author: J. Feed Jones, Justice. John A. Fogleman, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. William J. DEAN et al
    5-4269
    425 S. W. 2d 306
    Opinion delivered March 18, 1968

      John R. Thompson and Phillip N. Gowen, for appellant.

      Clark, Clark & Clark and Guy H. Jones, for ap-pellees.
   J. Feed Jones, Justice.

This is a condemnation case arising out of the construction of Interstate 40 through Conway, in Faulkner County, Arkansas. By right of eminent domain, the state highway commission condemned a right-of-way across property belonging to appellees on the outskirts of Conway. Judgment was entered by the Faulkner County Circuit Court on a jury verdict of damages in favor of the appellees in the amount of $41,-500.00, and the commission has appealed.

Appellant has designated the following points relied upon for reversal:

“The trial court erred in refusing to disqualify himself, and in refusing to quash the jury panel.
The trial court erred in refusing to give plaintiff’s (Appellant’s) requested Instruction No. 10.
The trial court erred in refusing to give plaintiff’s (Appellant’s) requested Instruction No. 8.”

The record before us reveals the following facts: Prior to 1957, a study was made by the Arkansas Highway Department of a route for Interstate 40 Highway through Faulkner County. A proposed route east of Conway was surveyed and traced on county maps in 1956, and this route was recommended when the study was completed in 1957. In 1958, the proposed highway and the proposed route through Conway were discussed by officials of the highway department with the citizens of Conway at a public Chamber of Commerce meeting. Following this meeting, the Children’s Colony north of Conway requested a change in the proposed alignment of the highway in order to miss some of the improvements at the Colony, and this change was made. The final survey for the alignment of the highway was completed in 1959, and the county and city maps, showing the proposed designated route, were brought up to date. In 1963, strip maps of the proposed highway right-of-way were furnished to Mr. Ott, a title abstracter in Conway, and on the basis of these maps he furnished requested title information to the highway department on land along the proposed route. About February 1, 1964, the highway department started gathering sales information and making actual appraisals of the property to he condemned. The center line stakes for Interstate 40 ivere finally set by the highway department in February 1965, and actual negotiations for the purchase of right-of-Avay from the owners along this route were commenced in May 1965.

When the highway department actually started negotiating with property owners for the purchase of rights-of-AYay, other negotiations had already been under way for some time for highway frontage along the same route staked out by the highway department. On January 21, 1965, Continental Oil Company had taken three separate options to purchase nine lots adjacent to the right-of-way for the total price of $85,000.00. In January or February 1965, appellees were negotiating for the purchase of 47 acres of the land involved in this case from C. T. Bay, and Mr. Ott was their chief competitor. Mr. Ott was successful in obtaining an option to purchase this land for $137,500.00. On March 11, 1965, Pure Oil Company took an option to purchase from Mr. Ott, 12.9 acres of this land extending 1185 ft. along the right-of-way line of Interstate Highway 40, for the purchase price of $110,000.00, and Mr. Ott warranted to the Oil company that the exact description of the land involved was to be as described and as shown on attached strip map prepared by the highway department. Then on March 31, 1965, Mr. Ott exercised his option to purchase from Bay, and on the same day sold this land to ap-pellees for $10,000.00 more than he paid Bay for it. The sale from Ott to the appellees was subject to the option held by the Pure Oil Company.

As to this purchase, appellee Henry testified:

“In either late January or early February, 1965, Mr. Dean and I began negotiating Avith Mr. Bay to buy his property. We were finally successful in buying it, but not from Mr. Ray. We had to buy it from Mr. Bob Ott, because Mr. Ray had sold it to Mr. Ott. In talking to Mr. Ott about it, Mr. Ray told him that we were interested in it too. He told us there was an option on this 13 acres on the west side to Pure Oil 'Company for $110,000.00, that he had signed it and he gave me a copy of it, * * *.
Q. Mr. Henry, do you know anything about the Ott purchase of the Ray property — what has been referred to as the Ray property?
A. Yes, sir.
Q. Did he purchase that under contract first and then get a Deed, or how was it, or do you know?
A. I believe he had an option at first.
Q. To buy it from Mr. Ray?
A. Yes.
# *
Q. Do you know that this option preceded Mr. Ott’s option to Pure Oil?
A. Yes, sir. It did.
Q., And then subsequent to optioning it to Pure Oil, the property was then deeded to him. Is that correct ?
A. Yes, sir.
Q. And on that very same day he deeded it to you and Mr. Dean?
A. Yes, sir.
* # #
Q. Did you know how much Mr. Ott had paid for the property when you purchased it?
A. Yes, sir, we sure did.”

The Bay property, which appellees purchased from Ott, lies on both sides of the right-of-way line for Interstate 40. The main body of this tract is square in shape and was landlocked except for a strip containing eight or nine acres, less than two city blocks in width and about two blocks in length, extending south from the southwest corner of the main body to Highway 64. All of this strip is west of Interstate 40 right-of-way. Immediately east of the main body of the Ray tract, Helen R. Collier owned a 39 acre tract of land. This land lies in an approximate square shape and joins the Ray tract along the west side of the Collier tract. The Collier tract lies north and east of the Interstate 40 right-of-way and north of Highway 64. It was landlocked by the Ray tract on the west and by other land on the other three sides and was without access to Highway 64. The interchange-right-of-way from U. S-. 64 to Interstate 40 cuts across the southwest corner of the Collier tract and the right-of-way continues from where it crosses (overpasses) Highway 64 in a northwesterly direction and diagonally through the Ray tract.

Prior to March 1965, the highway department started negotiating a contract for the purchase of this right-of-way from Helen L. Collier. The contract was first made for the purchase of this right-of-way on May 11, 1965, and although this contract was dated February 16, 1966, it was proofread on March 2, 1965. On April 5, 1965, following the purchase of the 48 acre tract from Mr. Ott by appellees, Mrs. Collier offered to sell to ap-pellees for $500.00 (later raised to $600.00) per acre that portion of her 39 acre tract which she had not already agreed to sell to the highway department. On this point Mr. Henry testified:

“A. ***TWe went out there and talked to her, and she told us what she would sell us and what she would sell it to us for.
Q. And what did she say?
A. She said, ‘I’ll sell yon the back part, everything that’s north of the highway stakes.’
Q.. Everything that’s north of the hig’hway stakes for Interstate 40?
A. Yes.”

Appellees purchased this Collier tract for $600.00 per acre and the deed was delivered on May 14, 1965. Negotiations for purchase of rights-of-way were suspended by the highway department on May 13, 1965, and the landowners weré advised of the suspension on May 14. The highway department later resumed negotiations for the purchase of right-of-way and finally closed the transaction with Mrs. Collier on March 2, 1966, by paying her $62,150.00 for .8.15 acres actually taken for right-of-way.

As to appellant’s first point, there was some evidence in the record to the effect that the trial judge owned an interest in property subject to condemnation for Interstate 40 right-of-way in' a separate action, and appellant contends that he should have disqualified in the trial of the case at bar. There also was some evidence that newspaper articles had been published pertaining to the trial judge’s interest in similar litigation in another case in which he did disqualify, and appellant contends that the jury panel should be quashed. There was no evidence, or anything else, on either of these points abstracted by the appellant, as required by Rule 9 (d) of this court, so we find no error in the trial judge refusing to disqualify in the present case and in refusing to quash the jury panel.

We dispose of appellant’s third point, as to its instruction No. 8, before considering its second point. Appellant’s requested instruction No. 8 is as follows:

“You are instructed that the defendant had a duty to minimize the damages that they might sustain by virtue of the taking hy the Highway Commission, and to that end yon are instructed that if you find that certain acts could have been done, or certain arrangements could have been made by the defendants that would have lessened the damages suffered by the defendants, then they are not entitled to claim those elements today, and you will disregard any element of damages claimed by these defendants for such items as they might have corrected or eliminated.”

In connection with their proof on severance damages, appellees offered evidence that the cost of extending a sewer line across the right-of-way from appellees’ property on the west and south side of Interstate 40 to their property north and east of Interstate 40, would be considerably more ($540.00 per acre) since the construction of Interstate 40 than it would have been before actual construction, and this evidence was submitted to the jury along with the other evidence of damage. This additional cost was in connection with driving or “jacking” a conduit under the highway without interfering with the use of the highway. There was also evidence offered by appellant that the Children’s Colony did, and the appellees could have, mitigated this cost by constructing the conduit for a sewer across the right-of-way after it was acquired and before actual construction was begun, thus greatly mitigating their damages on this item. We conclude that under the evidence on this point, appellant’s instruction No. 8 should have been given and that the trial court erred in refusing it.

The appellant’s second point has given us considerable difficulty and no little concern. Appellant’s requested instruction No. 10 was as follows:

“You are instructed that in your deliberation you are not to consider the property known as the Collier tract, either so far as damages are concerned, or as benefits are concerned, said tract being purchased by the defendants with knowledge of the fact that the possible taldng by the Highway Commission would leave the Collier Tract without access and cut off.”

A great deal of the testimony was directed to the question of whether or not the appellees knew that the highway would be built across their land when they purchased it. They more or less admit that they knew that some of their land would be landlocked by the highway if it was built in the place it was built, but they deny that they Tmew where the highway would be built when they purchased their land.

