The city takes property for a bike trail. It deposited estimated compensation in court, and sought and obtained immediate possession. The owner disputed whether the city had the power to take his land, but the trial court rejected these arguments. The owner filed an interlocutory appeal on the public use and necessity issues. The city moved to dismiss for lack of appellate jurisdiction: the valuation phase of the trial was not finished, so there was no final judgment and it was too early to appeal.
The Arkansas Supreme Court agreed. Thomas v. City of Fayetteville, No. 11-930 (Mar. 15, 2012). Because the issue of compensation remained for the trial court to determine, the judgment allowing the taking was not final. Piecemeal appeals are generally not favored, and the court refused to adopt the property owner’s call for an exception because disallowing the appeal would “divest him of a substantial right in such a manner as to put it beyond the power of the court to place him in his former condition.” Slip op. at 5. In other words, allowing the city to take and modify the property does not mean that the city could not restore the land if the owner ultimately wins on the public use issue.
Further, the City has not conceded that commencing construction would render it impossible to restore Thomas’s property to its previous condition, and Thomas has not presented any evidence that would prove such an effect.
Slip op. at 5. Appeal dismissed without prejudice.
The result would have been different in those jurisdictions such as Hawaii, which allows immediate interlocutory appeal of public use and other power-to-take issues as a matter of statute, and in other jursdictions by judicial decision (see, e.g., this recent case from the North Carolina Court of Appeals, holding that the power to take affects a “substantial right” and is immediately appealable).
Thomas v City of Fayetteville, No. 11-930 (Mar. 15, 2012)