text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Robert M. PERRYMAN and Lucille E. Perryman, his wife
    5-4960
    444 S. W. 2d 564
    Opinion delivered September 15, 1969

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      Mobley, Bullock & Harris, for appellees.
   John A. Fogleman, Justice.

The judgment appealed was a jury award to appellees in an eminent domain proceeding. Appellant contends that the verdict for $26,000 was not supported by substantial evidence. We agree and remand the case for a new trial.

Appellees presented four witnesses on the question of just compensation. They were appellee Robert M. Perryman, Jackson Ross, Merle Lemley and Jim Pledger.

The lands involved were taken for construction and relocation of approaches to the New Dardanelle Bridge and highway facilities. The lands actually taken consisted of 520 square feet with a depth of approximately nine and one-half feet. The tract from which they were taken consisted of 5,940 square feet with a frontage of 54 feet on Highway No. 7. There was a building on the property used by appellees for the operation of the White Castle Restaurant in Dardanelle. The property was zoned commercial, and the zoning ordinances prohibited the construction of any building closer than 50 feet to a highway right-of-way line. The right-of-way line after the taking came within 52 inches of the entrance to the building. It was admitted by one of the appellant’s value ivitnesses that the right-of-way line came within inches of the front stoop of the building. There seems to be little question that the construction plans provided for a sidewalk with a curb in front of the building. This sidewalk and curb will be on the highway right-of-way and will be within 10 feet of the right-of-way line nearest the building. The sidewalk will be five feet from the building. One of the state’s value experts testified that the building was on .a concrete slab and could not be moved. All of the witnesses agreed that it was no longer suitable for use as a cafe because of the lack of room for parking in front.

Robert M. Perryman testified that the property was worth $45,000 before the taking and the value of the remainder was $3,000, leaving a difference of $42,-000. He said that the figures he gave were what the property was worth to him. His testimony cannot be considered as substantial because compensation cannot be based on value to the owner. Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792; Desha v. Independence County Bridge District No. 1, 176 Ark. 253, 3 S. W. 2d 969. See also Arkansas State Highway Commission v. Darr, 246 Ark. 204, 437 S. W. 2d 463.

Jackson Ross used the market value approach in making the appraisal of the property. He valued the Perryman tract at $250 per front foot. He referred to two sales of property that he used as a basis for his opinion. He related that the sale of a corner lot three years earlier was sold for $139 per front foot. He also referred to the sale of another corner lot having dimensions of 115 feet by 110 feet which sold for $15,000' two years earlier. He admitted that the latter tract was “possibly a little better” for commercial purposes than the subject property and that a corner lot was always preferable. His only explanations of the differences producing the substantially higher front foot and square foot value were that, due to a greater demand, there was an advance in the real estate market in the period intervening between the sales and the taking of appellees’ property and that the property damaged was in a better location due to a greater volume of passing traffic. He did not attempt to explain or exemplify the extent of the price increase or its effect on the Perryman property nor did he state the relative traffic volumes and the degree of the effect of that factor. Although he testified about the replacement cost of the building, he did not know what kind of roof it had and seemed uncertain about the composition of the exterior and interior walls. He valued the property remaining after the taking at only $500, stating that he did not believe there was any market for the property. The principal basis for this opinion was his understanding that one stepping out the door was stepping onto the highway. Although he had looked at the construction plans, he seemed to be unfamiliar with t he location of a sidewalk and curb shown thereon relative to the building. He did not know where the pavement would be. His knowledge of this factor did not afford sufficient basis for a statement that the building on the property was rendered completely worthless and that the remaining lot was reduced in vaiue from $13,500 to $500.

Merle Lemley based his value opinions only on his everyday experience of one and one-half years as a real estate broker. While he found the building valueless after the taking, he never saw the right-of-way map,, or the plans and specifications for construction, and did not know that appellant was to construct a sidewalk and curb in front of the building. When asked what particular experience he was using as a basis for his lot valuation, he answered:

“I am not making reference to any particular experience. I do this every day, all day long; and I am applying my overall experience and background.”

He stated that he did not believe that one could draw comparisons of real estate sales in condemnation proceedings, but thought that true market value depended upon what the buyer and seller think. This lack of foundation for the opinion of this witness was demonstrated on cross-examination.

Jim Pledger placed a “before taking” value of $245 per front foot on the property. Apparently he based his value, in substantial part, on some of the same sales referred to by Jackson Ross. He did not give a satisfactory explanation on cross-examination for the fact that he placed a very much higher value on the subject property than was realized on any sale to which he referred. He even stated that one of these was not a comparable sale. While he stated that property values had changed during the years intervening between the sales referred to and the taking of the property, he .also failed to give any measure of this change or its resulting effect on the property involved. He was not familiar with any sales in Dardanelle during the year 1966.

In deciding the question of law whether the verdict is supported by substantial evidence we must evaluate the opinions of the witnesses for appellees in relation to the bases upon which they are founded. Arkansas State Highway Commission v. Snowden, 233 Ark. 565, 345 S. W. 2d 917. When we do so, we cannot say that they constitute substantial evidence supporting the jury verdict.

Motions were made to strike the value testimony of all the witnesses for appellees, except that of Perryman. In view of the disposition we make of this case, we find it unnecessary to discuss the overruling of these motions at length. The fact that Ross g.ave a front-foot basis for the land value would not subject his testimony to being stricken as contended by appellant, nor would all of his testimony with reference to replacement cost of the building. We do not agree with appellant that Ross gave replacement cost without consideration of the age of the building. The testimony of Lemley as to reproduction cost also made what he deemed an appropriate depredation, on the building- and Avas not shown to be Avitliout substantial basis. Appellant did not roly on the overruling of its motion to strike the testimony of Jim Pledger.

"We cannot say Avith any degree of certainty Avhat amount should constitute, a maximum recovery in this case. There is little doubt that Boss and Pledger have the qualifications-required of value experts. Boss’s testimony shoAved a damage to the building- in the amount of $15,200. Pledger’s opinion Avas that this damage amounted to $18,154, while Lemley placed this figure at $21,600. On- the other hand, appellant’s AAÚtnesses, Avhose qualifications are beyond question, placed, this element of damage at $7,775 and $6,500. The differences lie both in “before” and “after” values of the various Avitnesses. Since we could only speculate in attempting to arrive at a remittitur Avhich would clearly provide just compensation to the landowner and, if we did so, could not be assured that the recovery allowed was not too high, we reverse and remand for a neAV trial. See Arkansas State Highway Commission v. Darr, 246 Ark. 204, 437 S. W. 2d 463.

      This is not a situation in which the property has a Value peculiar to the particular owner which would not accrue to others who might acquire it.


source: Caselaw Access Project

author: John A.-Fogleman, Justice.

license: Public Domain

text:
    DURA CRAFT BOATS, INC. et al v. George A. DAUGHERTY
    5-4972
    444 S. W. 2d 562
    Opinion delivered September 15, 1969

      Riddick Riff el, for appellants.

      Clifton Bond, for appellee.
   John A.-Fogleman, Justice.

Dura Craft Boats, Inc., as employer, and Employers Insurance of Wausau, as carrier, bring this appeal from an order of the circuit court holding that a workmen’s compensation claim of appellee, as employee, was not barred by the statute of limitations. Appellants assert that the claim was barred by Ark. Stat. Ann. § 81-1318 (b) (Repl. 1960). Appellants also seek reversal of that part of the judgment of the trial court awarding claimant compensation for permanent partial disability. We find that the circuit court was correct in reversing the order of the Workmen’s Compensation Commission holding that the claim was -barred but in error in undertaking to award compensation to the claimant.

Daugherty sustained a compensable injury on April 6, 1963. He was paid temporary total disability benefits for a period of thirteen weeks and two days. The last payment of compensation was in September of 1963. Thereafter the claimant retained the services of James A. Boss as his attorney. Mr. Boss filed a claim in his behalf on December 8, 1964. The exact nature of this claim is not disclosed by the record before us. On January 11, 1965, Daugherty’s attorney and the carrier were advised by the Secretary of the Commission that the claim was being placed upon the “hold” docket and that the commission would not take any further action in regard thereto unless requested by one or both of the interested parties.

On October 21, 1965, Mr. Boss addressed the following letter to the claims manager of the carrier:

“I have lost all contact with Mr. Daugherty, and I will ask to be relieved as attorney of record.”

On October 24, 1965, the claims manager of the carrier requested the commission to dismiss the claim for lack of prosecution. On October 26, 1965, the commission entered an order dismissing the claim for lack of prosecution. This order recited the receipt of the claim on December 8,1964, and the lack of action by the claimant thereafter to prosecute his claim. A letter was addressed by the Secretary of the Commission to the claims manager of the carrier and to the attorney for the claimant on October 26, 1965. The record reflects the receipt of this letter and copy of the order of dismissal by both Boss and the carrier’s claims manager on the following day.