On this point Mr. Henry testified:

“Q. And when did you say you got the Deed to the Bay property?
A. On March 31, 1965.
Q. Was your transaction with Miss Collier a one day affair, or had you previously agreed to purchase the property from her?
A. It took over a month to wind up the transaction.
Q. So that actually you had agreed to purchase it at some time prior to the actual date the Deed was delivered, is that right?
A. That’s right.
Q. Mr. Henry, in Opening Statement counsel for the Highway Commission stated this property was purchased with your knowledge that the highway would go through there. Will you tell us what knowledge you had at .the time you purchased this property of any location of this Interstate 40?
A. I had no knowledge whatever of any definite location. I knew that a number of surveys had been run, but from general knowledge.”

Common sense is not to be completely abandoned by a trial jury, a trial judge, or this court on appeal, in estimating the extent of knowledge derived from established facts and circumstances.

If Mr. Ott did not know where Interstate 40 would be built when he took his option from Mr. Ray, he obviously thought he knew when he warranted its location in the option he sold to the Pure Oil Company on March 11, 1965, and subsequently assigned to appellees.

Appellee, Ray, testified that he knew there had been other property purchased by the highway department for right-of-way for Interstate 40 both north and south of the property he purchased from Mr. Ott before he purchased the property from Ott. Appellees purchased the Ray tract from Ott subject to the Pure Oil Company option (with the strip map attached). They knew that Mrs. Collier was only selling “everything that’s north of the highway stakes for Interstate 40” when they purchased it. So it is obvious to us, from the record in this case, that if appellees did not know Interstate 40 would cross their land when they purchased it, they were certainly unreasonable if they assumed that it would not.

In the recent case of Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495, we adopted the general rule from Nichols on Eminent Domain, Third Edition, 1962, Volume 4, Section 12.3151, pages 201-204, stated as follows:

“The general rule is that any enhancement in value which is brought about in anticipation of and by reason of a proposed improvement is to be excluded in determining the market value of such land, although there is some authority which, contrariwise, unqualifiedly allows recovery for such enhanced value.”

In the Griffin case we then said:

“While, as pointed out, there is some authority to the contrary, we like the logic of the general rule, and align ourselves with those who have adopted that view.”

In arriving at the true value of land taken and the damages to the land not taken, both sides, the landowner and the condemnor, obtain the services of readily available professional appraisers, all of them well versed in the three appraisal methods, all of them using the same approach, most of them licensed realtors of long experience, and all of them experts in land values.

Appellees argue that by constructing Interstate 40 across the 47 acre tract they purchased from Ott, the appellant has damaged their remaining property outside of the right-of-way in that the part of the 47 acre tract north and east of Interstate 40, and all of the 39 acre tract purchased from Collier, have been severed from that portion of the 47 acre tract lying south and west of Interstate 40, and from access to sewer connection and to Highway 64 at the southwest corner of the 47 acre tract. These were principal elements the expert witnesses took into consideration in arriving at ther conclusions of $91,650.00 overall damage as testified by appellees’ expert, Mr. Barnes, and $44,600.00 enhancement in value as testified by appellant’s expert, Mr. Adams. This leaves a difference between the opinions of these two expert witnesses in the actual amount of $135,250.00 on these two pieces of property purchased for $170,900.00. Such variance in the opinion of experts on the value of real property simply does not make sense, and only points up the unreliable nature of expert opinion on real property appraisals.

Witness Barnes testified for appellees that he compared twenty-five comparable sales with appellees’ land and arrived at a value at the time of taking of $265,000.00 and $173,350.00 after the taking, or a difference of $91,-650.00 as just compensation. This figure was broken down to $26,357.00 as the value of the land actually taken and $65,293.00 for damages to the remainder. The residual damage as testified by Mr. Barnes consisted of $1,000.00 per acre severance damages to the residuals consisting of $260.00 for loss of access to Highway 64, $540.00 for additional cost of extending utilities and $200.00 for distortion of plottage.

According to Mr. Barnes’ testimony, the building of the highway left appellees’ property worth only $2,-450.00 more than they paid for it, but $91,650.00 less than it was actually worth. According to his testimony the 39 acres in the Collier tract, which was bounded by Interstate 40 right-of-way when appellees purchased it, had been damaged by the construction of the highway $400.00 more per acre than the appellees paid for it.

Appellee, Dean, valued the property at $265,000.00 before the taking and at $150,704.00 after the taking, leaving a difference of $114,196.00 as damage to the property. According to Mr. Dean’s testimony, the market value of this land when he purchased it was $94,-100.00 more than he paid for it and that its market value was more than half destroyed by building the highway. He estimates that by building the highway his land is now worth $20,196.00 less than he paid for it and $114,-296.00 less than it was actually worth.

Twenty-five comparable sales were used by the expert witnesses in arriving at the value they placed on the land. No one testified as to the dates or amounts of these sales and po questions were asked as to the dates or prices paid, so we accept the land values, including that placed on the Collier tract, as correct. The residual or severance damage to the tract, however, is another matter. It is obvious to us that appellees knew, or certainly believed, that Interstate 40 would be built exactly where it was built when they purchased all of the Collier tract east of the right-of-way, and added that tract to the tract they purchased from Ott.

When appellees purchased the Collier tract, they only purchased ‘ ‘ the back part. . . north of the highway stakes for Interstate 40.” They were bound to have known what portion of this tract Mrs. Collier had agreed to sell to the highway department, and they were bound to have known that the Collier tract was landlocked when they purchased it and would remain so when Interstate 40 was completed across the tract they purchased from Ott.

The Kentucky Court of Appeals had a very similar case before it in Commonwealth v. Raybourn, 359 S. W. 2d 611. In that case Raybourn owned a motel on a .38 acre tract of land abutting on old Highway No. 60. They learned that the highway was to be changed and they purchased a 1.72 acre tract contiguous to their first tract and through which the new highway was to pass. Right-of-way was taken across the second tract by eminent domain. Treating the two tracts as a unit, the trial court awarded damages in the amount of $5,000.00 for the right-of-way taken in fee and $32,500.00 resulting damages to the remainder. In reversing the judgment of the trial court, the court of appeals said:

“We therefore hold that when it has been proven that the owner of property, on which land is being taken by the power of eminent domain, has purchased such property with knowledge of that fact, he is not entitled, for the purpose of assessing damages, to have it considered a part of other property previously acquired by him.”

There is no substantial evidence in the record before us that the Collier tract of land purchased by the ap-pellees east and north of Interstate 40 was damaged at all by the construction of Interstate 40. We conclude that appellant’s instruction No. 10 should have been given under the evidence submitted at the trial of this case, but since this case must be remanded for a new trial for error in refusing to instruct the jury on minimization of damages as requested in appellant’s instruction No. 8, we are unwilling to say that the Collier tract, as a matter of law, should he completely eliminated from consideration by the jury under proper instructions and under any and all circumstances that may arise at the re-trial of this case. For the errors indicated, this case is reversed and remanded to the Faulkner County Circuit Court for a new trial.

Reversed and remanded.

Bybd, J., not participating.

FoglemaN, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result hut am compelled to dissent from a part of the court’s action. In my opinion, the majority holding that appellant’s requested Instruction No. 10 should have been given has, in effect, changed the law of eminent domain and has created a dilemma for property owners, whose rights as such have been declared higher than constitutional sanction.

This instruction would have foreclosed, as a matter of law, any consideration of the Collier tract by the jury because of a “possible taking by the Highway Commission.” [Emphasis mine] It would have also prevented the jury from determining a factual question on disputed testimony, assuming that the instruction was otherwise proper. I cannot bring myself to agree with the propriety of either effect which would result from the giving of this instruction.

While the result in this particular case might seem to some to be an appropriate one, I cannot help remembering that we are not only deciding cases, but are also establishing precedents. This precedent, I submit, is a dangerous one. It will permit condemnors to announce a proposed project far in advance, make some plans, run some surveys and sterilize the real estate which might be affected. Then, when values are sufficiently depressed by reason of the inhibition of sale or development, the condemning agency may actually take the right-of-way, easement, or property needed and pay “just compensation” at the depressed price. Or, the condemnor may, at its own option, change its plans and leave a landowner with undeveloped property that might have been fully developed and utilized if the project had never been planned. The result reached by the majority makes the proposal of a highway through an owner’s lands an incumbrance thereon and a virtual confiscation.

Appellant’s real contention is that a 39-acre tract known as the Collier tract could not be considered, for the purposes of this case, to constitute a unit composed of it and the Thorpe tract. The basis of its contention is that the Collier tract was purchased by appellees with knowledge that appellant would, when it did condemn this right-of-way for Interstate Highway No. 40, cause •this tract to be landlocked. I submit that this is erroneous if declared as a matter of law. If appellees did not purchase the Collier tract in good faith for the purpose of consolidating lands formerly held under separate ownerships as a unit for future development, but for the sole purpose of enhancing their damages to other lands remaining after the taking, they should not recover. But their knowledge and their motives should have been questions of fact for the jury and not determined as a matter of law as Instruction No. 10 would have done and as appellant argues should be the case. It should also be noted that Instruction No. 10 is based on appellees’ knowledge of the possibility of a taking, not the certainty thereof. This in itself is erroneous.

