MACS I LLL DIV 01 QUANEX ARKANSAS OKLA GAS CLPRP Cite as 363 Ark: 22 (2005) [363 MACSTEEL DIVISION of QUANEX, Parnell Consultants, Inc , and R&R Pipeline Construction & Repair, Inc v ARKANSAS OKLAHOMA GAS CORPORATION 04-1248 210 S,W3d 878 Supreme Court of Arkansas Opinion delivered June 23,1005 STATUTES — CONSTRUCTION — STANIPARD OF REVIEW — The supreme court reviews issues of statutory construction de novo, as it is for the court to decide what a statute means, in this respect, the supreme court is not bound by the decision of the trial court, however, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal
MACSTEEL DIV OF QUANEX V. ARKANSAS OKLA GAS CORP ARK ] Cite as 363 Ark 22 (2005) STATUTES — CONSTRUCTION — BASIC RULES — The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language the court construes the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible; when the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction; when the meaning is not clear, the supreme court looks to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject, 3: STATUTES — APPELLANT'S ARGUMENT READ NONEXISTENT PROVISION INTO STATUTE — SUPREME COURT WILL NOT READ INTO STATUTE PROVISION NOT INCLUDED BY GENERAL ASSEMBLY — Appellant argued that Ark: Code Ann, C 14-16-105 (Supp, 2003), was intended to appl y only to fee-simple sales of real property and, as such, the statute did not appl y to easements because easements do not convey fee simple title to real propert y ; the supreme court disagreed, the statute makes no mention of a requirement of a fee-simple conveyance; the court will not read into a statute a provision that was not included by the General Assembly 4. STATUTES — CONSTRUCTION — ADMINISTRATIVE INTERPRETATION MAY BE HIGHLY PERSUASIVE — The manner in which a law has been interpreted by executive and administrative officers is to be given consideration and will not be disregarded unless it is clearly wrong; an administrative interpretation is to be regarded as highly persuasive; such a construction, comnionly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight; however, although an agency's interpretation is highly persuasive, where the statute is not ambiguous, the supreme court will not interpret it to mean anything other than what it says STATUTES — MNSTP ICTION — FUNDAMENTAL PRINCIPLE — The phrase expressio unius est exclusio altenus is a fiindamental principle of statutory construction that the express designation of one thing may properly be construed to mean the exclusion of another EASEMENTS — CONVEYANCE nF — PLAIN LANGUAGE OF STATUTE APPLIES TO EASEMEN T AT ISSI - It was unnecessary to consider the county's past practice in conveying easements because the plain
MAUS I LLL Div OF QUANEX V: ARKANSAS OKLA: GAS C ukp: Cite a5 363 Ark: 22 (2005) [363 language of the stature provides that 5 14-16-105 applies to the easement at issue, in that it applies to all sales and conveyances of real property belonging to the county; the type of easement at issue here, a pipeline right-of-way easement, is not exempted from the procedures of 5 14-16-105, whereas conservation easements are exempted from the procedures of the statute; clearly, if the legislature had intended to exclude easements other than conservation easements from the procedures set out in 5 14-16-105, it could have done so. 7 STATUTES — AMENDMENT TO ACT MADE AFTER FILING OF COMPLAINT — MAY BE CONSIDERED IF AMENDMENT MADE ONLY FOR CLARIFICATION — Even though an amendment was not in effect at the time the complaint was filed, the court may consider ir if the General Assembly did not change the prior law, bur merely intended to clarify it, STATUTES — CONSTRUCTION — TITLE TO ACT MAY ONLY BE EXAMINED FOP, PURPOSE OF SHEDDING LIGHT ON INTENT OF LEGISLATURE — The title of an act is not controlling in its construction, although it is considered when such meaning is otherwise in doubt; the title may only be exannned for the purpose of shedding light on the intent of the legislature. STATUTES — RELIANCE ON AMENDMENT TO ACT NOT IN EXISTENCE AT TIME COMPLAINT FILED NOT PROPER — TEXT OF AMENDMENT ACTUALLY cHANGED PRIOR LAW — Even though the title of Act 1240 is "An Act to Clarify the Procedures for Sale and Conveyance of County Property," the text of the amendment revealed that the Act was changing prior law, in that it was adding exemptions to 5 14-16-105, thus, Act 1240 was not merely remedial or procedural in nature, but created new exemptions from the procedures in 5 14-16-105 for the sale or conveyance of county property that did not exist before; one of the clear purposes of the statutory procedures for the sale of county property "was to make public all dispositions a county might make of its property", at the time of the conveyance at issue, the public had a right to be informed of the county's disposition of a pipeline right-of-way easement; the General Assembly did not except that type of easement from the procedures of 5 14-16-105 until the 2005 amendment; because the law was not changed until the 2005 amendment, the supreme court would not construe the statute to disturb the pubhc's then-existing vested right to be informed of the county's conveyance of the easement,
