author: Lyle Brown, Justice. Lyle Brown,

text:
    STATE of Arkansas v. C. R. GEORGE
    5-5671
    470 S. W. 2d 93
    Opinion delivered June 21, 1971
    [Rehearing denied September 20, 19711

      Alex Streett, for petitioner.

      Nathan Gordon, for respondent.
   Lyle Brown, Justice.

The sole question is whether a special circuit judge can be elected pursuant to Ark. Const., art. 7, § 21, for the purpose of selecting jury commissioners and impaneling a grand jury in a situation where the presiding judge is obviously disqualified. When the regular circuit judge of the Pope County Circuit Court, Hon. Russell C. Roberts, was notified that the prosecuting attorney desired the impaneling of a grand jury for the purpose of investigating certain activities of the trial judge, the latter, purporting to act under art. 7, § 21, disqualified himself and called for an election by the attorneys in attendance upon the court. Respondent C. R. George was elected. At the behest of the prosecuting attorney we granted a temporary writ of prohibition suspending C. R. George’s plan to proceed in the special matter for which he was elected. We are now asked to make that writ permanent. The prosecutor contends that art. 7, § 21 does not authorize the procedure of electing a special judge in the instant situation. That provision in our constitution is as follows:

Whenever the office of judge of the circuit court of any county is vacant at the commencement of a term of such court, or the judge of said court shall fail to attend, the regular practicing attorneys in attendance on said court may meet at 10 o’clock a.m. on the second day of the term, and elect a judge to preside at such court, or until the regular judge shall appear; and if the judge of said court shall become sick or die or unable to continue to hold such court after its term shall have commenced, or shall from any cause be disqualified from presiding at the trial of any cause then pending therein, then the regular practicing attorneys in attendance on said court may in like manner, on notice from the judge or clerk of said court, elect a judge to preside at such court or to try said causes, and the attorney so elected shall have the same power and authority in said court as the regular judge would have had if present and presiding; but this authority shall cease at the close of the term at which the election shall be made. The proceeding shall be entered at large upon the record. The special judge shall be learned in law and a resident of the State.

Our analysis of Section 21 leads us to conclude that its purpose is to take care of emergency situations to avoid delay in the trial of pending causes which are about to be reached on the docket or which in fact have been reached. It is first provided that if the regular judge is absent at the commencement of a term, the practicing attorneys in attendance upon the court may on the second day of court elect a special judge to preside until the regular judge appears. Secondly, after the term has begun (which was the situation in this instance) and the regular judge is physically unable to continue court, or if for any reason he is disqualified in any cause then pending, the attorneys may elect a judge “to preside at such court or to try said causes.” We think a sensible interpretation of Section 21 when applied to causes which arise after the commencement of the term is that a special judge may be elected to try only those causes which are pending at the time of the election. We cannot believe that the calling of a grand jury was intended to come under the phraseology “pending causes of action.”

In State v. Stevenson, 89 Ark. 31, 116 S. W. 202 (1909), this court said that Section 21 was “merely provided to keep the circuit courts going by special judges,” and that the exclusive function of those special judges is to “hold sessions of court” and to try those matters pending at the time of their appointment and until they are lawfully succeeded. It is pointed out that there are many duties of the court besides the trying of cases and that Section 21 does not confer any of those numerous functions on a special judge.

We refer again to the phrase "pending causes”— what was pending before the Pope Circuit Court at the time respondent assumed the office of special judge? The regular judge had taken notice of the fact that the prosecuting attorney had filed a petition with the supreme court requesting the assignment of a special judge for the purpose of impaneling a grand jury. A copy of the petition was placed on file by the circuit judge with the circuit clerk of Pope County. Thereupon the regular judge took notice of the filing of the petition and declared himself disqualified. The filing of that petition did not create a “pending cause” as that term is commonly used in legal parlance; it did not create any semblance of an adversary proceeding. It did not create a “case pending in the circuit court” within the universally accepted meaning of the phrase. See Cruson v. Whitley, 19 Ark. 99 (1857).