On December 7, 1966, a claim for permanent partial disability was filed by Mr. Clifton Bond on behalf of the claimant. Mr. Bond had been employed by the claimant at some time in 1966.

At a hearing before the Workmen’s Compensation Commission, appellee contended that the order of dismissal was void on the ground that the olaimant did not have notice and w.as, therefore, denied due process. The commission held that the statute of limitations had run on the claim filed in December 1966. Daugherty then appealed to the Circuit Court of Drew County. On this appeal, the judgment now before us was entered.

Appellant contends that the order of dismissal was valid and properly served. In support of his position that the order of dismissal was void, the appellee urges that Ark. Stat. Ann. § 29-107 (Repl. 1962) be applied. We agree with the appellant that this section, relied upon by the trial court, is not applicable to an order of the Workmen’s Compensation Commission. This section by its own language applied only to judgments and orders of the courts of this state.

The Workmen’s Compensation Commission is not bound by technical or formal rules of procedure. Ark. Stat. Ann. § 81-1327 (Repl. 1960). The commission is specifically authorized to make such rules and regulations as may be found necessary for the purpose of administering the provisions of the act. Ark. Stat. Ann. § 81-1342 (f) (Repl. 1960). The third paragraph óf Rule 13 of the Commission reads:

‘ ‘ Upon meritorious application to the Commission from either party in an action pending before said Commission, requesting that said claim be dismissed for want of prosecution, the Commission may, upon reasonable notice to all parties thereto enter an order dismissing said claim for want of prosecution.”

Clearly this procedural rule requires reasonable notice to the claimant before his claim is dismissed for want of prosecution. The obvious purpose of this notice is to permit the claimant to resist the dismissal and to show, if he can do so, that the application for dismissal is without merit. No such notice was given or attempted. The rule can only be designed to permit the commission to see that the rights of the claimant are not prejudiced. We can hardly conceive of an employer or carrier being prejudiced by a claimant’s dismissal of his claim. Notice after dismissal would not afford the protection provided.

We have held that a party to an action who was not served with process thereon and who was not in fact aware of a cross complaint against him was entitled to have a decree thereon vacated. Taylor v. Harris, 186 Ark. 580, 54 S. W. 2d 701; Woods v. Quarels, 178 Ark. 1158, 13 S. W. 2d 617. Although the copy of the letter transmitting the order of dismissal indicated that a carbon copy was addressed to Daugherty on Route 5, Monticello, Arkansas, Daugherty denied ever having received it. There is no receipt for registered or certified mail signed by him, and he testified that he had moved to Route 2, Monticello. The Workmen’s Compensation Commission made no finding that Daugherty received this letter. In view of this testimony and the fact that Ross had lost contact with him, it could hardly be said that Daugherty had actual notice of the dismissal or request therefor. He flatly denies that he did. There is no evidence of any effort to give notice to him or his attorney prior to the entry of the order. According to Daugherty, Ross talked to him about getting another attorney sometime during the political campaigns of 1966. It was not shown that anything was said about the order of dismissal. Daugherty’s testimony is the only testimony offered on this subject. Under these circumstances, we think the finding of the trial judge, that the order of dismissal was void, is correct.

It was clearly beyond the powers of the circuit court to make a finding as to the extent of appellee’s permanent disability, since this issue depends upon findings of fact by the Workmen’s Compensation Commission which it has not made. The only power of the circuit court in this situation was to remand the case to the Workmen’s Compensation Commission. Long-Bell Lumber Company v. Mitchell, 206 Ark. 854, 177 S. W. 2d 920.

We are unable to ascertain from the record before us the nature of the claim pending before the commission at the time of the entry of the order of dismissal. Consequently, we can only remand this case to the circuit court with directions that it be remanded to the Workmen’s Compensation Commission for further proceedings not inconsistent with this opinion.

       It is conceded that there is no indication or evidence that Ross ever made such a request of the commission. (Footnote ours.)


author: Conley Byrd, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Vondon DIXON et al
    5-4914
    444 S. W. 2d 571
    Opinion delivered September 15, 1969

      Thomas B. Keys and James N. Dowell, for appellant.

      Felver A. Rowell, Jr., for appellees.
   Conley Byrd, Justice.

Appellant Arkansas State Highway Commission on Aug. 3, 1967, filed its complaint and declaration of taking for 12.66 acres out of a 200 acre tract owned by appellees Vondon Dixon and Ruby Lee Dixon, his wife. The estimated just compensation was $4,500. The taking left 9.55 acres south of the interstate highway and 177 acres on the north. The Highway Commission appeals from a jury verdict of $12,000 and for reversal contends:

I. The trial court erred in permitting testimony calling for special knowledge or skill to be given by non-experts.
II. The court erred in not striking testimony of Appellee’s witnesses basing opinion evidence as to value upon speculative elements.
III. The trial court erred in permitting testimony of special damages which had not been plead.
IV. There was no substantial evidence to support the verdict.

Mr. Frank Fougerousse, Jr., a witness on behalf of the Dixons, testified that he had lived near the property since 1937 and now farmed adjoining lands. He testified that prior to Aug. 3, 1967, the lands drained well but after construction of Interstate 40 a drainage problem existed because the Highway Department had attempted to drain the lands from east to west whereas they originally drained toward the east. He stated that this will create a condition where one cannot work the land when it is wet and that the wetness will smother out and scald the crops, once the crops are up. He based his statements upon his knowledge of the land and his knowledge of farming.

Mr. Audie Stobaugh, a farmer, testified that he was familiar with the land prior to Aug. 3, 1967, and that it was all cleared. Drainage before the taking was from the south and toward the east and the Highway Department was attempting to drain the water back to the west and from the naked eye it looked like it was uphill. He discussed comparable sales in the vicinity and arrived at a value of $400.00 per acre before the taking. He placed little or no value on the 10 acres south of the interstate because of its inaccessibility and damaged the 177 acres north of the interstate at $50.00 per acre.

Mr. A. J. Gordon, president of the board of Central Arkansas Production Credit Association, testified that he was farming 2,000 acres per year and that he had personal knowledge of the Vondon Dixon property and had for about 20 years. He had viewed the property after the construction .and after a 2% inch rain that occurred a week or week and a half before the trial. Mr. Gordon placed .a value of $400.00 per acre on the land before the taking based upon the 80 acres McKinnon bought from Ward Jackson. He placed a value of $350.00 per acre on the north 177 acres after the taking because of the drainage problem he observed, and a $50.00 per acre value on the 10 acres south of the interstate, because of its inaccessibility.

Mr. Forrest Griswood qualified as an export on valuations. He appraised the lands at $60,000.00 before the taking and $49,268.50 after the taking, for a total damage of $10,731.50. He states that he deducted $25.00 per acre on the 177 acres north of the interstate because of the drainage problem which he had viewed.

Mr. Vondon Dixon stated that he had no problem with drainage on the farm lands prior to Aug. 3, 1967. Since Aug. 3, the drainage had been considerably changed, in that the State Highway Department had put in a drainage ditch north of the farm access road trying to drain the water from the 200 .acres which naturally drained east. That the Highway Department was trying to drain the water back west which it was unable to do because of a rise in the soil from the eastern corner going west. He placed a valuation of $400.00 per acre on the tract before the taking and arrived at an after valuation of $53,622.00 for a total damage of $26,378.00. In arriving at his damages he depreciated the 177 acres on the north $100.00 per acre and the 10 acres on the south by $350.00 per acre.

Mr. Kerry Caviness, a registered professional engi neer in the employ of the Highway Department, testified that the interstate was constructed according to plans at the time of filing the action and that the drainage ,as provided for in the construction plans would not properly drain the area. He stated that the drainage problem was an oversight rather than an error and came about because of a mistake with reference to the contour of the land. He had known about the oversight for .a month or more before trial. He stated that the Highway Department had put in some drainage tile on Saturday before the trial on Monday which, together with a ditch that was to be dug, would solve the drainage problem. According to him, no change order was necessary to do the small amount of work involved.

Mr. W. E. Hayes and Mr. Zack Mashburn were called as expert witnesses on valuation for the Highway Department. Mr. Hayes arrived at a before value of $60,000.00 for the 200 acres and an after value of $55,-500.00, for a total damage of $4,500.00. Mr. Zack Mash-burn gave a before value of $55,000.00 based on a $275.00 per acre valuation and an after value of $50,300.00, for a total damage of $4,700.00. Both witnesses with commendable candor admitted that their valuations were based upon assumptions that drainage would be equally as good after as before.