MACSTEEL DIV OF QUANEX V. ARKANSAS OKLA. GAS CORP ARK ] Cite as 363 Ark: 22 (2005) 10. EASEMENTS — EASEMENT WAS NOT MADE PURSUANT TO PROCEDURES OF ARK_ CODE ANN 5 14-16-105 — EASEMENT WAS NULL & VOID —When the easement in this case was conveyed, it was subject to the procedures of 5 14-16-105; since the conveyance was not made pursuant to the procedures of the statute, the easement was null and void [Ark, Code Ann: 14-16-105(f)(1)(A)]. 11: EASEMENTS — ARK, CODE ANN. 5 14-1 6-1 0 s PR rwrnED MANNER & PROCEDURE FOR CONVEYANCE OF EASEMENT — APPELLANT'S ARGUMENT WITHOUT MERIT: — Appellant cited Ark Code Ann 14-14-1102(b)(3) (Repl: 1998), in support of its argument that its easement was valid because the legislature has expressly provided county judges with the power to assign the use of county property; section 14-16-105 provides the "manner and procedure" for the conveyance of the easement in this case; section 14-14-1102(b)(3) does not allow the county judge to forego the procedures set out in 5 14-16-105; accordingly, appellant's argument regarding 5 14-14- 1102(b)(3) was without merit STATUTES — CIRCUIT COURT FOUND THAT 5 14-164-205 WAS INAPPLICABLE IN THIS CASE — NO ERROR_ FOUND — The circuit court properly determined that the record reflected no evidence that the county judge conveyed the easement pursuant to 5 14-164-205, in his deposition, the county judge made no mention of ci 14-164- 205, nor was he asked any questions about the application of that statute; moreover, there was nothing in the record to indicate that the easement was conveyed to secure or develop industry; m fact, the county judge testified that he had no knowledge as to whether the pipeline would be available for public use or whether it would be a private hne that solely served the appellant facility; thus, the circuit court did not err in finding that 5 14-164-205 was inapphcable in this case: 13 LIMITATION OF ACTIONS — CHALLENGE TO SALE OR CONVEYANCE OF REAL PROPERTY — APPELLANT'S CHALLENGE PROCEDURALLY BARRED — Appellant's challenge to the February 1993 easement was procedurally barred because a challenge to the sale or conveyance of real or personal propert y belonging to the county must be brought within two years from the date a sale is consummated; and appellant filed its counterclaim outside the two-year penod for bringing an action to cancel the sale and recover possession of the property sold, further, even if the challenge to the easement had been filed within
MALS JELL Div ui- QUANEX ARF,Ar4sAs UETA GAS CORP 16 Cite ai 363 Ark 22 (2005) [363 the two-year penod, the circuit court correctly determined that appellant could not challenge the easements granted in favor of appellee 14: DECLARATORY JUDGMENT — PURPOSE OF DECLARATORY RELIEF — PREREOUISITES FOR RELIEF — OUL declaratory Judgment act Was not intended to allow any question to be presented by any person the matters must be justiciable, since the purpose of the declaratory relief is to hquidate uncertainties and interpretations that might result in future litigation it may be maintained when these purposes may be subserved; the requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained, may be summanzed as follows: (1) there must exist a justiciable controversy, that is to say, a controversy in which a claim of nght is asserted against one who has an interest in contesting IL, (2) the controversy must be betN y een persons whose interests are adverse, (3) the party seeluug -dEdiratory rehefrnusehave a I -ekal ififaest in the controversy, in other words, a legally protectable interest, and (4) the issue involved in the controversy must be npe for judicial deternu-nation 15: DECLARATORY JUDGMENT — APPELLANT DID NOT HAVE RIGHT TO CHALLENGE VALIDITY OF APPELLEE S EASEMENTS — ACTION FOR DECLARATORY JunumENT COULD NOT BE MAINTAINED WHERE NO CONTROVERSY EXISTED — Appellant did not have the nght to