Bob J. Walker and Claudia G. Walker v. Community Water System, Inc.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION I

BOB J. WALKER and CLAUDIA G. WALKER

APPELLANTS

V.

COMMUNITY WATER SYSTEM, INC.

APPELLEE

CA03-199

June 4, 2003

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[NO. CV 2002-292]

HON. CHARLES E. CLAWSON,

JUDGE

DISMISSED

Appellee, Community Water System, Inc., initiated this suit in circuit court seeking a waterline easement over the private property of appellants. Appellants contested appellee's need of their property, filed a motion to transfer that issue to equity, and moved the court to strike its ex parte order of immediate possession. The trial court entered an order finding that the taking of the property by appellee for a waterline easement was necessary and for the public good, and the trial court lifted its interim order staying the order of immediate possession. Appellants argue on appeal that the trial court clearly erred in denying appellants' challenge to appellee's absolute need to take their property for public purpose and that the court clearly erred in granting appellee an immediate order of possession of land sought to be condemned. We hold that the order of the trial court is not a final and appealable order and dismiss the appeal.

It is well established that before a judgment is final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter that is in controversy. Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982). Even though the parties do not raise the issue of the existence of a final order, it is a jurisdictional question that the appellate court has the right and duty to raise in order to avoid piecemeal litigation. Id.

The order of the trial court herein decided the issue of whether appellee could rightfully exercise eminent domain to effect a waterline easement on appellants' property, but the court has not yet addressed the issues of the landowners' right to just compensation and the amount of damages. An appeal at this point constitutes piecemeal litigation. See id. The order did not conclude the parties' rights to the subject matter in controversy and is therefore not a final and appealable order.

Dismissed.

Robbins and Neal, JJ., agree.