Point I. Appellant argues upon the authority of Kansas City, Ft. Scott & Memphis Railroad Co. v. Cook, 57 Ark. 387, 21 S. W. 1066 (1893), and St. Louis, Iron Mt. & Southern Railway Co. v. Lyman, 57 Ark. 512, 22 S. W. 170 (1893), that it was error for appellees and their witnesses to be permitted to give an opinion about the drainage problem. We find appellant’s contention to be without merit because in this instance the witnesses testified to “matters determinable by conditions they had seen and described.” Such information does not call for special knowledge or skill and does not constitute opinion evidence.

Point II. Appellant argues that the testimony of appellees’ witnesses with reference to damages caused by the drainage problem ivas upon an improper basis —i. e., the damages were speculative because based upon matters that would occur in the future or that came into existence because of faulty construction after the filing of the complaint. In this connection it cites 4 Nichols on Eminent Domain, § 14.245(1), where it is said: “If the damage for which recovery is sought is the result of improper, unlawful or negligent construction or maintenance recovery may not be had therefor in the proceeding; the owner is relegated in such case to common law action for damages.”-

Neither the record nor appellant’s own witness sustains its position here. The record shows that the highway was in place at the time of trial and appellant’s registered professional engineer testified that it had been constructed according to the plans and specifications in existence on the date of taking. Certainly the drainage or impairment of drainage to land is a matter that a willing buyer and a willing seller would consider, and under our decision in L. R. Junction Ry. v. Woodruff, 49 Ark. 381 (1887), this would constitute an element of compensation due in an eminent domain action.

Point III. In contending that the trial court erred in permitting testimony relative to special damages which had not been pleaded, the Highway Department again relies upon the proposition that the proof was based upon damage that will occur in the future or that came into existence after the filing of the complaint in condemnation. Here again we can find no error. The requirement for pleading of special damages is to prevent surprises. In this instance the Highway Department claimed no surprise nor asked for' a continuance. The record shows that the Highway Department had known about the drainage problems for more than a month and that it had its registered professional engineer standing by to testify.

Point IV. Contrary to appellant’s contention, Ave find there was substantial evidence to support the verdict. Actually appellant’s argument is here based upon the proposition that the poor drainage was not a permanent condition. In this we point out that the landOAvner was entitled to rely upon the fact that the highway was constructed in accordance with the plans and specifications on file and that until such time as the Highway Department moved to amend the plans and specifications the trial court did not commit error in permitting the witnesses to testify to the damages that arose as a result thereof.

Affirmed.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    Ruth WILLIAMS et al v. Kathleen NASH, Adm’x
    5-4921
    445 S. W. 2d 69
    Opinion delivered September 15, 1969
    [Rehearing denied October 27, 1969]

      John F. Gibson, for appellants.

      Crumpler, O’Connor, Wynne & Mays and Mahony & Yocum,, for appellee.
   Frank Holt, Justice.

This is an appeal from a probate court order in which it was determined that all of the property of Brady Franklin Nash, deceased, should be vested in his two adopted minor children, subject to the dower and statutory rights of his widow. The appellee, who is the surviving spouse and also the natural mother of the children adopted by the deceased, was appointed administratrix of his estate. The appellants are the collateral heirs of the deceased.

For reversal the appellants urge that a temporary order of adoption does not create the right of inheritance in the children sought to be adopted. Since we do not agree with this contention, it becomes unnecessary for us to consider the additional point urged by appellants that the final decree of adoption rendered in the case is void on its face and does not create the right of inheritance.

On December 13, 1966 Brady Franklin Nash filed his petition of adoption in the probate court. In his petition he stated, inter alia, that he was morally fit and financially able to care for and support his minor stepchildren whom he wanted to adopt; that the minor children were residing with him and his wife, who is their natural mother; that she had consented to the adoption; and he desired that they have his- name and that substituted birth certificates be issued to that effect. On the same day the court rendered a temporary order of adoption. This order provided that: “ [F]rom this date the said G-atha Ruth Hood and Wanda Darlene Hood shall be to all legal intents and purposes the children of the petitioner; that their names be changed to Gath a Ruth Nash and Wanda Darlene Nash, respectively, and that substituted birth certificates be amended to show the name of the adopting parent. ’ ’ On March 3, 1967, or less than six months after the rendition of this temporary order of adoption, the petitioner died. On June 14, 1967, upon the petition of appellee as administratrix of his estate, the temporary order was made final, the court finding , that more than six months had elapsed since entry of the temporary decree and that no objections had been filed thereto by any person or agency.

Subsequent to this final decree the appellants, as collateral heirs, filed a petition to determine heirship of decedent’s property. The decedent left a will which predated his marriage to appellee. The appellee, individually and as guardian of the two minor children, filed an intervention alleging that the children were entitled to inherit the decedent’s estate, subject to her dower and statutory rights. The appellants responded and alleged that these children were not legally adopted by the- decedent and that the purported adoption should be annulled. The court found the two minor children were entitled to inherit from their adoptive parent, the decedent, and that appellants’ petition for determination of heirship was a collateral attack on the order of adoption which is not subject to collateral attack. The court-said:

* * I do not believe that it was the intention of our legislature to change the legal status of these children merely by reason of the death of the petitioner prior to the expiration of six months from the date the original Decree was entered. As children of the petitioner from the date of the entry of the original Decree, said children were entitled to inherit as children of the petitioner.”

The court then ordered that decedent’s property be vested in his two adopted children, subject to the dower and statutory rights of his widow. We agree with the trial court. Ark. Stat. Ann. § 56-108 (1947) provides that when a temporary decree is rendered in an adoption case, the court shall order “that from the date of the decree the child shall to all legal intents and purposes be the child of the petitioner. The court may decree that the name of the child be changed according to the prayer of the petition, and shall provide whether the child’s substituted birth certificate shall, show the name of its natural parents or its adopting parents. After six [6] months from the entry of said temporary decree the petitioner may apply for a final decree and if no objections be made thereto by any person or agency, the same shall be granted. Upon objections being made, however, the court shall hear the same and shall thereupon make such orders as may be necessary. [Acts 1947, No. 369, § 9, p. 820.]”

The appellants argue that the temporary decree did not create the right of inheritance. They insist that according to § 56-109, a later provision of the above quoted act, the right of an adopted child shall vest only upon a final decree. This section of the statute reads, in part, that upon entry of a final decree:

“The person adopted shall have every legal right, privilege and obligation, and relation in respect to education, maintenance and the rights of inheritance to real estate or the distribution of personal estate on the death of the adopting parents as if born to them in legal wedlock.”

We have had occasion to consider the effect of a temporary decree of adoption. A. v. B., 217 Ark. 844, 233 S. W. 2d 629 (1950). This case involved the question whether the mother of an illegitimate child could revoke her consent to its adoption after a temporary order of adoption was granted and before a final order of adoption was made. The mother and the father of the illegitimate child married following her consent to the adoption and she sought to withdraw her consent before the final decree. It was argued that the subsequent marriage and a withdrawal of consent before the final order prevented a valid adoption. The court said:

“* * * The answer to this is that the adoption is effective as of the date of the interlocutory order, unless later set aside at the final hearing for good reason (§ 56-108), and the consent is required as of the date of the interlocutory order. At the relevant date in this case the child was illegitimate; and the adoption had already become effective, subject to the final hearing, when his natural parents married each other.”

Despite the fact that objection was voiced and an attempt made to withdraw consent before final rendition of the order, we held that the adoption was valid and effective upon the date of the interlocutory order.

We have also held that an adopted child who is later adopted by other parents has inheritance rights from both adoptive parents. Hawkins v. Hawkins, 218 Ark. 423, 236 S. W. 2d 733 (1951). See, also, Graham v. Hill, 226 Ark. 258, 289 S. W. 2d 186 (1956).

Our statute provides that a petitioner “may apply for a final decree” after six months and the court shall grant a final decree if no objections are made by any person or agency. This time limitation permits anyone or any agency to voice disapproval. Even if objections are made, it provides that “the court shall hear the same and shall thereupon make such orders as may be necessary.” In the case at bar no objections were made by any person or agency before the final decree was rendered. Although the final decree was granted at the request of the administratrix of the petitioner, the granting of the decree was a mere formality in the absence of any objections. In our view the stepchildren, whom petitioner desired to adopt, became his children “from the date of the [temporary] decree * * * for all legal intents and purposes.” The language in § 56-109, relied upon by appellants, is merely descriptive of these vested legal rights. It necessarily follows that decedent’s property is vested in his adopted children, subject to his widow’s dower and statutory rights. If the decedent had desired a limitation of these vested rights, he could have made appropriate provisions in a will as was done in Hawkins v. Hawkins, supra.