Our interpretation of Section 21 is reinforced by the language of the section which immediately follows it in the 1874 constitution. After providing for the election of special judges in Section 21, the drafters then provided for the exchange of regular judges in Section 22, which provides:

The judges of the circuit courts may temporarily exchange circuits or hold courts for each other under such regulations as may be prescribed by law.

That section is worded so that the procedure of exchange of circuits is a permissible but not the exclusive method by which a judge may be selected to preside over a circuit court; it allows the Legislature to regulate the exchange of circuits. Accordingly, the Legislature provided in Ark. Stat. Ann. § 22-142 (Supp. 1969) for the assignment of a judge by the chief justice of our supreme court. Section 22-142 is in harmony with our holding in Knox v. Beirne, 4 Ark. 460 (1842). That case approved an almost identical provision in the Constitution of 1836 relative to judges being sent into other districts. Thus the exchange of circuits upon agreement of the circuit judges or the appointment by the chief justice is open as an alternative method of selecting a judge to preside over the impaneling of a grand jury in Pope County Circuit Court to inquire into the activities of Judge Russell C. Roberts.

Writ granted.

Bryd, J., not participating.

William S. Arnold, Special Justice, joins in the opinion.

Supplemental opinion on denial of rehearing Delivered September 20, 1971

Alex G. Streett, for petitioner.

Nathan Gordon, for respondent.

Lyle Brown,

Justice. The original opinion in this case was handed down on June 21, 1971, and appears in 250 Ark. 968. Appellant timely filed a petition for rehearing and asked that we reconsider thát part of the opinion which would permit Judge Russell Roberts to exchange circuits with another judge. See art. 7, § 22, of our constitution. On rehearing we have been furnished with citations of authority not previously mentioned in the briefs. Those citations, coupled with our additional research, lead us to the conclusion that appellant’s argument on rehearing is well taken. The rule of law which governs the question before us may be succinctly stated: A trial judge should not exercise the discretionary powers of his office in a matter in which he will be personally affected.

Judge Roberts, in choosing a judge with whom to exchange, will not be performing a purely ministerial act, but will be selecting a judge based upon Judge Roberts’s own judgment—it would clearly constitute an act of discretion. The subject matter which occasions the selection of another judge unquestionably affects Judge Roberts’s personal interests.

Our conclusion is supported by the common law, by our constitution, by statute, and by the canons of judicial ethics.

The Common Law. We said in Morrow v. Watts, 80 Ark. 57, 95 S. W. 988 (1906), that by common law interest of a judge of a court of record was ground for disqualification.

The Constitution. Article 7, § 22, provides that “the judges of the circuit courts may temporarily exchange circuits or hold courts for each other under such ■regulations as may be prescribed by law.” But that section must be read in conjunction with § 20 in the same Article, which says that “no judge or justice shall preside in the trial of any cause in the event of which he may be interested.” In the strictest sense Judge Roberts would not be “presiding at a trial” when entering an order making an exchange of circuits. However, the selection of a judge is an integral part of the entire proceeding and, consistent with our well-established practice, we give a broad and liberal scope, rather than a technical or a strict meaning to the word trial. Black v. Cockrill, 239 Ark. 367, 389 S. W. 2d 881 (1965); Byler v. State, 210 Ark. 790, 197 S. W. 2d 748 (1946). By so doing “the courts may achieve impartiality in the minds of the public as well as impartiality in fact.” Copeland v. Huff, Judge, 222 Ark. 420, 261 S. W. 2d 2 (1953).

We have previously held that Article 7, § 20, required the disqualification of a judge in matters involving the exercise of judicial discretion when his personal rights were concerned. Ladd v. Stubblefield, 195 Ark. 261, 111 S. W. 2d 555 (1939). While pecuniary interests of the judge were involved in that case, there is no sound reason why the principle should not apply with equal force where, as here, individual rights other than pecuniary or property rights are involved.