The Thorpe tract of 47 acres was purchased by ap-pellees from Robert L. Ott on March 31, 1965. The 39 acres were purchased from Mrs. Collier subsequently. She called appellee Henry on April 5, 1965, and appel-lees conferred with her. On the following day they entered into a parchase contract with her, even though she raised her price $Í00 per acre over that she asked the preceding day. The transaction was not closed until May 14, 1965, when a deed was delivered to appellees. No proceedings for the taking of the highway right-of-way were instituted until June 6, 1966.

Appellant introduced evidence to show that the 1957 Arkansas recommendation for the Interstate System included a location for what is now known as Interstate Highway No. 40, east of Conway near its present location. It showed that a public meeting was held in Conway in 1958 to determine the economic impact of the highway location. In 1959, the proposed location was altered slightly at the request of the Arkansas Children’s Colony. Appellant’s witnesses say that they corresponded with the Conway Planning Commission about the location in 1962. It was 1963 before title work was started with Robert L. Ott, an abstractor. Appellant’s evidence tended to show that the right-of-way was staked out in 1964. It was not until 1965 that negotiations with landowners for right-of-way were started, and it appears that appellant was only taking options at that time. It is undisputed that these negotiations were suspended in May 1965 and were not resumed until late 1965.

Appellee Dean is manager of the Steel Chevrolet Company. He said that he became interested in obtaining a new location because of problems of his company. He was looking for land from 1961 to May 1965. The purchase was made with the idea that his company would use a location on Highway No. 64 bordering the land. At the time of the purchase, Pure Oil Company had an option on a portion of the land' purchased from Ott, but released it October 19, 1965. Dean said that Pure Oil Company released the option because it was unable to determine whether there would be a highway there. Dean and Henry testified about their efforts to pin down the location of the highway right-of-way. Henry testified that lie was City Attorney and attorney for The Conway Corporation, a concern that operates the city light, water and sewer systems under lease. Neither the city nor the company had been given any specific information as to the location of the highway, to his knowledge. After the representative of the Pure Oil Company advised Dean that the option was released because he had been to Little Rock and found that the location of the highway was undetermined, Dean and Henry went to Little Rock to see the Director of Highways. About November 3, 1965, they conferred with the Director and Mr. Henry Gray, the head of the Right-Of-Way Department. According to appellees, they were advised that these officials did not know where the highway was going. Previously, on May 3rd, 4th, or 5th, 1965, an attorney for appellant had given Henry a strip map showing a general location of the highway and lands which would be traversed by it. The map bore a stamp carrying these words in capital letters: “DATA SHOWN IS PRELIMINARY AND ROUTE IS SUBJECT TO CHANGE.” This notation was pointed out by the Highway Department attorney, who remarked that the map was preliminary, not final. Henry says that on May 18, 1965, four days after an announcement by the Highway Department that it was stopping negotiations for right-of-way, the same attorney was in Conway to settle a suit and Henry asked what they were going to do. He says that the attorney said: “They’re going west.”

In November or December 1965, Dean and Henry went to Searcy to see Truman Baker, one of the Highway Commissioners. Baker advised, according to appel-lees, that the Commission was still studying the matter and might go east or west of Conway. Later in December, appellees went to Clarksville to see Armil Taylor, another Highway Commissioner, and found that he would not tell them anything. It was not until a conference with the Director of Highways, the Chief Engineer, the Chief of the Right-Of-Way Division and a representative of the Bureau of Public Roads in the spring of 1966 that they were told the highway would go through on the previously proposed route. It was not until April of 1966 that a highway department representative came to them to try to acquire right-of-way.

William B. Young, a representative of Gl-ulf Oil Company who took options along the right-of-way for his company, was called as a witness by appellant. He testified that he took two options on December 3, 1965. One of them was executed by Robert L. Ott. It contained a clause making the option contingent upon preliminary plans for Interstate Highway No. 40 being approved by the Bureau of Public Roads and the right-of-way being acquired according to appellant’s survey. The option would be rendered void if the highway were relocated. The options were not exercised until August 5, 1966. He said that he used the Highway Department as a source of information as to highway location and that on the date he took the options this location was indefinite. His company wanted to carry the matter into 1966 to be sure that its option was on the highway.

The Continental Oil Company also put a clause in its options dated January 21, 1965, extending them until the Highway Department had published its final plans.

None of the testimony of appellees about the uncertainty of the highway location disclosed to them is seriously contradicted. The Assistant Director of the Right-Of-Way Division said that no alternate route was ever seriously considered. None of the persons from whom appellees sought information testified. It is interesting to note, however, that the Chief of the Right-Of-Way Division testified at a pre-trial conference that at the time a certain newspaper article appeared in Conway on May 15, 1965, a “little” consideration was being given to a change in highway route. He said it was thought that the alignment might be moved to satisfy some people who were disgruntled about right-of-way. He said that there was serious consideration of a change at the administrative level and by the Commission, but that when the amount of money already invested in the previous alignment was considered, a decision to proceed on the preliminary route was made before any new surveys were ordered. He admitted telling landowners that “temporarily we were not going to do anything out there.” He also said that he told landowners with whom negotiations had been conducted that, temporarily, appellant would not give them letters of acceptance or contracts of sale and would not take possession ip the immediate future.

The time for which the market value of property is to be determined is the date of taking. The right to deal with property until that time is absolute, and a deprivation of that right constitutes a violation of due process of law, in my opinion. I think that the correct rule in cases such as this is stated in Krier v. Milwaukee Northern Ry. Co., 139 Wis. 207, 120 N. W. 847 (1909). There was evidence in that case that the owner purchased the property shortly before the partial taking with knowledge of the probability thereof. The jury was instructed that they were not to consider whether the owner or his grantor had knowledge as to when the railroad line in question was to be located. In affirming the action of the trial court, it was said:

“A person has the undoubted right to buy or improve realty in the face of a probability that it may be invaded, as in this case. To do so is not evidence of bad faith. Furthermore, the property owner owes no duty to the prospective appropriator to consid'ér .its interests in what he shall do with his own. Whether, in any given case, he proceeds with the idea that the value of improvements made in the face of probable appropriation will enhance the damages he will contingently suffer or not, has nothing to do with the abstract question as to his right to full compensation if appropriation occurs. It is his constitutional right to buy, bold and improve property as be sees fit and rely upon tbe fundamental guaranty that, to tbe extent be shall be deprived thereof under tbe power of eminent domain, he will, as a condition precedent, receive a full equivalent.”

It should be kept in mind that it is tbe taking of property for which compensation is made, not the proposed taking or the contemplated taking.

In Driver v. The Western Union Railroad Company, 32 Wis. 569, 14 Am. Rep. 726 (1873), the landowners acquired their property after commissioners had been appointed at the request of the railroad company to estimate the value of property to be taken and damages to other lands. The property consisted of four lots. They were bought for the building of a factory and mill. The railroad crossed one corner of Lot 7 under license. After the contract of purchase, but before title was taken, the owners were notified that the railroad would need Lot 7 and a representative sought to negotiate for the lot. In spite of this, the owners completed their mill. When Lot 7 was taken, they claimed depreciation in value of the other three lots by reason of the taking of Lot 7. The railroad company contended that the jury should not consider the use to which the owners had put the property or the effect of the taking of the lot upon that use. The following statements of the court in rejecting that contention are most appropriate here:

“* * * And if the company neglected to exercise the right of eminent domain and acquire the property, it certainly could not insist that the owner should .not use or improve it until it actually condemned it under its charter. Nor were the owners bound to await the action of the company, but could make their improvements in view, of course, of the contingency that a portion of the property might be taken for railroad purposes. But upon what principle it can be said the owners had no right to improve their property and build their factory, even though the consequences might be to enhance the damages which the company would be compelled to pay when it finally condemned a portion of the land, we are at a loss to understand. There is no ground for saying that the plaintiffs proceeded in bad faith, and made an expensive improvement merely for the purpose of enhancing the damages which the company would have to pay. They improved their property as they had a perfect right to do, and when the company proceeded to condemn lot 7 under its charter, the plaintiffs insisted that it should pay the damages to the adjoining premises resulting from the taking of this lot for railroad purposes. It seems to us that the claim is a just and proper one; fully sustained by the spirit and language of the charter.
# # #
* * * But what could the plaintiffs do? They desired to improve and use those lots for their factory. True, they knew that the company had instituted proceedings to condemn lot 7, but those proceedings were wholly under the control of the company. The company might abandon .them at any time before the commissioners made their awaid. The only thing they could do was, either to await the action of the company, which might neglect, as it had for years, to condemn the property, or to go on and improve and use it in that way which seemed most for their interests. And when the company should take any portion of such property for the use of its road, they might well rely upon the constitution and the charter for securing them compensation for all damages thereby occasioned. It is said they went forward with their eyes open, and, if they are subjected to inconvenience for the want of suitable room for the prosecution of the business of their mill, it is their own fault. The answer to all this is, that the plaintiffs had the legal and moral right to use and improve their property, and if the necessities of the company for the use of lot 7 were such that it could afford to pay them the damages resulting from its acquisition, then the company could acquire it by the proper proceedings. But we fail to see any ground for imputing to the plaintiffs any negligence or wrongful use of their own in what was done by them.”