Affirmed.

Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. In view of the fact that the majority is departing from a well-established rule of construction in adoption cases, I must respectfully dissent. In Minetree v. Minetree, 181 Ark. 111, 26 S. W. 2d 101, this court stated that the proceeding to adopt a child as an heir was unknown to the common law and exists in this state only as a special statutory proceeding, relying upon the authority of Morris v. Dooley, 59 Ark. 483, 28 S. W. 30. In determining the validity of an adoption proceeding there involved, we said:

“* * * As said in O’Connor v. Patton, supra, ‘The right of inheritance as such is conferred in our state upon a stranger in blood only by pursuing the special statutory proceeding for adoption’; and we think the statute should be strictly construed as against the adopted child, ‘because it is in derogation of the general law of inheritance, which is founded on natural relationship, and is a rule of succession according to nature which has prevailed from time immemorial.’ ”

Although that holding was sharply criticized in a dissenting opinion and the doctrine had previously been criticized in Morris v. Dooley, supra, this court followed and declined to overrule the decision in Minetree in Pardo v. Creamer, 228 Ark. 746, 310 S. W. 2d 218.

There are significant portions of the adoption statute which preclude the result reached by the majority if the rule as to strict construction of the statute is followed. The statute provides that from the date of the temporary decree the child shall to all legal intents and purposes be the child of the petitioner. Ark. Stat. Ann. § 56-108 (1947). Nothing whatever is there said relative to rights of inheritance. The statute then provides that upon the entry of the final decree of adoption, the person adopted shall have every legal right, privilege and obligation and relation in respect to education, maintenance and the rights of inheritance to real estate or the distribution of personal estate on the death of the adopting parents as if born to them in legal wedlock. Ark. Stat. Ann. § 56-109 (1947). The difference in the language of the two sections is striking. We must, and should, upon a strict construction of the act against the “adopted” child, presume that the legislature had some intention and purpose in stating the rights of inheritance growing out of the entry of the final decree but not stating any right of inheritance upon the entry of the temporary decree. If the majority construction is correct, then the adoption of § 56-109, and particularly subsection (c), was a vain and useless action by the General Assembly.

There is another significant provision of the statute. After six months from the entry of the temporary decree, the petitioner may apply for a final decree. This provision certainly properly makes the entry of the final decree depend upon the option of the adopting parent. There is nothing whatever to indicate that this option may be exercised by the personal representative of the adopting parent after his death. Certainly this option should not be exercised by a personal representative who is also the natural parent of the children who would be benefited by the final decree being entered. It is certain that the legislature intended that the temporary decree effect a temporary adoption for experimental purposes. Provision is made for hearing upon any objections made to the adoption. But this hearing certainly can never be held unless the prospective adopting parent petitions for the final decree. Obviously, a parent who intended to adopt children might well find that making the adoption final was inadvisable because of any number of matters occurring in the intervening period. Most of all, this person might during the experimental period find that he was not particularly suited to be a parent or that the child was not particularly adaptable to his home.

I find nothing in any of the cases cited in the majority opinion that reaches the point involved here or that would lead to the construction given to the statute by the majority. Certainly they do not overrule the Minetree case.

I would reverse the judgment of the probate court.

Byrd, J., joins in this dissent.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Jewell Thomas BANE et al
    5-4927
    445 S. W. 2d 106
    Opinion delivered September 22, 1969

      Thomas R. Keys and Virginia Tackett, for appellant.

      Felver A. Rowell, Jr., for appellees.
   Carleton Harris, Chief Justice.

This is a highway condemnation case. On June 30, 1966, 18.40 acres were taken in fee by the Highway Department for Interstate Highway No. 40 from an 80-acre parcel owned by Jewell T. Bane, appellee herein, the result being that her remaining property was divided into two parts, approximately 18 acres being located north of the Interstate, and approximaely 43 acres being located south of the Interstate. A jury trial to determine Mrs. Bane’s damages resulted in a finding of $11,000.00 damages, and from the judgment entered in that amount, appellant brings this appeal.

Appellant attacks the testimony of Mrs. Bane as lacking substantiality, and also contends that the evidence of Mr. Forrest Griswood, manager of the Central Arkansas Production Credit Association, who testified on her behalf, is in the same category.

As to Mr. Griswood, this witness testified that the before condemnation value of the property was $22,-500.00. and the valuation after the taking was $12,535.00, leaving total damages in the amount of $9,965.00. The department moved to strike Griswood’s before value, because it contended that this value was based on a 1968 sale of land nearby, rather than 1966, the witness testifying that the land sold was comparable to that here in litigation. The taking having occurred in 1966, it is, of course, proper that 1966 sales be used for comparison. However, the court instructed the jury that it should disregard any sales mentioned by the witness which occurred after June 30, 1966; furthermore, the witness mentioned one 1966 sale where the property was sold for $200.00 an acre (which was the same figure per acre as the 1968 sale which the court held inadmissible). It is thus seen that Griswood did have a proper basis for reaching his before value, and the jury, having twice been told to disregard testimony relative to 1968 sales, we conclude that the denial of appellant’s motion was not prejudicial. The testimony of this witness was not particularly impressive, but we are unable to say that it did not constitute substantial evidence.

We agree with appellant that the judgment must be reversed because of the testimony of Mrs. Bane, the landowner. Mrs. Bane gave the before taking value of her property as $27,500.00, and the after the taking value as $9,990.00, leaving her figure for damages at $17,510.00. The before value was reached by considering the land to be worth $20,000.00, or $250.00 per acre, .and the building and improvements were placed at $7,500.00.

Mrs. Bane was the only witness who testified to damages of more than $9,965.00, and it is thus apparent that if the $11,000.00 verdict is sustained, it must be on the basis of her testimony. While we have many times said that a landowner is entitled to testify to the value of his or her property, still the basis of the’ value reached should lie shown. Mrs. Bane was not testifying that the subject property had a peculiar value to her, because of sentiment, or like reasons; rather, she professed to know the market value of property in the area. It definitely appears that several matters mentioned by the witness, which contributed to the damage figure reached, were not known to her, but were based purely on hearsay; apparently, information on one of the main items depended upon in her estimate was erroneous.

A great deal of uncertainty clouds Mrs. Bane’s testimony. When asked if there were metal structures on the property, she replied, “I think there is two or three for beans.” Interrogated as to what they are used for at the present time, she replied that she did'not know, as she had not looked lately, nor did she know whether any bins had been placed on the property after the condemnation. She did admit that “maybe” a couple had been placed on the premises recently. Mrs. Bane said that water would no longer flow to the lands to the south through the culvert in quantities as large as before the culvert was built (the water being essential to the raising of cattle), and it would be necessary to build a pond. However, when questioned, it developed that the statement was based purely on what someone had told her: “I haven’t been over there recently, only everyone has said there would be no water over there, so there will be no cattle over there.” When asked as to the size of the culvert, she gave an answer, but on further examination, stated, “I didn’t measure it, but that is what I have been told.” Although she had earlier stated that the improvements on the place amounted to $7,500.00, she could not, or did not, specify the manner in which this figure was reached.

The witness said that she had arrived at her figures on the basis of her knowledge of what other lands in the near vicinity had sold for. The lack of substantiality of this testimony is reflected in her testimony on cross-examination. From the record:

“Q. In arriving at $250.00 per acre, Mrs. Bane, you said you were familiar with what land was selling for in 1966, similar type land, and I believe you mentioned the Starkey property?
A. I know this. I know it was really high. It would be $250.00 an acre.
.Q. I thought I heard your testimony on that. Think back carefully. Do you know of your own knowledge that Mr. Starkey paid $250.00 an acre for that?
A. I imagine he paid more than that. I’m not sure. I do know we have figured it out a time or two, thinking about when I was asked the price, and how much it was an acre.
* * #
Q. * * * It was my understanding you based your opinion of $250.00 per acre on the fact that Mr. Starkey paid $250.00 an acre for his?
A. It has come from two or three different people, and I don’t just exactly know what Starkey p,aid, but I know it was a high price.”

The state’s evidence, subsequently offered, reflected that the Starkey property sold for approximately $79.00 per acre in June of 1963, and, according to one of the state’s expert witnesses, would have sold for approximately $100.00 an acre in June of 1966. Be that as it may, the point is that Mrs. Bane admittedly did not know what the Starkey property sold, for, and she had no knowledge of other sales in 1966, i. e., she said there had been sales, hut she did not know the amounts required for purchase. It might be mentioned that Mrs. Bane does not live on the property.