Statutory Law. Under the provisions of Ark. Stat. Ann. § 22-113 (Repl. 1962) a circuit judge is prohibited from presiding over the “determination of any cause or proceeding in which he may be interested . . .” This court undoubtedly had this statute in mind, as well as art. 7, § 20, when it was faced with a similar situation in Rowland v. State, 213 Ark. 780, 213 S. W. 2d 370 (1948). There it was said that a regular presiding judge could not select a judge by exchange if the regular presiding judge was a litigant in the pending cause. It is true that such statement was dictum but the fact that it was approved by a unanimous court is significant. It was indicative of the way in which this court might well hold when the question squarely presented itself.

We do not agree with respondent’s argument that the Rowland dictum is inapplicable in this case because Judge Roberts is not yet, strictly speaking, a “litigant.” We find no logical reason why the principle of the Rowland dictum should govern only after the judge involved has technically become a party to an adversary proceeding and not when he is exercising, or called upon to exercise judicial discretion in matters where his personal rights will be affected. When we give the words of the statute a broad and liberal scope, as we do in construing statutory law relating to disqualification of judges, it can hardly be doubted that an exchange of circuits is a “proceeding” in the determination of which Judge Roberts is interested. See Wimberly v. State, 90 Ark. 514, 119 S. W. 668 (1909), and definitions of “proceeding” in Webster’s New International Dictionary, Second and Third Editions.

Canons of Judicial Ethics. In our publication styled “Miscellaneous Rules of the Supreme Court,” published in January 1963, are found the canons of judicial ethics adopted by this court (after their adoption by the Arkansas Judicial Council in September 1958). Section 29 thereof provides that “A judge should abstain from performing or taking part in any judicial act in which his personal interests are involved.” That is not only, in essence, a statement which harmonizes with the law as we view it, but it tends to promote the appearance of impartiality as mentioned in Copeland v. Huff, supra. An apt statement of the principle is found in 46 Am. Jur. 2d, Judges § 86:

The law goes further than requiring an impartial tribunal; it also requires that the tribunal appear to be impartial on the theory that next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. ... It is also for the purpose of the appearance of impartiality that where grounds for disqualification exist, a judge should disqualify himself.

Respondent places his principal reliance upon Evans v. State, 58 Ark. 47, 22 S. W. 1026 (1893). We do not consider that case to be either controlling or persuasive. There the disqualification pf the judge arose from his relationship to a “party.” Here the disqualification results because the proceedings affect the individual rights of the judge. We have long recognized that the latter basis is within the purview of our constitutional provisions that require no statutory implementation as is the case when the basis is relationship to a party. Foreman v. Town of Marianna, 43 Ark. 324 (1884); Osborne v. Board of Improvement of Paving District No. 5, 94 Ark. 563, 128 S. W. 357 (1910); Morrow v. Watts, supra.

Respondent also argues that, if the assignment of a judge under Act 496 of 1965, Ark. Stat. Ann. § 22-342, et seq. (Repl. 1962), is the only proper method of procedure under prevailing circumstances, there was a 91-year hiatus after the adoption of our present constitution during which there would have been no means of acting when the regularly elected judge was disqualified in a situation similar to that now presented. We need not consider what might have happened during that 91-year period or speculate on the reasons for legislative inaction. The General Assembly has wisely made provision for this contingency through Act 496. We did hold in Morrow v. Watts, supra, that failure of the legislative branch to act where implementation was called for by the express language of the constitution might make the provision for disqualification inoperative. We did not hold that even that provision was permanently atrophied nor have we ever said that a common law disqualification could be negated merely by legislative inaction.

Nothing contained herein should be taken as preventing a proper transfer, by a disqualified judge, of any proceeding to a division of the same court which is existing and permanent but over which he does not preside.

