86 S.W.2d 934, 936 (1935), the Arkansas Supreme Court, citing Thompson on Real Property, vol. 3, p. 565 for the proposition that an abandonment of real property ownership can only take place by “the act of leaving the premises vacant so that they may be appropriated by the next occupant, and the intention of not returning,” held in that case that there had been such an abandonment by the owner. Of importance to this case is that that court also declared that “the abandonment of real property does not confer title on the next occupant or any other person, but it disentitles the person who has abandoned it to reclaim it.” 86 S.W.2d at 936. That court went on to hold that abandonment, to effectively change ownership must be shown “to have been accompanied by circumstances of estoppel and limitations.” 86 S.W.2d at 935. Estoppel, of course, does have to do with leaving the property vacant so as to give the appearance of having been deserted and abandoned — thus inviting others to move on and make improvements; limitations are a consideration in passing upon the necessary elements of a claim of adverse possession which is alleged to have resulted in the creation of a new title. In Arkansas it seems then that estoppel in conjunction with nonuse apparently amounting to abandonment may disentitle the owner from reclaiming it, which seems to be this case. An earlier Arkansas case, Carmichael v. Arkansas Lumber Co., 105 Ark. 663, 152 S.W. 286 (1912), made it clear “that before the plea of laches can be available to deprive the true owner of his land, it must be shown that the party claiming the same and his grantors have, prior to the commencement of the suit, paid the taxes of the land under color of title for at least seven years, the statutory period of limitation.” 152 S.W. at 288. The Arkansas court, quoting an earlier case, Osceola Land Co. v. Henderson, 81 Ark. 432, 100 S.W. 896, 898 (1907), stated: “ ‘Mere delay does not, of itself, bar the plaintiff. Laches in legal significance is not mere delay, but delay that works a disadvantage to another. So long as the parties are in the same condition, it matters little whether one presses a right promptly or slowly within the limits allowed by law; but when, knowing his rights, he takes no steps to enforce them until the condition of the other party has in good faith so changed that he cannot be restored to his former state if the right be then enforced, delay becomes inequitable and operates as estoppel against the assertion of the right.’ ” 152 S.W. at 288 (emphasis added). Rather clearly the Arkansas court in application of its doctrine of divestiture of title by abandonment coupled with laches and limitations, has stated very nearly the rule which ought to obtain in this jurisdiction, a rule which may be applicable to the harsh facts of this case.