This case bears a striking similarity to Arkansas Highway Commission v. Darr, handed down on February 24,1969. There, Mrs. Darr owned certain land which had been condemned by the Highway Department. Two appraisers testified in her behalf, and gave their opinions as to the amount of damages she had suffered. She also testified, fixing her damages at more than twice as much as either of these witnesses. The jury returned a verdict in her behalf for damages in an amount that was greater than that fixed by either of her experts. Accordingly, there, as here, the award had to stand on the strength of the landowner’s testimony. This court held that her testimony on damages was not substantial. She did not live on the land, and showed no reasonable knowledge of market values of lands in the community, and we commented that it was apparent that she had a sentimental attachment for the farm. It was pointed out that, while a landowner is permitted to testify, because of his or her status as the owner, her conclusion on damages had to pass the substantial evidence test, and it was necessary that her testimony be examined to see if she gave a satisfactory explanation for her conclusions.

Here, Mrs. Bane did not give satisfactory reasons for her conclusions, and it is necessary that the judgment be reversed. We know of no way to fix an amount as just compensation for the damages occasioned by the taking of her lands. It is certain that the jury gave consideration to her testimony, else it could not have reached its verdict; for that matter, we do not know that it considered the testimony of Griswood. The award could have been based solely on the testimony of the owner. With her testimony out of the way, it might be that the jury would have taken the appraisal of one of the state’s two experts, both of which were considerably less than that of Mr. Griswood. Accordingly, as in Darr, we reverse and remand.

It is so ordered.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. Conceding that appellee was not familiar enough with the property to have substantial basis for her testimony as to value, her unfamiliarity with real estate values should not be of any consequence. Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S. W. 2d 1.1 also think that she had the right to rely on hearsay with reference to specific sales. I find nothing in the record showing what consideration actually passed on the Starkey purchase. The state’s evidence on this point was also hearsay.

.Even if Mrs. Bane’s testimony did not constitute substantial evidence, I do not agree that the verdict rests on her testimony alone. It is true that Forrest Griswood stated total damages in the sum of $9,965 based on the values before and after condemnation as stated in the majority opinion. In arriving at the value after the taking, however, he included the 18.4 acres taken by appellant at $200 per acre. Appellant concedes in its brief that on the face of the matter, $3,680 should be added to his calculation of damages. The inclusion of this amount in the valuation of the remaining land was an obvious error. In view of the correct instruction given by the trial judge the jury could easily have arrived at its verdict upon the basis of his testimony. This instruction told the jury to ascertain just compensation by determining the fair market value of the whole property immediately before the taking and the fair market value of the remaining property immediately after the condemnation. When the jury applied the court’s instruction, the amount of just compensation it might have found on the basis of Griswood’s testimony could have been as high as $13,645. For this reason I would affirm the judgment.

       These beans, according to the witness, are not grown on the farm, but on lands of a neighbor which are rented by her brother.

      “Q. How much were they, considering their age and everything, how much did they contribute to the property out of the $27,500.00? How much of that was due to the barns and fences? A. How much were they worth to the place? Q. Yes, mam. A. 1 don’t know.”


author: George Bose Smith, Justice. John A. Fogleman, Justice

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Loyd COFFMAN et ux
    5-4947
    444 S. W. 2d 689
    Opinion delivered September 22, 1969

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Guy H. Jones, Phil Stratton and Joe Gambiano, for appellees.
   George Bose Smith, Justice.

This is a condemnation proceeding in which the highway department is taking, as a right-of-way for Interstate 40, a strip of land comprising 14,09 acres along the southern edge of a 50-acre tract owned by the appellees. The appeal is from a verdict and judgment fixing the landowners’ compensation at $65,000.

The appellant first insists that it was entitled to a change of venue. The proof offered to support the motion was subject to the same defects as that offered in Arkansas State Highway Comm’n v. Leavell, 246 Ark. 1049, 441 S. W. 2d 99 (1969); so, for the reasons stated in that opinion, the motion for a change of venue was properly overruled.

The appellant’s principal arguments center upon the substantiality of the testimony adduced by the landowners. They first introduced two expert witnesses, C. Y. Barnes and Lloyd Pearce. Barnes valued the strip taken at $650 an acre and the tract as a whole before the taking at $550 an acre. He fixed the landowners’ total damages at $54,000, much of which derived from the taking of, or depreciation of, improvements. Pearce, whose conclusions were. essentially similar to those of Barnes, valued the land at $500 an acre and arrived at total damages of $56,450.

We need not discuss in detail the testimony of the two expért witnesses, for both of their estimates of the landowners ’ just compensation were substantially below the amount of the jury’s verdict. We should observe, however, that just as in Arkansas State Highway Comm’n v. Roberts, 246 Ark. 1216, 441 S. W. 2d 808 (1969), the witnesses were unable to cite a comparable sale of land in the vicinity at a price sufficient to support the acreage values they attributed to the land. The only specific figures given by Barnes were involved in a sale of land that he admitted not to be comparable to the Coffman property. He stated, merely as ,a conclusion, that he had considered probably ten or twelve sales “which you would take into account with a greater degree of intensity with reference to the Coffman property.” He also stated as a conclusion that he had adjusted poncomparable sales as a basis for his opinion, but again no details were- supplied. When asked if he had any sale of comparable property at as much as $550 an acre, Barnes said that he knew of no such sale. A witness for the highway department testified about comparable sales at a much lower selling price.

As we have indicated, the verdict must rest only upon the testimony of the landowner Coffman, who alone fixed the damages at an amount equal to the actual award. Coffman went substantially above the estimates of his own expert witnesses by valuing the land at $1,-000 an acre. On cross examination, however, he was unable to give any reasonable basis for such an exaggerated valuation. Hence his testimony is not substantial proof. Arkansas State Highway Comm’n v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966).

Coffman said that two or three years before the trial a 40-acre tract about a quarter of a mile south of his land had sold for $1,000 an acre. He gave no facts whatever to support a conclusion that the two tracts were comparable within the meaning of the law. See Arkansas State Highway Comm’n v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309 (1963). To the contrary, he admitted on cross examination that the other sale involved land that fronted on a paved highway and that was sold for a subdivision, while Barnes had testified that the highest and best use for the Coffman tract was as an agricultural unit, “with a potential for urban development.” The testimony offered by the highway department was to the effect that the land involved in the sale cited by Coffman was not comparable to the property being considered in the case on trial. According to that proof, which stands uncontradicted in the record, the elevation of the other property was more desirable, that property did not flood like the Coffman land, and it was bought basically for its commercial area fronting on the highway. We are compelled to conclude that Coffman’s testimony was not of such a substantial quality as to support the jury’s verdict.

Reversed and remanded for a new trial.

Fogleman, J,, dissents.

John A. Fogleman, Justice

dissenting. I respectfully dissent from the reversal of this case. The landowner was permitted to state his opinion as to the value of the property involved without objection. There was no motion to strike his testimony. Even though it might be considered that the failure to do so is no bar to questioning the substantiality of the testimony on appeal, it certainly can be considered as indicative that appellant did not regard the landowner’s testimony to be without substance at the time.

Coffman went into detail as to how he arrived at the valuations he gave. He acquired part of the land in 1941 and the remainder in 1952. He constructed his dwelling house on the lands in 1942, and he and his wife had resided there continuously since that time. He and his wife invested their life’s earnings in two 12,000-square-foot chicken houses on the property. One was built in 1961 and the other in 1963. These chicken houses were on the 10-acre tract first acquired. The remaining 40 acres had been used for meadow, but Coffman stated that it was held for future development and that he intended to sell homesites. As a basis for this use he testified that the town had moved around their property, that the trade school, high school and lake lay immediately north and that nice homes had been built farther north. On cross-examination inquiry was not directed as to his knowledge of sales generally. He was only asked whether he knew any land in the area that sold for $1,000 an acre. He knew of the sale of 40 acres by Carl Thines to one Allison, and said that this land lay a quarter of a mile south of him and was sold two or three years previously for a development. Coffman testified that there wasn’t much difference in the Thines land and Ms own, stating that he worked out there for Thines on a dairy farm and helped clean up the land. He said that the Thines land was just an open field. He stated that the property had subsequently been developed into a subdivision and that, as time went by and building there continued, his property got more valuable. As a matter of fact, he valued the 10 acres remaining north of the creek dividing his land at $1,000 per acre after the taking.