challenge the validity of appellee's easements because with respect to those easements, appellant was not a party with an adverse interest; appellant argued in its answer that 5 14-16-105 was inapplicable to easements , and then argued in its counterclaim that if C 14-16-105 was applicable, it should apply to the easements granted in favor of appellee; however, a litigant is not permitted to assume wholly inconsistent positions on the same issue in the same case, here, appellant assumed wholly inconsistent positions on the issue of whether C 14-16-105 apphes to easements; further, the position appellant asserted in its counterclaim — that 14-16-105 is applicable — was the same position appellee asserted in its complaint: because the parries were in agreement on an issue, an action for declaratory judgment could not be maintained Appeal from Sebastian Circuit Court; J. Michael Fitzhugh, Judge, affirmed
MACSTEEL Div OF QUANEX v. ARKANSAS OKLA GAS CORP ARK I Cite As 3t i, 1 Ark 22 2oo5) CidTman & Phillips, by: Stephen K. Cniftnan, for appellant MacSteel: Hardin, Jesson and Terry, PLC, by . Robert M. Honea, for appellant Parnell Consultants, Inc., and R&R Pipeline Construction, Daily & Woods, PLC, by. Jerry L. Canfield, for appellee: IN4 HANNAH, Chief Justice. This is a case involving the conveyance of an easement: Appellants MacSteel, Parnell j Consultants, Inc., and R & R Repair, Inc., (collectively referred to as MacSteell appeal an order of the Sebastian County Circuit Court, Greenwood District, Division V. granting summary judgment in favor of appellee Arkansas Oklahoma Gas Corporation (AOG) and dismissing MacSteel's counterclaim: We assumed junsdiction of this case as it involves an issue of statutory interpretation. See Ark Sup. Ct R. 1-2(b)(6). Specifically, we are asked to determine whether the conve y ance of the easement at issue in this case is governed by the procedures set out in Ark: Code Ann: 5 14-16-105 (Supp 2003) We hold that § 14-16-105 is applicable to the easement in this case; accordingly, we affirm: MacSteel, a steel manufacturer with facilities located in Fort Smith Industnal Park, receives natural gas service from AOG. In early 2003, MacSteel contracted with appellant Parnell Consultants, Inc., who then contracted with appellant R&R Pipeline Construction and Repair. Inc_ to construct an underground natural gas pipeline that directly connects MacSteel's plant to sources of gas from the interstate natural gas market rather than through the facilities of AOG: As part of its contract with Mac-Steel, Parnell Consultants requested an easement from Sebastian County to install a portion of the pipeline on lands owned by the county. On June 23. 2003, the County Court of Sebastian County issued an order authorizing the grant of a pipeline easement to Parnell Consultants across property owned by Sebastian County for a consideration of $42,240: Pursuant to that order, Sebastian County Judge David Hudson executed and delivered the easement conveyance: When construction of the pipeline became public, AOG filed an action in circuit court against Parnell Consultants and R & R Pipeline Construction seeking, inter alio, a declaratory judgment that the grant of easement by the Sebastian County was null and
MACS PULL Div QUANEX P: AILKANNAS OKLA GAS CORP Cite as 363 Ark 22 (2005) [303 void pursuant to Ark. Code Ann_ 5 14-16-105(0 (1)(A) (Supp: 2003), as the Sebastian County Court admittedly did not follow the appraisal, notice, and bidding procedures required to "sell and cause to be conveyed any real estate or personal property belonging to county." MacSteel answered that 5 14-16-105 did not apply to easements: Further, MacSteel counterclaimed that if the circuit court found that C 14-16-105 applied to easements, the statute likewise should apply to easements the county court granted to AOG without complying with the statute. Both parties moved for summary judgment. For the first time, in its reply to AOG's motion for summary judgment, MacSteel contended that the conveyance was made pursuant to 5 14-164-205 (Repl: 1998), which authorizes counties to sell lands for industrial development purposes and repeals 5 14-16-105 to the extent that it is inconsistent: The circuit court granted AOG's _motion for _ summary judgmenteeing that the e -aseinent was subject to the procedures set out in 5 14-16-105 As such, the circuit court declared the easement null and void. Further, the circuit court found that the record reflected no evidence that the easement was granted by the county judge