There is a very close analogy here to cases arising where an owner has made improvements on property after he has either been notified or has information that his property will be taken through eminent domain. The general rule in this regard is well stated at 27 Am. Jur. 2d 105, Eminent Domain, § 294, as follows:

“As a general rule, knowledge of the fact that a public improvement is proposed which will result in the taking of his land does not deprive an owner from recovering the value of buildings subsequently erected, since even though preliminary steps have been taken, the making of the contemplated improvement may be abandoned, and it would be highly unjust to deprive an owner of the right to make in good faith the best use of his property except at his peril.”

The rule is elaborated on somewhat in 4 Nichols on Eminent Domain 381, § 13.14:

“There has been considerable discussion of the practice of ‘planting’ buildings upon land expected to be taken for the public use with the intention of making a claim for damages when the taking occurs. Merely because an owner of land is aware that a public improvement has been proposed which will result in the taking of his land, he is not to be deprived of the right to recover the value of buildings subsequently erected. It would be highly unjust to deprive an owner of the right to make the best use of his property except at his peril merely because it lies in the path of one of the many public improvements which are so often discussed and projected without being actually consummated for many years. In this view it has been held that even though the improvements were in an incomplete state at the time of the initiation of a condemnation proceeding but were completed prior to the time that title actually vested in the condemnor, the owner was entitled to the full value of such improvements.”

In State v. Carragan, 36 N. J. 52 (1872), a landowner had been denied compensation because he erected buildings on the line of a street laid out by map and bridge commissioners as a part of a scheme for streets and avenues, the opening of which depended on a variety of circumstances. In reversing, the court said:

“We do not think, while the opening of the street was thus in abeyance, the land owner was deprived of the right to use his property in any lawful manner. To so hold would be in substance to allow a taking of private property for public use without making just compensation therefor. If the improvements should be made in bad faith, with intent to throw an undue burden on the public, another element would enter into the consideration of the question, which might perhaps produce a different result. There is however no such question in this case.”

Statutes denying compensation for buildings erected after the filing of a map of a proposed street across the land on which they were erected, even though condemnation proceedings have not been commenced, have been held unconstitutional. Edwards v. Bruorton, 184 Mass. 529, 69 N. E. 328 (1904); Forster v. Scott, 136 NY 577, 32 N. E. 976, 18 LRA 543 (1893); Moale v. Mayor, 5 Md. 314, 61 Am. Dec. 276 (1854).

The reasons given for holding these acts unconstitutional are appropriate here. For example, the Maryland court, in Moale v. Mayor, supra, said:

“* * * Under these two acts, those of 1817 and 1838, a person for an indefinite space of timé may be deprived of the use of his property, because it lies on the bed of a street designated on the plot of the city, and eventually find that whilst he has paid taxes, and been denied the advantages to which he was entitled from the proper use of his land, that the street laid down on the plot has been abandoned. Sueh a state of things is repugnant to every notion of justice and cannot obtain our consent.”

In Forster v. Scott, supra, where a prospective purchaser declined to purchase the property on the basis that the filing of the map showing a proposed street constituted an encumbrance, the New York court said:

“* * * Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment that materially affect its value, without legal process or compensation, it deprives him of his property, within the meaning of the constitution. All that is beneficial in property arises from its use and the fruits of that use, and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession.
# # #
As the plaintiff in the case at bar was virtually deprived of the right to' build upon his lot by the statute in question, and as this circumstance obviously impaired its value, and interfered with his power of disposition, it was to that extent void as to him, and created no incumbrance upon it.”

In Edwards v. Bruorton, supra, the Massachusetts-court said:

“* * * This was intended to prevent any use of property inconsistent with the plan after the filing of a plan and before the laying ont of a way. If it conld have that effect it might materially interfere with the nse which an owner might desire to make of his estate for many years, after the filing of a plan and before the laying ont of a way. The statute prescribes no compensation for this interference with private property. The Legislature cannot constitutionally so interfere with the use of property without giving compensation to the owner.”

A statute which would have denied compensation to an owner or occupier who erected a building or made any improvements within the limits of any proposed highway, after the width and lines thereof had been designated, approved by the Governor and recorded in the office of the recorder of deeds was recently held unconstitutional by the Pennsylvania Supreme Court. Commonwealth Appeal, 422 Pa. 72, 221 A. 2d 289 (1966).

The court there said:

“All of these facts indicate, at least, extremely careless procedures by the Department of Highways. They could, at most, indicate an actual condemnation as appellees claim. While we are not unmindful of the maxim that things are what they are, not what they are said to be, we nevertheless hestitate to impute an exercise of the power of condemnation to the sovereign under the circumstances here of a longstanding practice not considered to be a ‘taking’ and of somewhat ambiguous statutory procedures. Rather, we believe it best to leave both parties as they began: the Commonwealth having done nothing to effect a ‘taking’ and appellees having full right to do whatever they wish with their property without detriment to their right to damages if the Commonwealth subsequently ‘takes’ their property. ’ ’

There is also a close analogy to the planting of crops on lands, even after a petition for condemnation has been filed but before the condemnor has become bonnd by the taking by paying compensation or otherwise. When this is done by an owner or tenant in good faith, and not with the sole purpose of enhancing damages, recovery of the value of such a crop destroyed or damaged by the condemnor upon actual taking is allowed. 27 Am. Jur. 2d 105, Eminent Domain, § 294.

A lessee, with notice of the fact that a railroad line had been located over -the leased lands, was held to be entitled to recover for destruction of his crops by the entry of the railroad company on the premises. Lafferty v. Schuylkill River East Side R. Co., 124 Pa. 297, 3 LRA 124 (1889). There the court said:

“The reason for this is that it may be months or even years after the location of the line before the company will be ready to enter upon the land for purposes of construction or to take the steps necessary for the assessment of damages, and the owner has a right to remain in possession until actual appropriation of his land by the company. This was held in Gilmore v. Pittsburgh Railroad Company, 104 Pa. 275, and has been recognized in other cases.”

Of course, if the owner’s sole purpose is the enhancement of his damages upon a subsequent condemnation, he should not recover for such improvements. 27 Am. Jur. 2d 105, Eminent Domain, § 294; 4 Nichols on Eminent Domain 383, § 13.14.

Although there are cases holding that good faith is not material te. g., Briggs v. Labette County, 39 Kan. 90, 17 Pac. 331 (1888); In Re Baychester Avenue, 105 NYS 241 (1907)], I think there is no doubt but what the good faith of the owner is material and should be considered in determining whether his actions were motivated by his desire to make the best use of his property and not to enhance his damages.

The question whether two adjoining lots or tracts shall be treated as one in a condemnation proceeding is one of fact, unless the undisputed evidence as to their use and situation is such as to leave no room for different views upon the question. In Re Queen Arme Boulevard, 77 Wash. 91, 137 Pac. 435 (1913); Pittsburg, C. C. & St. L. Ry. Co. v. Crockett, 182 Ind. 490, 106 N. E. 875 (1914); Paulson v. State Highway Commission, 210 Iowa 651, 231 N. W. 296 (1930); Rath v. Sanitary Dist. No. 1 of Lancaster County, 156 Neb. 444, 56 N. W. 2d 741 (1953).

In the present background, this statement of the Supreme Court of Indiana in State v. Stabb, 226 Ind. 319, 79 N. E. 2d 392 (1948), is appropriate:

“Appellant’s tendered instruction No. 16 was to the effect that in an action involving damages to property it is the duty of the party claiming damages to mitigate or lessen damages by reasonable action rather than to increase the same; and that if the ap-pellees, with knowledge of appellant’s intent to acquire the property in question for the construction of a highway, did or performed acts that would tend to increase the amount of the damages, then any damages flowing from such acts could not be recovered. Appellant insists this instruction should have been given for the reason that the evidence discloses that the retail store was closed from 1942 until the spring of 1946, and that it was reopened only after appellees had been approached by the appellant with reference to the procuring of the property on which the store was located for the construction of the highway. All this evidence discloses is that appellees had knowledge of the fact that a public improvement was proposed which would result in the taking of their land. Such knowledge did not deprive the appellees of the right in good faith to make the best use of their property. 18 Am. Jur. Eminent Domain, § 256. There is not the slightest evidence of bad faith on the part of the appellees in so reopening their store.”

In considering the factual situation here, it must he remembered that the purchases of the Thorpe and Collier tracts were virtually simultaneous.

Since appellant did not submit an instruction which permitted appropriate questions of fact with reference to the acquisition of the Collier tract to be determined by the jury, the action of the trial court was not error, in my opinion.

While I do not agree that there was no substantial evidence of damage to the Collier tract (treated as a part of a unit with the Thorpe tract), the significance of the lack of such evidence in relationship to the giving of appellant’s Instruction No. 10 escapes me. That instruction is based upon purchase of the tract “with knowledge of the fact that the possible taking by the Highway Commission would leave the Collier tract without access and cut off.” Upon retrial, if there should be a lack of evidence of any damage to the Collier tract as a part of the unit or a lack of evidence that the two tracts constituted a unit, the giving of the instruction might be harmless error, but I cannot conceive of its being a correct instruction because of the reason given therein. We should not indicate that the instruction should be given if the evidence is the same upon a retrial.