I do not see how it can he said that Coffman’s testimony was not substantial just because an adverse expert described the sale as non-comparable. 'The statement that the property was bought basically for the commercial area on the front is certainly hearsay. The Coffman land, according to an expert witness for the state, had a sewer line across it. While the Thines land has such a line now, the state’s witness could not recall whether it did at the time of sale or not. Coffman testified that Thines approached him about a right-of-way for a sewer line. The state’s witness said that Mr. Allison was intending to build a Ford agency on that land. He stated the opinion that the Thines property was commercial and subdivision. It was admitted on the cross-examination of this witness that the Thines property was probably not in the city limits at the time of the sale hut that the Coffman property joined the city limits. I submit that the majority has weighed the testimony rather than determining its substantiality. The jury was the best judge of the weight to be given to these opinions. It is significant that one of the state’s witnesses placed a value of $1,000 per acre on five acres of the Coffman property. This witness was not asked about the Thines-Allison sale at all.

I also disagree with the observation with reference to the testimony of C. V. Barnes for the reason stated in my concurring opinion in Arkansas State Highway Commission v. Roberts, 246 Ark. 1216, 441 S. W. 2d 808. I do not believe that it is necessary in order to support a witness’ opinion that he must be able to cite a comparable sale for an amount equal to or greater than the value placed by him on the subject property. With reference to the sale from Gasper to Kordsmier, Barnes was asked why he thought the Kordsmier sale was comparable. He answered that he didn’t say that it was comparable but said that it was property he considered in arriving at his value of the Coffman property. He stated that the property was about the same distance from the central business district as the Coffman property. It also abutted the north city limits of Morrilton but had water,, gas, sewer and electricity. Unlike the Coffman property, it was encumbered by a gas line easement. He testified that it was a comparable sale, if you properly adjusted for the difference in the location and other factors, and was a sale to be taken into consideration in arriving at the value of the Coffman property. He also considered a sale of Bostian to Medlock, made at approximately the time of the taking on the Coffman property and which he considered better property than the Coffman property, but placed a lesser value on the property here than the sale price involved in Bostian to Medlock. The Medlock property was approximately one-half mile from that of Coffman. He testified that land in the vicinity of the Coffman property was tightly held. He was asked on cross-examination to give a sale of “land like this, with a creek through it.” It was to this question that he responded that he knew of no other sale.

I submit that the court is not justified in indicating that the sale in question was not a comparable sale in the sense of constituting a basis for the opinion testimony of an expert witness or in saying that the witnesses were unable to cite a comparable sale of land in the vicinity at a price sufficient to support their acreage values. If the G-asper-Kordsmier sale and the Bostian-Medlock sale were not comparable sales, the burden lay upon appellant to so demonstrate. It did not do so.

I would affirm the judgment of the trial court.


author: George Rose Smith, Justice.

text:
    TOWN OF DYESS v. Leonard WILLIAMS
    5-5416
    444 S. W. 2d 701
    Opinion delivered September 22, 1969

      Bruce Ivy, for appellant.
    No brief for appellee.
   George Rose Smith, Justice.

In 1968 the town of Dyess adopted Ordinance No. 10, which required all places of business within the town to remain closed from midnight until 4:00 a.m. The appellee, Leonard Williams, operated an establishment called the Blue Eagle, at which he sold sandwiches, ice cream, candy, and soft drinks. Williams was arrested for a violation of the ordinance. In the municipal court he was found guilty, but on appeal the circuit court held the ordinance to be invalid. The correctness of that ruling is the issue here.

It is familiar law that municipalities have only those powers that have been delegated to them, expressly or by implication, and that any fair, reasonable, and substantial doubt about the existence of a power in a municipal corporation must be resolved against it. City of Little Rock v. Raines, 241 Ark. 1071, 411 S. W. 2d 486 (1967); Yancey v. City of Searcy, 213 Ark. 673, 212 S. W. 2d 546 (1948).

Here the town, to sustain its ordinance, relies upon general language in our comprehensive statute governing municipal corporations, Act 1 of 1875. Section 12 of that act empowers municipalities “to prevent injury or annoyance within the limits of the corporation, from anything dangerous, offensive or unhealthy, and ... to prevent any riots, noise, disturbance, or disorderly assemblages.” Ark. Stat. Ann. § 19-2303 (Repl. 1968). Section 22 of the same act authorizes municipalities to .adopt ordinances “necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof.” § 19-2401.

On the record before us we agree with the circuit court’s conclusion that Ordinance No. 10 exceeds the town’s delegated authority. There is no proof that the measure is needed to accomplish the purposes enumerated in the statute. According to the testimony, teenagers and other youths from Dyess and from nearby communities patronize the Blue Eagle after midnight. There is some honking of horns there, but the town’s principal grievance is that the youngsters also sound their horns while driving noisily about the streets in cars not equipped with mufflers.

It is evident that the town’s purpose could readily be accomplished by the enactment of an ordinance directly prohibiting the objectionable conduct. There is no need for the town to attain its objective indirectly by closing all places engaged in lawful business after midnight. In a similar case the Mississippi Supreme Court held invalid an ordinance that would have required drug stores, doctors, lawyers, and all businessmen to close their offices by ten o’clock at night. Goodin v. City of Philadelphia, 222 Miss. 77, 75 So. 2d 279 (1954). Here, too, the sweep of the ordinance goes too far beyond the necessities of the situation.

Affirmed.


author: Lyle Brown, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Alma Summers WALLACE
    5-4964
    444 S. W. 2d 685
    Opinion delivered September 22, 1969

      Thomas B. Keys and Hubert Graves, for appellant.

      Gordon, Gordon & Eddy, for appellee & crossappellee.
   Lyle Brown, Justice.

Appellant Arkansas State Highway Commission instituted this action in eminent domain to acquire from Alma S. Wallace, appellee, 2.55 acres needed for the relocation of State Highway No. 9. The jury fixed the landowner’s damages at $18,000. On direct appeal the Commission argues error in the admission of certain value testimony and in an admonition to the jury which is attacked as being a comment on the evidence. The landowner cross-appeals, alleging error in the giving and refusing of certain instructions and in allowing the Commission to proceed on the assumption that the taking did not impair ingress and egress.

Mrs. Wallace’s 143-acre tract, part of which is located in the city limits of Morrilton, was used before the taking as her home and for a dairy operation conducted by her husband. The land had a narrow frontage (some 300 feet) along Highway 9. before the relocation, and then ran eastward a distance of slightly more than three-quarters of a mile. The relocation moved the highway eastwardly which resulted in1 a severance of the westerly ten acres from the remainder of the tract.

' The first point for reversal on direct appeal concerns the value testimony of Mrs. Wallace. In her estimate of values she considered, the immediate use as a home and dairy operation; then she envisioned, in. .the foreseeable future, the utilization of the land for urban development, the latter being considered the highest1 and best use. On direct examination Mrs. Wallace described generally the land and improvements, the dairy Operation, future adaptability to homesites, and estimated the value before the taking to be $120,000. She then testified that the severance had substantially impaired the land for development into lots and explained the reasons for that conclusion. She also asserted that a dairy operation was no longer feasible. She was then asked the value of the property after the taking and she replied, “I guess $85,000.” Her computations were not based on allocation of values, rather they were her conclusions of overall estimates. - v '

Her testimony which formed the basis of the reversal point under discussion occurred on cross-examination. After having testified that the taking had closed down the dairy business, there was this question and answer:

Q. Are you counting the fact as an element of damages that he is no longer in the dairy business'?
A. That’s right. He is no longer in the dairy business, and the equipment is just there.

Thereupon the condemnor moved that Mrs. Wallace’s testimony on just compensation be stricken because her figures included an improper element, being loss of the dairy business. The request was denied. That element of damage is not proper in ascertaining, in these cases, damages to lands and improvements. City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846 (1914).

It is highly significant that Mrs. Wallace did not allocate a specific figure to business loss. It was therefore impossible for the jury to know the amount of damages included for that item. They might have speculated the figure to be $8,600 because her estimate was that much higher than her expert witness, Pearce; hut of course we do not propose to encourage speculation. Specifically, we hold that when a witness testifies to a total just compensation figure and it is shown that an impermissible element of valuation has been incorporated in that figure, the value testimony so affected cannot stand unless the improper amount can be distinguished. Of course the witness should he afforded an opportunity to specify the amount improperly included when that fact is revealed.

In its second point for reversal the Commission contends that appellee’s appraisers erroneously considered the taking would make it possible for the highway department to restrict the landowner’s ingress and egress to and from the highway. We find the contention to be without merit. The subject matter will later be discussed in our treatment of the landowner’s cross-appeal. The Commission’s third point concerns an admonition given the jury with reference to Mrs. Wallace’s value testimony. In view of our holding on' the first point that problem is not likely to arise on retrial.