pursuant to 5 14-164-205 Finally, the circuit court dismissed MacSteel's counterclaim challenging the validity of additional easements granted to AOG. On appeal, MacSteel argues that the circuit court erred in (1) finding that the procedures of 5 14-16-105 apply CO MacSteel's easement, (2) finding that C 14-164-205 was inapplicable to its easement, and (3) dismissing its counterclaim that if 5 14-16-105 applies to easements, additional easements granted to AOG should be declared null and void. Section 14-16-105(a) (Supp. 2003) of the Arkansas Code provides= (a) The county court of each county shall have power and Juns-diction to sell and cause to be conveyed any real estate or personal property , belonging to the county and to appropriate the proceeds of the sale for the use of the county by proceeding in the manner set forth in this section ' Upon discovering the contractual relationship between Parnell Consultants and MacSteel,AOG amended its complaint to add MacSteel as a party defendant
MACSTEEL DIV OF QUANEX V ARKANSAS OKLA GAS CORP ARK] Cite as 363 Ark 22 (2005) 10 Pursuant to Ark Code Ann, 5 14-16-105(b)(1), whenever the county judge of any county shall consider it advisable and to the best interest of the county to sell and convey any real or personal propert y belonging to the county, he or she shall follow the procedures set out in 5 14-16-105(b)(1)(A) through 5 14-16- 105(e): Any sale or conveyance of real or personal property belonging to any county not made pursuant to the terms of 14-16-105 shall be null and void. See Ark. Code Ann 5 14 -16- 105(f)(1)(A) (Supp. 2003). The procedures for sale and conveyance of county property set forth in 5 14-16-105 shall not apply in these instances: (A) Where personal propert y of the county is traded in on new or used equipment and credit approximating the fair market price of such personal property is given the county toward the purchase pnce of new equipment, (B) Where the sale of the personal property of the county involves the sale by the county of any materials separated, collected, recovered, or created by a recycling program authorized and operated by the county, or (C) Where the county is conveying a conservation easement as described in 5 15-20-401 et seq. for any of the purposes enumerated in 5 15-20-401 et seq: as the same may be amended from time to time, Ark: Code Ann: 5 14-16-105(f) (2) (Supp 2003) (emphasis added): [1, 2] We review issues of statutor y construction de novo, as it is for this court to decide what a statute means. Hodqes v. Huckabee, 338 Ark_ 454, 995 S.W.2d 341 (1999): In this respect, we are not bound by the decision of the trial court, however, in the absence of a showing that the trial court erred in its interpretation The Conservation Easement Act" is codified at Ark Code Ann: 5 15-20-401 (Repl 2003) As used in the Conservation Easement Act, a conservation easement Is defined as a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations, the purposes of which include retaining or protecting natural, scenic: or open-space values of real propert y , assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality , , or preserving the historical, architectural, archeological, or cultural aspects of real property Ark Code Ann 5 15-20-402(1) (Repl 2003)
MALSI-LLL DIY OE QUANE V, ARKANSAS OKLA GAS CORP 30 Cite as 363 Ark, 22 (2005) [363 of the law, that interpretation will be accepted as correct on appeal: Ghegan & Ghegan, Inc, v. Barclay, 345 Ark_ 514, 49 S.W.3d 652 (2001): The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meamng in common language: Weiss r. McFadden, 353 Ark: 868, 120 S.W3c1545 (2003). We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible: Ozark Gas Pipeline Corp: v, Arkansas Pub, Sem Comm 'n, 342 Ark: 591, 29 S.W:3d 730 (2000). When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Weiss v. McFadden, supra, When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be aLLomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject: Id, __ [3] _ With_ this_ standard -of review in mind, we turn to MacSteel's arguments on appeal: MacSteel first argues that 5 14- 16-105 is intended to apply only to fee simple sales of real property and, as such, the statute does not apply to easements because easements do not convey fee simple title to real property. We disagree. The statute makes no mention of a requirement of a fee simple conveyance. This court will not read into a statute a provision that simply was not included by the General Assembly See, e.g., Primerica Life Ins. Co. v, Watson, 