I further do not subscribe to the statement in the majority opinion as to the unreliability of expert testimony, even though there are often wide ranges which are difficult to harmonize.

I concur in the holding that a landowner is required to take any reasonable step to minimize damages to his remaining lands and in the absence of specific objections pointing out error in the wording of Instruction No. 8 itself, that it should have been given.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    ARKANSAS VALLEY INDUSTRIES, INC. v. Russell C. ROBERTS, Judge
    5-4530
    425 S. W. 2d 298
    Opinion delivered March 18, 1968

      Rose, Meek, House, Barron, Nash & Williamson, for petitioner.

      Phil Stratton, for respondent.
   Conley Byrd, Justice.

This petition for writ of prohibition questions the venue of Faulkner County for the maintenance of a suit by Bill Graddy against petitioner, Arkansas Valley Industries, Inc., containing four counts: (1) abuse of prosecution, (2) malicious prosecution, (3) vexatious suit, and (4) false imprisonment.

In addition, the complaint alleges that Bill Graddy suffered injury to his person in the nature of heartache, mental anguish, nervousness, sleeplessness, nightmare and shock.

Arkansas Valley Industries, Inc. has no officer residing in Faulkner County and no branch office or other place of business there.

Petitioner contends that the venue is governed by Ark. Stat. Ann. §§ 27-347 and 27-605 (Repl. 1962), which provide:

“27-347. Service on corporate agent at branch office. — Any and all foreign and domestic corporations who keep or maintain in any of the counties cf this State a branch office or other place of business shall be subject to suits in any of the courts in any of said counties where said corporation so keeps or maintains such office or place of business, and service of summons or other process of law from any of the said courts held in said counties upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon said corporations and shall be sufficient to give jurisdiction to any of the courts of this State held in the counties where said service of summons or other process of. law is had upon said agent, servant or employee of said corporations. [Act Apr. 1, 1909, No. 98, § 1, p. 293; C. & M. Dig., § 1152; Pope’s Dig., § 1369.]”
“27-605. Actions against corporations. — An action, other than those in sections 84, 85 and 90 [§§ 27-601 — 27-603], against a corporation created by the laws of this State may be brought in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides ; but if such corporation is a bank or insurance company, the action may be brought in the county in which there is a branch of the bank or agency of the company, where it arises out of a transaction of such branch or agency. [Civil Code, § 92; C. & M. Dig., § 1171; Pope’s Dig., § 1393].”

The respondent contends that the action is governed by Ark. Stat. Ann. § 27-610 (Repl. 1962), which provides:

“27-610. Actions for personal injury or death.— All actions for damages for personal injury or death by wrongful act shall he brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service. [Acts 1939, No. 314, § 1, p. 769.]”

In Robinson v. Missouri Pac. Transp. Co., 218 Ark. 390, 236 S. W. 2d 575 (1951), Robinson alleged that Missouri Pacific Transportation Company had unlawfully and maliciously conspired to bring about his discharge by manufacturing false testimony and lodging false charges of breach of trust in failing to account for fares collected by Robinson; that as a result of said conspiracy he was deprived of his employment and his present and future earning capacity; and that the good name and reputation which he formerly enjoyed were_thereby defamed, resulting in great shame, humiliation and mental anguish. The railroad company argued that the venue was controlled by Ark. Stat. Ann. § 27-610, supra, but in holding to the contrary we pointed out that in determining'the applicability of § 27-610 this court had distinguished between actions for physical injuries to the body and those involving injuries resulting from malicious prosecution, libel and other actions for defamation of character in general.

In Monk v. Ehret, 192 Cal. 186, 219 Pac. 452 (1923), there was under consideration a statute similar to ours, and after reviewing the history of the enactment of such statutes, it was concluded that the term “personal injuries” in the statute was limited to corporeal or physical injuries by reason of any violence. That court, in Plum v. Forgay Lumber Co., 118 Cal. App. 76, 4 P. 2d 804 (1931), followed the same construction of the term “personal injury” and held that an action for malicious prosecution and false arrest could not be maintained in the county in which the arrest occurred.

Other courts have held to the contrary. See Hatcher v. Southern Ry. Co., 191 Ala. 634, 68 So. 55 (1915).

However, we feel that under Robinson, supra, we are committed to the view expressed by California in Monk v. Ehret, supra, and consequently find that the Faulkner Circuit Court is without venue. Nor can we find anything in the allegation with reference to mental anguish which would change this result, since this was also a factor involved in the Robinson case.

Therefore the temporary writ heretofore issued in this case is made permanent.


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

text:
    ARKANSAS POWER & LIGHT CO. v. Joe A. MAYO, et al
    5-4481
    425 S. W. 2d 531
    Opinion delivered March 25, 1968

      Anderson & Anderson and House, Holmes & Jewell, for appellant.

      Charles B. Roscopf, for appellee.
   Carleton Harris, Chief Justice.

Appellees, Joe A. Mayo and wife, are the owners of a 240-acre farm in Phillips County, Arkansas, consisting of two tracts. Arkansas Power and Light Company, appellant herein, condemned a right-of-way, 1,572 feet in length and 125 feet in width, containing 4.51 acres, the right-of-way being off the northeast side of Tract No. 1, and the west side of Tract No. 2. In determining the amount of damages to be awarded appellee, the jury returned a verdict in the amount of $4,059.00. Appellant brings this appeal on the ground that the court committed error in its instructions as to damages.

The instructions complained of are the Defendants’ Instruction No. 1, and the Court’s Instruction No. 1, which reads as follows:

Defendants’ Instruction No. 1
“You are instructed that Arkansas Power & Light Company acquires by this Condemnation Proceeding the power to make such use of the 4.51 acre right-of-way across the property of the Defendant as its present and future needs require for the purposes for which the right-of-way is condemned, and Arkansas Power & Light Company is liable to the landowners as though the lands were taken in fee simple or absolute title.”
Court’s Instruction No. 1
“The jury is instructed that in determining the amount of just compensation to be paid the Defendants in this case, you are to determine from the evidence in this case the fair market value of the whole farm, considering it as a unit immediately before the taking and then determine the fair market value of the whole farm, considering it as a unit immediately after the taking and the difference between the fair market value before and after the taking is the amount of the just compensation you should award.”

Appellant objected to the giving of the last instruction, and offered its own instruction as follows:

“You are instructed that the compensation to which the defendants are entitled in this cause is the fair market value of the lands within the right-of-way determined as of the date of taking, together with the difference, if any, in the fair market value of the remainder of the lands immediately before and immediately after the taking.”

This instruction was refused by the court.

The company argues that the court clearly committed error in that the two instructions given, taken together, in effect directed the jury to compensate ap-pellees twice for the same land. We think there is merit in appellant’s argument, at least, to the extent that the jury may well have been misled by the two instructions.

In Baucum v. Arkansas Power and Light Company, 179 Ark. 154, 15 S. W. 2d 399, which also involved a right-of-way easement, this court held that compensation for the full market value of the land taken by condemnation is recoverable, and that damages to lands other than that taken is the difference, if any, between the market value of such land before construction and after construction. This rule was reiterated in Arkansas Louisiana Gas Company v. Burkley, 242 Ark. 662, 416 S. W. 2d 263.

In the case before us, Defendants’ Instruction No. 1 told the jury that the power and light company was liable to the landowners as though the lands were taken in fee simple or absolute title, i. e., the company was liable for the full value of the 4.51 aeres embraced in. the condemned strip. Obviously, the Court’s Instruction No. 1 also includes the value of the strip condemned, as well as compensation for damages to the remainder of the farm. We recognize that the first instruction may have been intended only to point out that the jury must consider the lands as being absolutely taken, instead of the company only acquiring an easement, but we are of the view that the two instructions,' taken together, could have been quite confusing. Certainly, it is doubtful that members of a jury, untrained in the law, would fully understand that the method of fixing damages was covered entirely in the Court’s Instruction No. 1, and that Defendants’ Instruction No. 1 was not meant to be used for that purpose (if indeed such is the case). Actually, the proffered instruction by appellant more clearly expresses the law than the Court’s Instruction No. 1, albeit- that instruction, standing alone, was correct in stating the measure of damages.

As pointed out in Dr. Pepper Company v. DeFreece, 234 Ark. 450, 352 S. W. 2d 579, we cannot say, with certainty, that the jurors were confused under the instructions and because of that fact gave judgment for a larger sum than would otherwise have been granted (the appellant thus being prejudiced), but we are less sure that they were not.

The judgment is reversed, and the cause remanded for proceedings not inconsistent with this opinion.

Foglemah, JoNes and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. While I agree that the giving of defendant’s Instruction No. 1, together with the instruction offered by appellant, would have been preferable, I cannot see how any prejudice could possibly have resulted from the instruction given by the trial judge. Nor can I see how defendant’s Instruction No. 1 and the court’s Instruction No. 1, given together, could possibly have caused confusion. Nor do I see how they can be said to call for double compensation.