The last two paragraphs of the original opinion are deleted, beginning with the statement, “Our interpretation of Section 21 . . .” and this supplemental opinion is substituted for the deleted portion. This action does not disturb the order granting the writ.

Byrd, J., not participating.

William S. Arnold, Special Justice, joins in the supplemental opinion.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Bobby Gene TARKINGTON v. STATE of Arkansas
    5494
    469 S. W. 2d 93
    Opinion delivered June 21, 1971
    [Rehearing denied August 9, 1971.]

      Guy H. Jones, Phil Stratton and Guy H. Jones, Jr., for appellant.

      Ray Thornton, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant states 15 points for reversal of his conviction of the crime of rape. He argues them in four groups and relies upon those arguments to support his first three points, which are not otherwise covered.

Appellant first asserts that his conviction was based upon prejudice, bias, speculation, conjecture, surmises and irrelevant and impeached testimony. This argument is based upon attacks on the credibility of the prosecutrix. He contends that her testimony is the only incriminating evidence against him. He points out that his accuser made no outcry, gave no notice to her neighbors in a thickly populated district in the city of North Little Rock, made a positive identification of a ring and a knife which she said appellant had in his possession at the time of the alleged attack without any reason for her certainty, or means of distinguishing them from thousands of other such objects similar in appearance, and varied her testimony at different times as to the hour and minute of the alleged crime and her state of dress when it occurred. This witness was positive in her identification of appellant, but he says that the jury could not have properly based its verdict upon her testimony, because it should be considered as incredible.

Appellant concedes that corroboration of prosecuting witness is not essential to a conviction of the crime of rape. Lacy v. State, 240 Ark. 84, 398 S. W. 2d 508. Where the prosecuting witness is positive in her identification, the question of her credibility is for the jury. Hamm v. State, 214 Ark. 171, 214 S. W. 2d 917. Prosecutrix, who said that she was then 15 years old, testified that she attempted to scream, but “nothing would come out.” She also said that appellant, who had pulled a knife on her, told her that he would not kill her if she cooperated, but if she said anything he would kill her. Failure of the prosecutrix to make an outcry or to make prompt complaint is properly considered when the defense is based upon her consent or want of resistance or upon the contention that a rape was not committed by someone. Kurch v. State, 235 Ark. 688, 362 S. W. 2d 713, cert, denied, 373 U. S. 910, 83 S. Ct. 1299, 10 L. Ed. 2d 412; Daniels v. State, 186 Ark. 255, 55 S. W. 2d 251; Jackson v. State, 92 Ark. 71, 122 S. W. 101. Even then the failure to make an outcry is excused if prevented by fear of the prosecutrix for her life or bodily safety. Pemberton v. State, 221 Ark. 19, 251 S. W. 2d 825; Zinn and Cheney v. State, 155 Ark. 542, 205 S. W. 704. But no such defense was made, and the prosecutrix testified that she did not make an outcry because of her assailant’s threats. The prosecutrix and her husband had only lived at the apartment where the offense took place for three weeks. She testified that she told an elderly lady across the street what had happened when she found that she was unable to reach her husband by telephone because it was out of order. She then went by cab to the place her husband was in school and reported the incident to him. Questions of identification and alibi (the defense made by appellant) were jury questions. Hamm v. State, supra; Lacy v. State, supra. Resolution of conflicts in the testimony of the prosecutrix was also a jury function. Marshall v. State, 250 Ark. 585, 466 S. W. 2d 920.

The next group of points argued by appellant turns upon his argument that a lineup identification, when he was without the assistance of counsel, violated his constitutional rights. Appellant was charged with having committed the crime on January 17, 1967, and the lineup in question was held on January 24, 1967, so the decisions in United States v. Wade, 588 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and Gilbert v. California, 588 U. S. 265, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, both decided June 12, 1967, do not apply. Stovall v. Denno, 588 U. S. 295, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Foster v. California, 594 U. S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). Appellant contends, however, that the identification procedures at the lineup, when judged by the totality of the circumstances, were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law, relying upon Foster. Appellant also contends that his testimony about the lineup identification was more persuasive than that of the arresting officer. The determinadon of persuasiveness of the testimony on this point is a matter in which we must give substantial weight to the circuit judge’s superior opportunity to evaluate credibility. See Jackson v. State, 249 Ark. 653, 460 S. W. 2d 319.