362 Ark. 54, 207 S W 3d 443 (2005), Turnbough v. Mammoth Spring Sch. Dist. No. 2, 349 Ark 341, 78 S.W.3d 89 (2002): [4] MacSteel next contends that we should follow the county judge's interpretation of the law in determining whether 5 14-16-105 applies to easements In his deposition, Judge Hudson testified that during his twenty-eight years of employment in county government, both as a county judge and as an administrative assistant to previous county judges, Sebastian County never followed the procedures in 5 14-16-105 when granting easements over county lands. In Omega Tube & Conduit Corp, v. Maples, 312 Ark: 489, 850 S.W.2d 317 (1993), we noted that it is a familiar rule of statutory construction that the manner in which a law has been interpreted by executive and administrative officers is to be given consideration and will not be disregarded unless it is clearly wrong: We further noted that an administrative interpretation is to be regarded as highly persuasive Id "Such a construction, commonly
MACSTEEL Dv op QUANEX I' ARKANSAS OKLA, GAS CORP, ARK] Cite as 363 Ark 22 (2005) 31 referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight" Walnut Grove Sch. Dist. No, 6 v: County Bd. of Educ,, 204 Ark. 354, 359, 162 S.W:2d 64. 66 (1942) (quoting Crawford's Interpretation of Laws 5 219 (1940)): However, although an agency's interpretation is highly persuasive, where the statute is not ambiguous, we will not interpret it to mean anything other than what it says: Yamaha Motor Corp, U.S.A. P. Richard's Honda Yamaha, 344 Ark. 44, 52, 38 S W:3d 356. 360 (2001): [5, 6] AOG contends that it is unnecessary to consider the county's past practice in conveying easements because the plain language of the statute provides that 5 14-16-105 applies to the easement at issue, in that it applies to all sales and conveyances of real property belonging to the county: AOG points out that the type of easement at issue in this case, a pipeline right-of-way easement, is not exempted from the procedures of 5 14-16-105, whereas conservation easements are exempted from the procedures of the statute: We agree: The phrase expressio unius est exclusio alterius is a fundamental principle of statutory construction that the express designation of one thing may properly be construed to mean the exclusion of another: Gazaway Greene County Equalization Bd., 314 Ark: 569, 575, 864 S.W:2d 233, 236 (1903) Clearl y , if the legislature had intended to exclude easements other than conservation easements from the procedures set out in 5 14-16-105, it could have done so: Still, MacSteel maintains that in light of the 2005 amendment to 5 14-16-105, it is clear that the General Assembly intended to exempt conveyances of all easements from the statute. Subsequent to MacSteel's filing of this appeal. the General Assembly enacted Act 1240 of 2005. which made changes to Ark: Code Ann 5 14-16-105(fy) The amended statute, in pertinent part, provides that the procedures set forth in § 14-16-105 shall not apply. After this ca3e was submitted to this co urt, MacSteel filed a Motion for Court to Take Judicial Nonce of Recen t Legislative Enactment, requesting that this court take iudicial notice of Act 1240 of 2005 AUG had no ob i ection This court takes judicial notice of legislative journals showing that a particular provision of the statute was added by amendment Colmar r Ricks, 213 Ark 768,212 S W2d 552 (10 48) See Ail Carte, Redmey, 232 Ark 211, 115 S W 2d 2 q 8 (1%0) Here, we na take judicial notice of the enactment ot Act 1 7l0 (117005 so !hat wc Inav adihiss Mac sderri awn-nrnt
MACSTEEL DIV OF QUANEX V. ARKANSAS OKLA GAS CORP Cite as 3h3 Ark 22 (2005) [363 (f)(2)(C) When the county is conveying an easement, including, but not limited to, easements granted upon county lands for water improvements, sewer improvements, gas lines, electric lines, phone lines, utilities, railways, public roads, highways, and conservation easements as described in 5 15-20-401 et seq. for any of the purposes enumerated in 5 15-20-401 et seq as the same may be amended from time to time, [7, 8] Even though the amendment was not in effect at the time the complaint was filed, we may consider it if the General Assembly did not change the prior law, but merely intended to clarify it: See Baker Refrigeration Sys , Inc v Weiss, 360 Ark: 388, 201 S.W.3d 900 (2005); Pledger v Baldor Int'l, Inc:, 309 Ark, 30, 827 S:W 2c1646 (1992). The title of Act 1240 is "An Act to ClarifY the Procedures for Sale and Conveyance of County Property:" This court has long