The rnle of Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S. W. 2d 399 (reiterated in Arkansas Louisiana Gas Co. v. Burkley, 242 Ark. 662, 416 S. W. 2d 263), is a proper one for the reasons given in the opinion announcing it. If a jury is not told that the taking must be treated as if it were in fee simple, there is a real danger that it will approach the determination of either the “fair market value of the whole farm, considering it as a unit immediately after the taking,” or “the fair market value of the lands within the right-of-way” by attempting to evaluate the right-of-way on the basis of an easement rather than as a fee simple title. Such an evaluation would be proper where the easement does not give the condemnor virtually unlimited right to use the affected areas at any time. Minkowitz v. City of West Memphis, 241 Ark. 207, 406 S. W. 2d 887. In a case such as the one now before us, I feel that the trial court would have committed prejudicial error by failing to give an instruction such as defendant’s Instruction No. 1.

I can find no satisfactory rationalization to distinguish between the court’s Instruction No. 1 and the instruction offered by appellant in a case where the con-demnor cannot or does not claim offsetting benefits. To determine the fair market value of the remaining lands would necessarily eliminate the fair market value of the lands taken. The basis for the determination would be the value of the remaining lands only. The fair market value of the unit before the taking would necessarily include the fair market value of the lands taken. I fail to see the difference between these two formulae:

1. (Pair market value of original unit) — (Pair market value of lands remaining) equals Just compensation;
2. (Value of lands taken) plus (Difference in fair market value of remaining lands immediately before and immediately after the taking) equals Just compensation.

The giving of defendant’s Instruction No. 1 could not have stated the Baucum rule in simpler language. The majority does not say that either instruction given is erroneous. We should not say that the action of the trial court in giving two correct instructions is erroneous unless they are irreconcilably conflicting. Instructions should not be considered as in conflict where they can be harmonized, Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, LRA 1915D, 1021. I can find no more conflict here than there would be in giving an instruction to a jury that a tortfeasor is liable for any damages of which his negligence is a proximate cause and then following with an instruction telling the elements by which to measure the damages. A ready example is found in AMI No. 2401 which provides illustrative instructions for a right-angle automobile collision. In that suggested set of instructions, we find that the first two paragraphs of Instruction 13, read as follows:

“If you should find that Mr. Miller was not guilty of negligence which was a proximate cause of the occurrence, then he is entitled to recover the full amount of any damages you may find he has sustained which were proximately caused by any negligence of Mr. Anderson.
If you should find that Mr. Anderson was not guilty of negligence which was a proximate cause of the occurrence, then he is entitled to recover the full amount of any damages you may find he has sustained which were proximately caused by any negligence of Mr. Miller.”

Then we find Instruction 14. telling the jury how to arrive at the amount of Miller’s recovery and Instruction 15. telling the jury how to arrive at the amount of Anderson’s recovery. Six elements of damage are listed for Miller’s recovery and only four for Anderson. Oer-tainly. we would not say tliat the jury would he so confused that upon finding for Anderson they would measure his recovery by the elements listed for Miller. Nor would we say that the words “recover the full amount of any damages you may find he has sustained which were proximately caused by any negligence of Mr. Miller” were so confusing that the jury might allow him to recover non-compensable damages. [Emphasis mine] For example, a jury might feel that either Miller or Anderson was entitled to recover damages for the loss of use of his automobile under a broad application of the term “any damages.” But this element is non-compen-sable. See Kane v. Carper-Dover Merc. Co., 206 Ark. 674,177 S. W. 2d 41. The jury could only include loss of the use of the automobile by ignoring the instruction on the measure of damages. Similarly, the jury here could only award “double damages” by ignoring the instruction on the measure of compensation given by the trial judge. I can see no real difference between this example and the present case.

It is common knowledge that juries are told that they are to follow the court’s instructions as a whole and to avoid singling out any of them. See AMI 101 (b). I believe that the ordinary jury would be intelligent enough that confusion would not result from the two instructions given. We should not assume that a jury will disregard the court’s cautionary instructions, as it would have to do to confuse the measure of compensation in the case at bar. I have not been able to find any case where reversal was based on the giving of two correct instructions. Oases holding that two conflicting instructions are misleading* and prejudicial are based on situations where at least one of the instructions is incorrect. It is true that separate and distinct instructions, complete in themselves and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole. Even so, correct instructions which are apparently conflicting must be treated by us as a harmonious whole if, from the language used or the relation which the instructions are made by the whole charge to bear toward each other, they can be so read. St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375.

It is well known that the retrial of cases is expensive to litigants and to counties, and that it is difficult and trying for attorneys, judges, witnesses, and jurors as well as litigants. We should exercise great caution to find genuinely prejudicial error before we remand a case to a circuit court for retrial. Not only do I not find prejudice, but I cannot even find error. It is quite possible to harmonize the two instructions here.

I am authorized to state that Byrd, J., joins in this dissent.


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

text:
    CITY OF MANILA et al v. Rose DOWNING
    5-4532
    425 S. W. 2d 528
    Opinion delivered March 25, 1968

      H. G. Partiów Jr., for appellants.

      Oscar Fendler, for appellee.
   George Rose Smith, Justice.

This is a suit brought by the appellee, the duly elected recorder of the city of Manila, for a declaratory decree determining the validity of a 1967 ordinance by which the city attempted to reduce her salary during her term of office. The controlling issue is whether Act 124 of 1961 (a) merely amended, a section of an 1875 statute on the subject, as Mrs. Downing contends, or (b) repealed it altogether, as the city contends. This appeal is from a declaratory decree upholding Mrs. Downing’s contention that the 1875 statute, as far as cities of the second class are concerned, is still in force.

Manila is a city of the second class. The parties agree that before the passage of Act 124 of 1961 the governing statute, applicable to cities of the first and second classes and to towns, was a portion (the 6th to 8th sentences) of § 86 of Act 1 of 1875, adopted on March 9, 1875, which read as follows:

“The emoluments of no officer whose election or appointment is required in this act, shall be increased or diminished during the term for which he shall have been elected or appointed. Nor shall any change of compensation affect any officer whose office shall be created by authority of this act, during his existing term, unless the office be abolished. No person, who shall have resigned or vacated any office, shall be eligible to the same during the period of time for which he was elected or appointed to serve, where, during the same time the emoluments have been increased.” Ark. 'Stat. Ann. § 19-907 (Repl. 1956).

The question for our decision is the extent to which the foregoing statute was amended or repealed by Act 124 of 1961, which we quote in full:

“AN ACT to Amend Act March 9, 1875, No. 1, Section 86 (6th to 8th Sentences), Page 1 [Ark. Stats. (1947) Sections 19-907]; to Permit Increase of Salaries of Municipal Officials During Their Terms.
“Be It Enacted by the General Assembly of the State of Arkansas:
“SECTION 1. Act March 9, 1875, No. 1, Section 86 (6th to 8th sentences), Page 1 [Ark. Stats. (1947) Sections 19-907] is amended to read as follows :
“ ‘The salaries of officials of first class cities may be increased but not decreased during the term for which such officials have been elected or appointed.’ ”
“APPROVED: February 22, 1961.” Ark. Stat. Ann. § 19-907 (Supp. 1967).

The city of Manila, citing Brockman v. Board of Directors of Jefferson County Bridge Dist., 188 Ark. 396, 66 S. W. 2d 619 (1933), insists that whenever a section of an existing statute is “amended to read as follows,” there is necessarily a repeal of any language in the earlier section that does not appear in the re-enactment.

That statement is usually true, but not always. Chief Justice McCulloch, in an opinion of great lucidity and persuasiveness, made the point in State ex rel. Atty. Gen. v. Trulock, 109 Ark. 556, 160 S. W. 516 (1913), that even an amending-to-read-as-follows statute will .not be construed to repeal omitted language in the earlier act if it clearly appears .that no such repeal was intended by the legislature. The solution to this problem of interpretation always depends upon the answer to. "that central question to which all other principles of statutory construction are secondary: What was the intention of the legislature?

Here, as in the Trulock case, it is too plain for argument that the legislature did not mean to repeal the earlier section in its entirety. The 1875 enactment applied to all cities and towns and provided comprehensively that the emoluments of specified officers should not be increased or diminished and, in effect, that that statutory prohibition could not be evaded by the officer’s resignation and reinstatement. By contrast, Act 124 of 1961 applies only to cities of the first class and simply declares, both in its title and in its text, that the salaries of officials in those cities may be increased but not decreased during their terms of office.

We find it impossible to believe that the members of the General Assembly, in approving Act 124, chose the single sentence in the body of that act as a roundabout way of saying not only that cities of the first class might increase but not diminish the compensation of their officers during their terms of office, but also that cities of the second class and incorporated towns should no longer be subject to the salutary prohibition against increasing or decreasing the salaries of their officers during their terms. We conclude, in harmony with the Trulock decision and the later cases that have followed it, that the 1961 act impliedly repealed the 1875 legislation only to the extent that the two are in conflict.

The appellants also argue that Act 124 is contrary to Article 5, § 23, of the Constitution, which provides that no law shall be revived or amended or the provisions thereof extended by reference to its title only. We find no violation of that provision, which, was intended to prohibit legislation drafted “in snch form that the legislator conld not determine what its provisions were from an inspection of it.” Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384 (1886). As we are interpreting-Act 124, it contained no hidden meaning not apparent on the face of the act.

This same objection was made to the statute that we upheld in the Trulock case, supra. Judge McCulloch fully answered the objection by pointing out that “under the construction we place upon [the later statute], no part of the old section is revived or extended, hut the part which is the subject of this controversy is, as we have already explained, left unamended. It is untouched by tbe amendatory statute, which is, as we have already said, only partial in its operation.” That language exactly fits the case at bar.