The circumstances here are entirely different from those in Foster, however. Sergeant Bruce of the North Little Rock Police Department picked Tarkington up off the streets, from a description given by the prosecutrix, and a radio report that a man fitting that description was in the area. Another suspect had been previously picked up from this description, but the prosecuting witness failed to make an identification in a lineup in which he was placed, so he was released. According to Bruce, he placed Tarkington and three other persons in a lineup to be viewed by the prosecutrix at police headquarters. None of the others resembled Tarkington except that one of them was near Tarkington’s weight and size. Tarkington said he was in the lineup about 10 minutes. Mrs. Jones testified that as soon as she looked at Tarkington, she said, “That’s the man.” Her immediate identification of Tarkington was corroborated by Bruce.

The essential elements making the lineup identification a denial of due process in Foster are lacking here. Foster was at least six inches taller than both of the other persons in that lineup. He wore a jacket similar to one which the victim of the crime described as worn by the person who robbed him. The vicdm there could not positively identify Foster. Even after a face-to-face confrontation across a table in the absence of anyone else except prosecuting officials, the witness was unsure whether Foster was one of the robbers. At a second lineup in which there were five persons, of which Foster was the only one who had been in the first, the victim was convinced of Foster’s identity. It was held that the procedures followed had the police, in effect, saying to the witness, “This is the man,” made eventual identification of the accused by the victim inevitable and so undermined the reliability of the identification as to violate due process. Since one man in the lineup with Tarkington was of his weight and size, and the prosecutrix was prompt and positive in her identification after having failed to identify her assailant in a previous lineup, we find no violation of due process here. It also seems significant to us that a “class” ring fitting the description of one worn by the assailant, as related by the prosecutrix, had been removed from Tarkington’s hand before the lineup was viewed by the prosecutrix.

The next group of points argued by appellant has to do with an allegedly prejudicial course of conduct of the prosecuting attorney. In appellant’s original motion for new trial, he only asserted that the prosecuting attorney violated the orders of the court by asking him if he were not charged with assault with intent to rape on January 23, 1967, and improperly argued that appellant’s whole defense was framed by Robert Tarkington, his father. An amended motion filed later asserted the single ground that the prosecuting attorney conducted a star chamber proceeding at which certain witnesses were intimidated and harassed.

We are not aware of any question propounded to appellant about his being charged with assault with intent to rape. The only question of that nature called to our attention is one commenced by the deputy prosecuting attorney conducting the trial for the state. He asked appellant, “On the twenty-third day of January, 1967, did you assault Lois____?” He never completed the question because the prompt objection by appellant was sustained by the circuit judge, who also admonished the jury to disregard the question.

There are several reasons, in addition to appellant’s failure to make this question a part of his motion for new trial, why there was no prejudicial error. The court’s admonition was certainly calculated to remove any prejudice. If appellant had felt that it failed to do so, he should have moved for a mistrial. Not having done so, he is in no position to complain. Freyaldenhoven v. State, 217 Ark. 484, 231 S. W. 2d 121; Fair v. State, 241 Ark. 819, 410 S. W. 2d 604. When a defendant takes the stand, he may be asked, in good faith, about other crimes he may have committed, for the purpose of throwing light upon his credibility, but he cannot be asked if he has been charged, indicted or accused of other crimes. Johnson v. State, 256 Ark. 917, 370 S. W. 2d 610. Appellant’s argument apparently goes, however, to the deputy prosecuting attorney’s good faith in asking the question because appellant relates the question to earlier incidents in the trial. It is admitted that, at the beginning of the trial, the court had directed the deputy prosecuting attorney not to call Lois Sikes as a witness. The court had heard a statement by the deputy prosecuting attorney that he expected to prove a similar incident within a week after the rape of the prosecutrix. During the course of the trial the deputy prosecuting attorney called Lois Sikes as a witness. She came from the witness room and walked past the jury box, but never took the stand, because of an objection by appellant’s counsel and his request for a hearing in chambers.