The first three points on cross-appeal are concerned with the effect of a taking in fee simple upon the landowner’s right of ingress and egress on and across the relocated highway which divides her property. The Commission contends that it condemned the lands ‘ ‘ pursuant to a statute under which it does not have the power to regulate and control the access of abutting landowners.” Mrs. Wallace argues that the taking, being in fee simple, subjects her right to cross the highway at all points along the new frontage strip to the control of the Commission. She does not insist that she would be completely blocked, as in the case of a controlled access facility, but she strongly argues that the taking in fee simple gives to the Commission the power to control access in such manner as would serve the best interests of the paramount use of the lands taken.

The complaint was filed “pursuant to the authority and provisions of Act No. 419 of the 1953 General Assembly of the State of Arkansas, Ark. Stat. Ann. § 76-532 et seq.” That law provides that the Commission may acquire lands for stated purposes by condemnation and that title may be acquired in fee simple or any lesser estate. In its complaint the Commission stated that it was necessary to condemn the subject lands in fee, excepting from the taking only drainage rights to oil and gas. That was also the content of the prayer of the complaint. The judgment recites that “fee simple title to said lands described be and it is hereby vested and confirmed in the Arkansas State Highway Commission.”

For a number of reasons, some of which we shall shortly discuss, we hold that the fee simple taking of the subject property vested in the Commission a most substantial control over the right of this property owner to go to and from her lands on each side of the new highway.

In the first place, the Commission did not take an easement; to the contrary, it took the highest estate possible. In 28 Am. Jur. 2d, Estates, § 10, we are told that fee simple “defines the largest estate in land known to the law and necessarily implies absolute dominion over the land. ’ ’

Ark. Stat. Ann. § 76-544 (Repl. 1957) tells us that the acquisition of the property is to be “held inviolate for state highway purposes.” Some exceptions are .provided in that section which would allow, with the Commission’s consent, the use of the right of way by political subdivisions, rural electric cooperatives, rural telephone cooperatives, and public utilities. No exception is listed whereby private landowners are given any type of described access for ingress and egress.

Section 76-532 specifically provides that highway purposes shall include not only the use of the property taken for public travel, but for such projects as roadside parks, the culture and support of trees and shrubbery, drainage, maintaining an unobstructed view for the traveling public, the elimination -of public or private crossings, and the protection of the highway system from physical and functional encroachments of any kind. We have recited only a few of the eleven projects authorized in the statute. We perceive that Mrs. Wallace’s unfettered access would be subordinate to any of the authorized uses.

Under § 76-548 the Commission would be authorized to later sell the property taken from Mrs. Wallace if it became no longer necessary or desirable for highway purposes. It is true that Mrs. Wallace or her successors in title would have the option to acquire the property by paying a price fixed by appraisers. That power of sale is cited to point np the difference between fee simple acquisition under Act 419 and the conventional acquisition of easements under prior law. Under the easement statute the lands, when declared surplus, reverted to the adjoining landowner.

We hold that a fee simple taking under Act 419 places the predominant control of all lands within the right-of-way in the Commission; that the utilization of the acquired property for highway purposes and for such purposes as are delegated to political subdivisions and utilities will as a matter of law take precedence over all other uses; and that Mrs. Wallace’s use of the highway for going in and out of her property can reasonably be expeeted to be affected.

The landowner’s first point for reversal on cross-appeal is the refusal of the court to give this requested instruction:

DEFENDANT’S INSTRUCTION NO. 1. The Arkansas State Highway Commission in this case alleges in its complaint that it is proceeding under Arkansas Statutes, Section 76-532, which provides that the State Highway Commission is hereby authorized to acquire real property, or- any interest therein, deemed to be necessary or desirable for State Highway purposes, by condemnation. Such lands or real property may be acquired in fee simple or any lesser estate.
The Arkansas State Highway Commission alleges in its complaint filed in this case that the lands owned by Mrs. Alma Summers Wallace are needed for State Highway purposes, ‘and it is necessary that said lands be condemned by order of this court and title in fee simple (save and except drainage rights to the oil and gas therein and thereunder as do not interfere with surface use for highway purposes) thereto be adjudged and vested in the Arkansas State Highway Commission.’

The instruction should have been given. It sets out in an unbiased manner (1) the authority of the Commission to take land for highway purposes, and (2) correctly states that in this case the Commission is taking a fee simple title excepting the drainage’rights to oil and gas.

The landowner’s second point is that the court erred in giving the following instruction:

INSTRUCTION NO. 13. You are instructed that the highway in question here today is not what is known as a controlled access facility. The abutting landowners along this highway will have a right of reasonable egress and ingress to their lands from the highway.

That contention is meritorious. From what has been said it is apparent that the nature of Mrs. Wallace’s access may well be substantially impaired; certainly the right of ingress and egress was not established as a matter of law.

On both direct appeal and cross-appeal we are asked to say whether the landowner’s appraisal witnesses had a right to consider the fee simple taking a factor which would reduce the market value of her lands; that was on the premise that it would be reasonably expected to affect an unrestricted right of ingress and egress. Our answer is that the witnesses properly considered that element. 'They did not attempt to assess a certain monetary figure because that would have been impossible; but certainly an informed prospective buyer, in noting the fee taking, would realize that his access to the highway would surely be subordinated to the needs of the highway department and those political subdivisions or utilities utilizing the untraveled portion of the right-of-way.

Reversed on direct appeal and cross-appeal.


author: John A. Fogleman, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Guy Lee CLARK et ux
    5-4965
    444 S. W. 2d 702
    Opinion delivered September 22, 1969

      Thomas B. Keys and Billy Pease, for appellant.

      Felver A. Rowell, Jr., for appellees.
   John A. Fogleman, Justice.

The question involved on this appeal is whether there is substantial evidence to sustain a verdict awarding appellees $5,000 for the taking of 5.76 acres of their 40-acre tract for the construction of a controlled-access highway. Appellant contends that neither the testimony of Guy Lee Clark, one of the landowners, nor that of Forrest Griswood, an expert witness for appellees, constituted substantial evidence. We find that the testimony was sufficient to support the verdict.

The tract lay one mile east and one mile south of Menifee. It was unimproved and constituted a part of a cattle operation conducted by appellees. It was used as a pasture. There was access to the property by a graded dirt road leading to the northwest corner. This access is severed by the new highway. After the taking 1.12 acres remained north and east of the right-of-way and 33.13 acres south and west thereof. It is conceded that the south residual is without access. Expert witnesses for both appellant and appellees state that the value after the taking depends upon possible sale of the remaining lands to adjoining owners. Testimony on the value of the whole tract before the taking ranges from Clark’s opinion of $8,000 and those of appellant’s appraisers of $3,000. Opinions of values after the taking range from Griswood’s figure of $1,712 down to Clark’s $750. Appellant’s witnesses fixed this value at $1,000 and $1,050, respectively.

The qualifications of Forrest Griswood, manager of Central Arkansas Production Credit Association for 10% years, are not attacked. He described the tract as upland.woodland having a highest and best use as pasture for livestock. He stated that 20 head of cattle, or a cow to every two acres, could be “run” on this tract before the taking. He said that there was a small pond upon the tract. The grass on the land was native.

Griswood testified that the value of the whole tract on March 30, 1966, was $5,000 or $125 per acre. He valued the residual tracts at $50 per acre. This indicated just compensation to be $3,288. Appellant says that this testimony was not substantial because the sales upon which Griswood relied were not comparable.

Griswood referred to sales of wooded pasture near Plumerville. One of them, made in May 1966, was from Marks to Poteete. This tract located on Highway 64 consisted of 120 acres of land about 114 miles south and west of Plumerville. Eoughly, 75 acres were open and the remainder woods and brush. He said the transaction was a forced sale handled by him through the association by which he was employed. The total consideration was $15,000, of which he estimated that the land brought $10,000 or $83.33 per acre after deducting $5,000 for a house and barn on the property. Another was the 1963 sale by Nisler to Davidson of 159 acres for $21,000 or $138 per acre. This acreage was four miles north of Plumerville on Highway 92. After allowing for improvements, he felt that the land brought approximately $15,000, or about $94 per acre. This tract consisted of 80 percent open pastureland with a good pond. It had improvements and better access quality than the lands of appellees. In this respect Griswood admitted that this sale could not be called comparable to the Clark land.

Still another sale considered by Griswood was that of 80 acres 1% miles east of Plumerville by one Thomas to a buyer named Stobaugh in April 1966. It was partially open and partially wooded pastureland, having no improvements except a small house which he valued at $200 to $300. Even though this tract was located on Highway 64, it was his opinion that the highway frontage at this point was not desirable for home sites and no more valuable than the rest of the land. He conceded that level land, such as this, and land on a paved highway were more valuable than land like that of appellees.