Affirmed.

HaRris, C. J., and Fog-lemaN, J., dissent.

John A. Fogleman, Justice,

dissenting. I cannot agree that the exception to the rule that amending a statute “to read as follows” repeals language not carried forward in the amending statute is applicable here.

The exception in State v. Trulock, 109 Ark. 556, 160 S. W. 516 (1913) is based on quite a different situation from that existing here. In that case, the intent of the legislative branch was clear. To have followed a literal interpretation of the amended section of the original act by omitting the language providing for the appointment of improvement district commissioners would have resulted in rendering inoperative not only the omitted language but other parts of the amending statute as well as other parts of the original act and thus abrogate the whole law on the subject of improvement districts. This effect was contrary to the apparent intent of the amending act because its subsequent sections referred specifically to the commissioners an'd their duties. There the act did not state any intention to either amend or repeal the sections of the old act which wonld have been, in effect, repealed. The court there said that a literal construction would have effected a repeal of the entire statute on the subject of improvement districts rather than an amendment of them. It was said that this result would have been contrary to the intent affirmatively shown by the title to the act.

I cannot see a parallel situation here. I think that the language of the text of the act clearly shows an intention to prevent only cities of the first class from decreasing official salaries and to eliminate all other restriction on the raising or lowering of the emoluments of municipal officials. Certainly the title of the act is not controlling, but if resort is had to it because the legislative intent expressed in the body of the act is unclear, I cannot find any limitation of the act’s effect to cities of the first class. As I read the title, the purpose is to amend the specific section (or sentences) quoted in the majority opinion and to permit increase of salaries of municipal officials. Of course, the scope of the words “municipal officials” includes officials of cities of the second class and incorporated towns.

Furthermore, a literal construction .of this act does not conflict with other sections of the same act, nor with other sections of the act amended. It would only affect the particular sentences purported to be amended. This is quite different from the situation in the Truloch case.

The wisdom of the elimination of other restraints on cities which were contained in the original section is not for us, but for the General Assembly.

I would reverse the trial court.

I am authorized to state that Harris, C. J., joins in this dissent.


author: Paul Ward, Justice.

text:
    Trennon BOBO et al v. THE FIRST NATIONAL BANK of Hope, Arkansas
    5-4500
    425 S. W. 2d 521
    Opinion delivered March 25, 1968

      Shaver, Tackett & Jones; By: Damon Young, for appellants.

      James S. Pilkinton, for appellee.
   Paul Ward, Justice.

This appeal is taken from a chancery decree setting aside a warranty deed on the ground it was executed to defraud a creditor. Also, a matter of procedure is involved on cross-appeal. The appellants are Trennon Bobo, Donnie Bobo, and Ora Bobo. The appellee is the First National Bank of Hope, Arkansas. Hereafter, for brevity, we will refer to them in the above order as Trennon^ Donnie, Ora, and the bank.

The 'background facts, set out below, are not in dispute.

Trennon and his brother Donnie executed a note to the bank for $2,780.50, payable as follows: $78 per month for the first thirty-five months and $50.75 for the thirty-sixth month. All payments were made up to May 10, 1966 when there was a default, and no other payments have been made. The note was secured by a mortgage on a 1966 Ford Mustang car. On the last named date Trennon conveyed, by warranty deed, twenty acres of land to Ora.

The bank filed suit in the chancery court to collect the balance due on the note, and to have the car sold and the proceeds applied as a credit. The decree of the court was in accord with the bank’s complaint as to the above items, and no objection is here made by appellants.

Also, in the same complaint, the bank alleged that the deed to Ora was executed ‘‘in an effort to avoid payment of the said indebtedness . . .”, and asked the court to declare the same “null and void as against plaintiff”. The bank also asked “that title to said property (the land) should be declared in defendant, Trennon Bobo, for satisfaction of any judgment that may be rendered ...”

For answer to the above complaint, appellants entered a general denial.

After a hearing the trial court held the deed to be a fraudulent conveyance, and void as to appellee. On appeal, appellants ’ only contention for a reversal is that “there was no evidence to support such a finding”.

We are of the opinion that the trial court erred in holding the conveyance void since we find no evidence in the record to support such holding. There is no evidence to show, that Ora was related to Trennon, that the consideration paid by Ora was inadequate or, that Trennon was financially embarrassed and unable to pay any judgment rendered against him in this litigation. All the above is virtually conceded by appellee, but it contends the case should be affirmed on our holding in Keck v. Gentry, 238 Ark. 672, 384 S. W. 2d 242. There we said, in effect, that when a person who is in debt makes a voluntary conveyance to a near relative, the transfer is presumed to be fraudulent. Patently the Keck case is not controlling here because appellee did not prove Ora was a “near relative” or that the conveyance was “voluntary”.

Cross Appeal. During the trial below, when appel-lee had introduced its testimony appellant chose not to introduce any testimony — to the surprise of appellee. At that time appellee realized it had failed to show Ora (grantee in the deed.) was the mother of. Trennon (grant- or in the deed), apparently thinking everyone (including the Judge) knew she was the mother of Trennon. Thereupon appellee (at the same term of court) filed a Motion, requesting the court to reopen the record to allow it to introduce testimony to show Ora was the mother of Trennon. The Motion was denied.

For reasons hereafter set forth, we conclude that the trial court erred in refusing to allow appellee to make the desired proof.

(a) It is apparent from the record that appellee, in good faith, believed it was understood that Ora was the mother of Trennon. The bank stated in its Motion that this was understood by counsel and the court from the beginning of the trial. This is confirmed by language in the court’s “Memorandum Opinion” where we find this statement: “. . . he made a voluntary conveyance to his mother, Mrs. Ora Bobo”.

(b) A showing by appellee that Ora was the mother of Trennon, together with other testimony in the record, would have made a prima facie case, shifting the burden on appellants to go forward with the evidence. In the Keck case, supra, we quoted language to that effect. Also, in that case, we find this further statement:

“These plaintiffs proved that Gentry owed a substantial sum of money and that he conveyed 680 acres to his wife. That proof was sufficient to make a prima facie cáse, shifting to the defendants the burden of going forward with the evidence.”

In the case before us here it is undisputed that Trennon owed a substantial sum of money and that he conveyed the land to Ora. When, and if, appellee proves Ora was Trennon’s mother, then the burden will be on appellants to go forward with the evidence to show Trennon was not insolvent.

The decree is reversed on direct and cross appeal, and the cause is remanded for further proceedings consistent with this opinion.

Byrd, J., dissents in part.


author: Lyle Brown, Justice.

text:
    Snow WILSON III v. Madeline F. CAMPBELL
    5-4517
    425 S. W. 2d 518
    Opinion delivered March 25, 1968

      Swift & Alexander, for appellant.

      D. Fred Taylor and Ralph E. Young, for appellee.
   Lyle Brown, Justice.

This appeal comes from a judgment for $2,500 awarded the landlord on the basis of a crop rent note executed by the tenant. Appellee, Madeline F. Campbell, was- the landlord, and appellant, Snow Wilson III, was the tenant. Wilson challenges the judgment on the ground that he purchased the leased lands at a foreclosure sale and before the annual rent note became due on November 15, 1965.

When Madeline Campbell bought the lands in 1963 by quitclaim deed, there was an outstanding mortgage in favor of Merchants Hotel Supply, Inc., for approximately $40,000. Madeline Campbell leased the lands to Wilson for the year 1965 on a cash rent basis. Wilson executed a note due November 15, 1965, went into possession, and made a crop. That crop was destroyed by hail, and Wilson collected $9,800 crop insurance in August. In February, 1965, Merchants filed a foreclosure suit. The principal defendants were Madeline Campbell’s grantors, Ben and Eleanor Flannigan. Appellant and appellee were made parties, but did not answer. In Maly 1965 judgment was taken against tbe Flan-nigans and a lien was imposed on tbe lands. No receiver was- requested, and crops were not mentioned. It was decreed that all right, title, and interest of appellant and appellee were barred. Tenant Snow Wilson was tbe successful bidder at tbe commissioner’s sale, which was confirmed on October 8, 1965. Thereafter he held title beyond the due date of the crop note.

The principal question to be resolved is whether Snow Wilson is obligated to Madeline Campbell for the 1965 crop rent or any portion thereof. That problem poses the question as to when the rent accrued. In Rogoski, Admr. v. McLaughlin, 228 Ark. 1157, 312 S. W. 2d 912 (1958), we adhered to the common law rule that rent does not accrue from day to day, as does interest: “it is considered to accrue in its entirety on the day the payment is due.” The common law rule is explained in Tiffany, Landlord and Tenant, § 176:

“Rent is not, at common law, regarded as accruing from day to day, as interest does, but it is only upon the day fixed for payment that any part of it becomes due. The result of this principle is that, ordinarily, the person who is on that day the owner of the reversion is entitled to the entire installment of rent due on that day, though he may have been the owner of the reversion or rent but a part of the time which has elapsed since the last rent day. Conversely, one who has been the owner of the reversion or rent during a part of that period can claim no portion of the installment unless he is such owner at the time at which the installment is payable by the terms of the lease. The general rule in this regard is ordinarily expressed by saying that rent cannot be apportioned as to time.”