At the hearing in chambers the deputy prosecuting attorney made the following proffer:

I have called as my next witness Mrs. Lois Sikes, and I would propose to prove by her that on the 23rd of January, 1967, this defendant came to her house asking about vacant apartments; that he asked her for a drink of water in order to gain entrance; that, upon gaining entrance, he pulled a knife on her and stated to her that he was going to have sexual relations with her; that, at that time, she lived at 505 Olive Street in North Little Rock, in close proximity to the residence of the complaining witness in this case; and I propose to introduce this testimony for the purpose of showing a course of conduct, not for the purpose of proving guilt or innocence in the case which we are trying today.

Although the circuit judge expressed some uncertainty about the matter, he sustained appellant’s objection, and the state rested its case. After a motion for a directed verdict by appellant was denied, the court instructed the deputy prosecuting attorney to call his next witness. The deputy prosecuting attorney responded that he understood the court to have ruled that Mrs. Sikes (the state’s last witness) would not be permitted to testify, and that the state rested.

It was appropriate for the circuit judge to be extremely cautious about the admission of such testimony, as any real doubt about the question should be resolved in favor of the accused. We have zealously guarded the rights of accused persons to have the state’s evidence strictly confined to the issues to insure that no one is convicted because he has committed offenses other than that for which he is on trial or because he is of bad character and addicted to crime. See Alford v. State, 223 Ark. 330, 266 S. W. 2d 804; Moore v. State, 227 Ark. 544, 299 S. W. 2d 838, cert, denied, 358 U. S. 946, 79 S. Ct. 356, 3 L. Ed. 2d 353. Yet the mere fact that evidence shows the defendant was guilty of another crime does not prevent its being admissible when otherwise competent on the issue on trial. State v. Dulaney, 87 Ark. 17, 112 S. W. 158, 160.

In Alford, we held that evidence of a prior assault with intent to rape by a defendant on trial for rape was inadmissible. Intent was not an issue either there or here. We recognized, however, that if conduct other than that with which an accused is charged is relevant as tending to prove some material point in issue, and not that the defendant is a criminal, evidence of that conduct may be admissible, but that a proper cautionary and limiting instruction should be given. Among those instances we gave was that arising where alibi is an issue.

In Moore, the state had been permitted to prove that two of four defendants on trial for murder committed in the perpetration of robbery assaulted and robbed another victim five days after the crime for which they were on trial. We held that error was committed in admitting this evidence because no connection between the two crimes was even alleged. The only similarity between the two was that the victims in both were picked up while hitchhiking. We again pointed out that there are innumerable situations in which proof of other conduct on the part of an accused is relevant and competent, even though it also shows the commission of another crime.

We have long recognized that evidence of other conduct by a defendant which shows other crimes by him is admissible when relevant to show mode or methods of operation, habits and practices of the defendant and to identify him as the person who committed the crime for which he is on trial. Tolbert v. State, 244 Ark. 1067, 428 S. W. 2d 264; Wood v. State, 248 Ark. 109, 450 S. W. 2d 537; Roach v. State, 222 Ark. 738, 262 S. W. 2d 647; Parks v. State, 136 Ark. 562, 208 S. W. 435; Puckett v. State, 194 Ark. 449, 108 S. W. 2d 468; Larmon v. State, 171 Ark. 1188, 286 S. W. 933. We have repeatedly held that evidence of the commission of other similar crimes or acts by a defendant at about the same time, tends to show the guilt of the defendant when it tends to establish his identity as the person who committed the crime charged. Kurck v. State, 242 Ark. 742, 415 S. W. 2d 61; Miller v. State, 160 Ark. 469, 254 S. W. 1069; Keese and Pilgreen v. State, 223 Ark. 261, 265 S. W. 2d 542; Reed v. State, 54 Ark. 621, 16 S. W. 819; Nash v. State, 120 Ark. 157, 179 S. W. 159; Cain v. State, 149 Ark. 616, 233 S. W. 779.