In determining comparability of sales we must always remember that no two tracts of land are identical and that the court must allow reasonable latitude in evaluating sales. Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S. W. 2d 381; Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S. W. 2d 563. In determining substantiality of the evidence to support a verdict, we review the testimony in the light most favorable to appellees and indulge all reasonable inferences in favor of the judgment. Arkansas State Highway Commission v. Carder, 228 Ark. 8, 305 S. W. 2d 330; Arkansas State Highway Commission v. Sargent, supra. Assuming, without deciding, that the first two sales were not sufficiently comparable to the Clark lands to afford a reasonable basis for the value testimony of this witness, we cannot say that the Thomas-Stobaugh transaction was shown to be so dissimilar as to afford no basis for the testimony of this witness. It was incumbent upon appellant to show that a witness competent to testify as to land values has no reasonable basis for his opinion before we can say that his testimony on the subject is not substantial. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S. W. 2d 436; Arkansas State Highway Commission v. Dixon, 246 Ark. 756, 439 S. W. 2d 912; Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S. W. 2d 563.

Since the testimony of Griswood is less than the amount of the jury verdict, the only support for it must be found in the testimony of Guy Lee Clark, Jr., one of the landowners, a farmer and rancher. He testified that this land was worth $200 per acre before the taking and that the remainder, because of the lack of access was worth only $25 per acre. On cross-examination, Clark said that he was using this tract in a pasture program in conjunction with other lands he purchased along with it. The total acreage amounted to 496, for which he paid $30,000, or an average of about $60 per acre. He did not state and was never asked the date of this purchase. He described the land as not heavily wooded and as being, in part at least, as good land as there was in Arkansas. He estimated that he was running ‘ ‘ a couple of head of cattle” on the land at the time of the taking but could not say how many because he was using it with the other lands. Prior to the taking he had “bush hogged” the land and utilized it for shade. He stated that his opinion was based on no sales and that the only land he knew of selling in the area was cropland within a mile of this tract which sold for $400 per acre. The only other reason he could give for believing his land had the value he assigned to it was that he had tried to buy land and that there was none for sale, even at $200 per acre.

Since Clark did not base his opinion on comparable sales, appellant’s assertion that he did not show that he was acquainted with the market and other sales in proximity to his lands relied upon by appellant’s experts is of little consequence. Appellant never asked Clark about his knowledge of these sales or for an explanation of their comparability. Consequently, it is in no position to contend that this lack of knowledge made his testimony insubstantial. Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S. W. 2d 563.

This situation is unlike cases in which we have found the testimony of a landowner insubstantial because of his unfamiliarity with the land in question, his failure to give any basis for his opinion or his reliance upon values indicated by comparable sales as the sole basis for his opinion. See e. g., Arkansas State Highway Commission v. Darr, 246 Ark. 203, 437 S. W. 2d 463; Arkansas State Highway Commission v. Ring, 247 Ark. 170, 444 S. W. 2d 705; Arkansas State Highway Cammission v. Roberts, 246 Ark. 1216, 441 S. W. 2d 808; Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738; Arkansas State Highway Commission v. Coffman, 247 Ark. 149, 444 S. W. 2d 689. Here the landowner described the land thoroughly, expressed his opinion as to its quality, related the futility of his efforts to purchase lands, even at $200 per acre, and told of improvements made to better adapt the property to the use to which it was devoted. His description of the utilization of the property, coupled with that of Griswood as to the capacity of the land to support the cattle production, gave a reasonable basis for his testimony. His opinion related to its capacity and desirability for agricultural use rather than to comparable sales data. It had sufficient basis to constitute evidence as substantial as’ we found in the testimony of property owners in Arkansas State Highway Commission v. Holt, 242 Ark. 287, 413 S. W. 2d 643; Housing Authority v. Angel, 239 Ark. 224, 388 S. W. 2d 394; City of Springdale v. Keicher, 243 Ark. 161, 419 S. W. 2d 800. Even though many of the suggested infirmities in Clark’s testimony have great bearing on the weight of his testimony, we cannot declare it insubstantial on this basis.

The judgment is affirmed.

Byrd, J., concurs.


text:
    ARKANSAS STATE HIGHWAY COMM’N v. Heirs at law of N. D. RING et al
    5-4976
    444 S. W. 2d 705
    Opinion delivered September 22, 1969

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      George J. Cambiano, for appellees.
   John A. Fogleman, Justice.

Appellant asserts that there is reversible error in this eminent domain proceeding because of the denial of its motion for change of venue and because there was no substantial evidence to support the jury’s verdict. We find merit in the second ground for reversal, but not the first.

Appellant’s contention as to the change of venue embraces the same arguments we rejected in Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S. W. 2d 563; and Arkansas State Highway Commission v. Leavell, 246 Ark. 1049, 441 S. W. 2d 99. Appellant does state, however that it is not relying upon Ark. Stat. Ann. § 27-701 — 27-704 (Repl. 1962) as a basis for its motion for change of venue. It has long been recognized in Arkansas that these statutes govern all proceedings for change of venue in civil eases. Wise v. Martin, 36 Ark. 305; St. Louis, I. M. & S. R. Co. v. McNamare, 91 Ark. 515, 122 S. W. 102; St. Louis, I. M. & S. R. Co. v. Transmire, 106 Ark. 530, 153 S. W. 817; St. Louis, I. M. & S. R. Co. v. Reilly, 110 Ark. 182, 161 S. W. 1052; Scott v. State, 173 Ark. 625, 292 S. W. 979; Desha v. Independence County Bridge Dist., 176 Ark. 253, 3 S. W. 2d 969. Appellant does not advise, nor do we know, of other governing statutes. Consequently, the holding in the Duff case and the Leavell case applies here. We cannot say that a trial court abused its discretion in failing to grant a motion which is not supported as the applicable statute requires.

We fail to find substantial evidence to support the jury award of $3,600 as just compensation. Harold Ring, one of the appellees, was the only witness who testified that the difference in value between appellees’ 1.4-acre tract before the taking and the residuals of 0.57 acre and 0.15 acre amounted to more than $3,500. Mr. Ring left Morrilton, near which the lands are located, in 1954. In the interval between his removal from Morrilton and the trial, he has resided at West Memphis and Little Rock and has been employed as a driver for Arkansas Best Freight System. Appellees’ attorney admits that this witness was unable to explain the values about which he testified as required by Arkansas State Highway Commission v. Darr, 246 Ark. 204, 437 S. W. 2d 463. Therefore, we must reverse for lack of substantial evidence to support the verdict, and remand for a new trial.

We find ourselves in the identical position as obtained in the Barr case, in spite of appellant’s attack on the testimony of Gene Huett, an expert witness, on behalf of appellee. One of the bases of this attack was that Huett only visually observed the house on the 0.4-acre homesite, did not examine the roof, and did not know the age or area of this house. This point might have been well taken were it not for the fact that the witness testified that the house and homesite were not reduced in value by the taking and assigned the same value to them in determining the value of the remainder as he did in estimating the value of the whole property before 0.68 acre was taken.

Appellant also asserts that Huett’s testimony was not substantial because: (1) he valued the property on a front footage basis without being sure as to the amount of frontage; (2) he failed to take into consideration the plans and specifications for the project in arriving at his values of the residual property; and (3) because he used the sale of lots from the Deerwoocl subdivision and other properties in the same area as a basis for the vame assigned by him to the Ring property outside the homesite.

The burden was upon appellant to show the lack of a reasonable basis for Huett’s testimony. Arkansas State Highway Commission v. Holt, 242 Ark. 287, 413 S. W. 2d 643. We cannot say it successfully did so, upon the record presented here. Huett’s only uncertainty about frontage related to the homesite, and he promptly agreed to or accepted the figure stated by appellant’s counsel. Inasmuch as Huett knew the shapes and sizes of the residual tracts and that they bordered on the relocated highway, we find no significance in the fact that he made no study of appellant’s construction plans. Even though Huett was inexplicably uninformed as to the consideration and terms of the sale of a tract of land cornering on the Ring property, appellant still did not show that the Deerwood Subdivision was highly developed or that there was no basis for comparison of the properties. Huett testified that he had helped develop a subdivision in Morrilton. One of appellees’ witnesses agreed that .city utilities were available to the Ring property. Huett said that the road to the property was passable and that houses were being built along it. He stated that the highest and best use for all of the property before the taking was for residential lots. One of appellant’s witnesses agreed, and the other ascribed a use as undeveloped residential property. One of them admitted that he also considered some sales of lots in arriving at the values assigned by him. We find nothing in the record to show such a lack of comparability of the subject property and the Deerwood property and other lots referred to by Huett to justify declaring his testimony to be without substance.

We have considered the possibility of offering a remittitur in this case but, as heretofore mentioned, are confronted with the same difficulty we found in Arkansas State Highway Commission v. Darr, 246 Ark. 204, 437 S. W. 2d 463.