The effect of the foreclosure on the lease was to extinguish it. The lease was subject to the mortgage. Lessor and lessee were made parties to the foreclosure and the foreclosure decree barred appellant and appellee from any interest in the land. It may well be said that the lease therefore disappeared. Grlenn on Mortgages, § 181.1, states it thnsly: “The mortgagor has no claim under it [lease], and the only claim that remains is on the tenant’s behalf, for breach of his landlord’s covenant of quiet enjoyment. This breach took place when foreclosure came as a result of the landlord’s default upon the underlying mortgage; but apart from that, the lease is dead for all operative purposes.” To the same effect see McAdams on Landlord and Tenant, 5th Ed., § 76.

What we have said applies to the facts in the case at bar. We have a defaulting landlord who holds, an annual rent note due near the end of the year; before the accrual date there is a foreclosure in which a receiver is not requested and no claim is made by the mortgagee as against the crops. The tenant purchases at the foreclosure sale, as is his right under such holdings as Rag v. Stroud, 204 Ark. 583, 163 S. W. 2d 173 (1942). (In that case we held that the tenant’s purchase could be set up as a defense in a subsequent suit by the landlord for rents.)

As between grantor and grantee in a private sale of land, where the property is rented at the time of conveyance, rents which are not due until after the conveyance go to the grantee unless reserved in the deed. Latham v. First National Bank, 92 Ark. 315, 122 S. W. 992 (1909). In the case at bar the commissioner’s deed is not in the record; however,- it is clear from an examination of the foreclosure decree that the commissioner made no reservation of rents in his deed. We think the two situations are analogous.

To sustain the award of the chancellor, appellee first contends that the entire amount of the judgment should be affirmed on the theory that the due date of the note was accelerated by the destruction of the crop in August. It is her contention that the loss was due to an unforeseen development which enabled her tenant to collect the insurance proceeds from the destroyed crop. She theorizes that the landlord should have a lien on the insurance proceeds. We cannot agree with that contention. No authorities were cited to support it, and no attempt was made to show that the tenant became unjustly enriched as a result of the collection of crop insurance. We are unable to find a case in our own jurisdiction which would approve or disapprove her theory; however,, the case of Roesch v. Johnson, 69 Ark. 30, 62 S. W. 416 (1900), would indicate that appellee’s contention is not tenable.

Alternatively, appellee insists that the rent should be apportioned. She relies principally on Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 278 S. W. 634 (1926); Purvis v. Elder, 175 Ark. 780, 1 S. W. 2d 36 (1927); and Free v. Harris, 183 Ark. 233, 35 S. W. 2d 603 (1931).

Deming and Purvis are cases in which, pursuant to foreclosure, a receiver was appointed under the provisions of Ark. Stat. Ann. §. 36-113 (Repl. 1962). The provision for appointment of a receiver was a part of our Civil Code. Our decisions are replete with cases prior to Deming and Purvis in which apportionment of rents was upheld in situations where the trial, court appointed a receiver.

Section 36-113 is the tool used by trial courts to appoint a receiver in foreclosure and thus divert rents and profits of mortgaged premises from the person lawfully in possession. It gives the plaintiff in a foreclosure an equitable lien on the accrued and unpaid rents. As was stated in Bank of Weiner v. Jonesboro Trust Co., 168 Ark. 859, 271 S. W. 952 (1925): “The rents and profits on the lands, after their sequestration by the institution of this suit and the appointment of a receiver, stand in the same category as the land itself.”

This brings us to a comment on the holding in Free v. Farris, supra. A secondary issue in that case was the disposition of rents. There was a foreclosure: without the appointment of a receiver and this. court approved an apportionment of the crop rents, 7/12ths of the annual rent being awarded to the mortgagor and. 5/12ths to the purchaser at the foreclosure sale. In approving that proration this court relied on the Dernmg and Pur-vis decisions. We have examined the briefs in Free v. Harris and' find that Mrs. Harris argued for apportionment, citing extensively from Demiug and Purvis. Mr. Free’s argument against apportionment consisted of •one paragraph containing a single sentence at the end of the brief. Preceding that short response were eight pages of argument meeting the points raised in the trial court. We surmise that Free’s brief treatment of the subject led this court into error in relying on Deming and Purvis, those being cases in which receivers were appointed pursuant to Ark. Stat. Ann. § 36-113.

The holding of our court in Rogoski, supra, at least by inference, substantially nullified the holding in Free v. Harris. This is because the two holdings cannot be reconciled. We do not believe the common law rule governing accrual of rents should be abandoned, which would be the effort of following Free v. Harris.

Reversed and dismissed.


author: John A. Fogleman, Justice.

text:
    Jose FIGEROA v. STATE of Arkansas
    5325
    425 S. W. 2d 516
    Opinion delivered March 25, 1968

      Harry Robinson, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This is an appeal from the judgment of the Pulaski County Circuit Court convicting appellant of the crime of assault with intent to kill. The record reveals that, on the day set for trial, counsel for appellant requested a continuance for the alleged reason that, as appellant was of Mexican descent and unable to testify in his own behalf, additional time was needed to secure the assistance of an interpreter. The trial court overruled this motion. Following the presentation of the State’s evidence, the appellant rested without offering any evidence, and the court, sitting as a jury, found appellant guilty of the crime as charged.

For reversal the appellant alleges that the trial court erred in overruling* his motion for a continuance and that there is no substantial evidence to support the verdict. 'These points will be discussed in the order mentioned.

I

Whether a case should be continued or not is generally a matter resting within the sound discretion of the trial court, and unless it clearly appears that the refusal to grant a continuance is an abuse of discretion so as to operate as a denial of justice, the trial court’s action does not constitute a ground for a new trial. Allison v. State, 74 Ark. 444, 86 S. W. 409; Smith v. State, 219 Ark. 829, 245 S. W. 2d 226. Absent a showing by the moving party that he has exercised due diligence, the trial court will not be held to have abused its discretion in refusing to grant the motion. Bullard v. State, 159 Ark. 435, 252 S. W. 584; Bowman v. State, 213 Ark. 407, 210 S. W. 2d 798; Gerlach v. State, 217 Ark. 102, 229 S. W. 2d 37.

While it is fundamental that a defendant in a criminal prosecution should be afforded the opportunity to testify in liis own behalf, to be confronted with adverse witnesses and to call witnesses in defense of the charges against him, we find that the trial court committed no error in refusing to grant a continuance in this case. The appellant has made no attempt to show the exercise of due diligence on his part. No evidence has been offered to establish his alleged inability to speak or understand the English language. Further, there is no showing in the record before us that appellant was diligent in seeking the services of an interpreter. On the contrary, the record reflects that from the time of his plea of guilty on April 4, 1966, until the daté of his trial on July 19, 1967, appellant was before the court with his attorney no fewer than three times. On no occasion, prior to the day of the trial, was it suggested to the court by appellant or his attorney that an interpreter would be required for his defense. Finally, although appellant and his counsel were appraised on June 19, 1967, that the trial would be held on July 19, there is no showing of any effort to obtain the assistance of an interpreter, either at the time the trial date was set or during the following month. On this state of the record, we cannot say that due diligence has been exercised.

II

Appellant next contends that the evidence was not legally sufficient to support a finding that he intended to kill the complainant by his act. The State’s evidence consisted wholly of the testimony of officer Lester Hall of the Little Bock Police Department. According to his report and testimony, he received a call to a disturbance at the T-Bone Inn on the David O. Dodd Boad. Upon his arrival there he saw appellant sitting in a 1956 Mercury with the motor running. When the officer asked appellant to get out of the car, it at first appeared that he would comply; but as Hall approached the car, the appellant got back in the car and accelerated it toward him. It was necessary for Hall to “run to get out of the way to keep him from running me down”; he had to “hit the ground” in order to get out of the way.

Although an automobile is not ordinarily considered a “deadly weapon” in the criminal sense, it does not tax the imagination to see that appellant’s car constituted such a weapon. Hall’s life would have been in no greater danger if appellant had fired a gun at him. In Morris v. State, 226 Ark. 472, 290 S. W. 2d 624, we said: “No particular instrument or weapon need be employed in order to constitute an assault with intent to kill or murder. 'Such a crime is ordinarily committed by the use of a weapon, the employment of which is calculated to produce death, but the use of such a weapon is not requisite to the commission of the crime.” Certainly it can be inferred from the use of appellant’s automobile, as described by officer Hall, that appellant intended to kill the officer. As we said in Craig v. State, 205 Ark. 1100, 172 S. W. 2d 256, “While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault . . . and all other facts and circumstances tending to reveal defendant’s state of mind.” See, also, Davis v. State, 206 Ark. 726, 177 S. W. 2d 190, and Numley v. State, 223 Ark. 838, 270 S. W. 2d 904. As we must view the evidence in the light most favorable to the State in determining whether it is sufficient to support a finding of guilty (Cook v. State, 196 Ark. 1133, 121 S. W. 2d 87), we are unable to say that the facts .here are insufficient to support an inference that appellant intended to kill by his act.

The judgment is affirmed.

       The attorney who moved for a continuance was not the! same attorney who had previously appeared with appellant.