held that the title of an act is not controlling in its construction, although it is considered when such meaning is otherwise in doubt: Baker, supra, The title may only be examined for the purpose of shedding light on the intent of the legislature: Id. [9] The problem with looking to the title of Act 1240 to determine legislative intent is that even though the Act is characterized as an act to "clarify" the procedures for sale and conveyance of county property, the text of the amendment reveals that the Act is changing prior law, in that it is adding exemptions to 5 14-16-105: In Gannett River States Publishing Go: v: Arkansas Industrial Development Commission, 303 Ark: 684, 799 S.W.2d 543 (1990), where the language of an amendment to the Arkansas Freedom of Information Act was not curative or for clarification, but rather, made seven additional types of records exempt from disclosure, we held that the amendment did not apply retroactively: We explained-Act 8 was not merely remedial or procedural in nature, but created new exemptions from public disclosure which did not exist before. Statutes which are remedial or procedural generally supply new, different, or more appropriate remedies which relate to existing rights, and do not create new rights or extinguish old ones See Harrison v. Matthews, 235 Ark: 915, 362 S.W 2d 704 (1 962), and Gillioz v. Kincarmon, 231 Ark: 1010, 214 S.W.2d 212 (1948) Gannett, 303 Ark: at 689, 799 S.W.2d at 546.
MAI— STEEL Div OF QUANEX v. ARKANSAS OKLA, GAS CORP ARK ] Cite 363 Ark 22 (2005) 33 [10] Likewise, in the instant case, Act 1240 is not merely remedial or procedural in nature, but creates new exemptions from the procedures in 14-16-105 for the sale or conveyance of county property that did not exist before: This court has recognized that one of the clear purposes of the statutory procedures for the sale of count y property "was to make public all dispositions a county might make of its property:" State V. Eason, 219 Ark. 36, 42, 240 S.W.2d 36, 40 (1951) (emphasis in original), At the time of the conveyance at issue, the public had a right to be informed of Sebastian County's disposition of a pipeline right-of-way ease-ment, The General Assembl y did not except that type of easement from the procedures of 5 14-16-105 until the 2005 amendment: Because the law was not changed until the 2005 amendment, we will not construe the statute to disturb the public's then-existing vested right to be informed of the county's conveyance of the easement: In sum, we hold that when the easement in this case was conveyed, it was subject to the procedures of § 14-16-105: Since the conveyance was not made pursuant to the procedures of the statute, the easement at issue is null and void, Ark: Code Ann. 5 14-16-105(f)(1)(A): We also note that MacSteel cites Ark: Code Ann. $ 14-14- 1102(b)(3) (Repl: 1998), in support of its argument that its easement is valid because the legislature has expressly provided county judges with the power to assign the use of county property. Section 14-14-1102(b)(3) provides= CUSTODY OF COUNTY PROPERTY: The county judge, as the chief executive officer of the county, shall have custody of county propert y and shall be responsible for the administration, care, and keeping of such county property, including the right to dispose of county property in the manner and procedure provided by law for the disposal of county property by the county court. The county judge shall have the right to assign or not assign use of such property whether or not the county property was purchased with county funds or was acquired through donations, gitts, grants, confiscation, or condemnation (Emphasis added ) [11] As previously discussed, 5 14-16-105 provides the "manner and procedure" for the conveyance of the easement in this caw Scction 11 14 110Nb)(3) does not allow the county
MACS IILL Div UI QUANEX1 ARKANSAS OKLA, GAS CuRP
34 Cite as 363 Arle 22 (2005) [363 judge to forego the procedures set out in 5 14-16-105 Accordingly, MacSteel's argument regarding 5 14-14-1102(b)(3) is without merit. MacSteel next argues that even if 14-16-105 applies to this case, its easement is valid because 5 14-164-205 authorizes counties to sell lands for industrial development purposes and repeals N 14-16-105 to the extent that it is inconsistent: Section 14-164- 205 provides: Any municipality or any county is authorized to own, acquire, construct, reconstruct, extend, equip, improve, operate, maintain, sell, lease, or contract concerning, or otherwise deal in or dispose of, any land, buildings, or facilities of any and every nature whatever that can be used in securing or developing industry within or near the mumcipahty or county [12] The circuit court determined that the record reflected n6 evidence that tlfe c6tility judge oinveyed the easement pursuant to § 14-164-205 The circuit court is correct In his deposition, Judge Hudson makes no mention of 5 14-164-205, nor is he asked any questions about the application of that statute Moreover, there is nothing in the record to indicate that the easement was conveyed to secure or develop industry In fact, Judge Hudson testified in his deposition that he had no knowledge as to whether the pipeline would be available for public use or whether it would be a private line that solely serves the MacSteel facility. We hold that the circuit court did not err in finding that 5 14-164-205 was inapplicable in this case Finally, MacSteel argues that if 5 14-16-105 applies to easements, then the circuit court erred in failing to find AOG's easements to be void as well. In its counterclaim, MacSteel contended that two easements granted in favor of AUG were invalid: an easement executed in June 2002, and an easement executed in February 1993. The circuit court held that MacSteel had no standing to challenge the validity of the easements that were granted to AUG [13] We first note that MacSteel's challenge to the Febru-ary 1993 easement is procedurally barred_ A challenge to the sale or conveyance of real or personal property belonging to the county must be brought within two years from the date a sale is consummated See Ark Code Ann_ 5 14-16-105(0(1)(A) (Supp. 2003).
MACSTEEL DIV OF QUANEX V, AR_KANSAS OKLA: GAS CORP ARK] Cite as 363 Ark: 22 (2005) 35 MacSteel tiled its counterclaim on February 4, 2004, which is clearly outside the two-year period for bringing an action to cancel the sale and recover possession of the property sold Further, even if the challenge to the easement executed in February 1993 was filed within the two-year period, as was the case with the challenge to the easement executed in June 2002, the circuit court correctly determined that MacSteel could not challenge the easements granted in favor of AOG. [14] Still, MacSteel contends that pursuant to our holding in Andres v. First Arkansas Development Finance Corp , 230 Ark 594, 324 S,W.2d 97 (1 05 0 ), it had a right to challenge the vandity of AOG's easements because there is a justiciable controversy. We disagree: In Andres, this court stated, "Our declaratory judgment act „ was not intended to allow any question to be presented by any person: the matters must be justiciable 230 Ark, at 1,06, 324 S:W:2d at 104 (emphasis in original). Further, we stated: Since [the] the purpose of the declaratory relief is to liquidate uncertainties and interpretations which might result in future litigation it may be maintained when these purposes may be sub-served. The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained, may be summarized as follows: (1) There must exist a justiciable controversy, that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be npe for Judicial determination Id , 324 S W 2d at 104 (quoting Anderson, Declaratory Judgments. $ 187 (2d ed 1951)). [15] In the instant case, MacSteel does not have the right to challenge the validity of AOG's easements because with respect to those easements, MacSteel is not a party with an adverse interest To maintain a declaratory-judgment action, there must be a justiciable controversy between persons whose i nterests are adverse. See Andres, supra_ Here, MacSteel argues in its answer that 5 14-16-105 is inapplicable to easements, and then argues in its counterclaim that if 5 14-16-105 is applicable, it should apply to
36 [363 the easements granted in favor of AOG: A litigant is not permitted to assume wholly inconsistent positions on the same issue in the same case: International Harvester Go: v, Burks Motors, Inc., 252 Ark. 816, 481 S:W:2d 351 (1972), Randolph v, Kelly, 144 Ark. 296, 222 S:W: 42 (1920): In this case, MacSteel assumes wholly inconsistent positions on the issue of whether 5 14-16-105 applies to ease-ments: Further, the position MacSteel asserts in its counterclaim — that C 14-16-105 is applicable — is the same position AOG asserts in its complaint: Where the parties are in agreement on an issue, an action for declaratory judgment may not be maintained because there is no controversy between persons whose interests are adverse: Affirmed:
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.