One of the most widely recognized applications of the rule is in cases where the modus operandi tends to establish identity. If the crime charged has been committed by a novel means or in a particular manner, and the identity of its perpetrator is in issue and not otherwise conclusively established, evidence of a defendant’s commission of a similar offense by that means or in such manner is admissible as tending to show identity of the perpetrator when the similarity of the means or manner employed logically operates to set the offenses apart from other crimes of the same general variety and tends to suggest that the perpetrator of one was the perpetrator of the other. Jones v. Commonwealth, 303 Ky. 666, 198 S. W. 2d 969 (Ct. App. 1947); People v. Haston, 69 Cal. 2d 233, 70 Cal. Rptr. 419, 444 P. 2d 91 (1968); State v. Moore, 460 P. 2d 866 (Ore. 1969); Harris v. State, 189 Term. 635, 227 S. W. 2d 8 (1950); Wollaston v. State, 358 P. 2d 1111 (Okla. Crim. 1961); Nester v. State, 75 Nev. 41, 334 P. 2d 524 (1959); State v. Francis, 91 Ariz. 219, 371 P. 2d 97 (1962); State v. Redmond, 19 Utah 2d 272, 430 P. 2d 901 (1967); Thessen v. State, 454 P. 2d 341 (Alaska 1969), cert, denied, 396 U. S. 1029, 90 S. Ct. 588, 24 L. Ed. 2d 525; Ferrell v. State, 429 S. W. 2d 901 (Tex. Crim. App. 1968); Anderson v. State, 222 Ga. 561, 150 S. E. 2d 638 (1966); Brasher v. State, 33 Ala. app. 13, 30 So. 2d 26 (1946); Affirmed & modified, 249 Ala. 96, 30 So. 2d 31 (1947); Williams v. State, 80 S. Ct. 102, 4 L. Ed. 2d 86; United States v. Johnson, 382 F. 2d 280 (2nd Cir. 1967); Fernandez v. United States, 329 F. 2d 899 (9th Cir. 1964), cert, denied, 379 U. S. 832, 85 S. Ct. 621, 13 L. Ed. 2d 40; State v. Sorenson, 270 Minn. 186, 134 N. W. 2d 115 (1965); State v. Stevens, 26 Wis. 2d 451, 132 .N. W. 2d 502 (1965); Layton v. State, 248 Ind. 52, 221 N. E. 2d 881 (1966); State v. McClain, 240 N. C. 171, 81 S. E. 2d 364 (1954). See also, State v. Stephenson, 191 Kan. 424, 381 P. 2d 335 (1963); State v. Turner, 81 N. M. 571, 469 P. 2d 720 (1970).

Examples of application of the identity exception to the general rule of exclusion to the method or means of approach taken by an assailant are numerous. See e. g., Allen v. State, 201 Ga. 391, 40 S. E. 2d 144 (1946), where the common elements were that all the rapes and attempts to rape were committed by a negro upon white women in the same general section of a city, and a knife was the means of intimidation and coercion; Hart v. State, 447 S. W. 2d 944 (Tex. Crim. App. 1970), where the subsequent event about which evidence was admitted occurred eight days after the rape charged and was similar in that the person involved made his approach after watching the women in a washateria; Nester v. State, 75 Nev. 41, 334 P. 2d 524 (1959), where the rape charged occurred about six months prior to the other rape and was similar in that the fuses or lights were unscrewed to keep the area where contact was made in darkness, the assailant concealed his face, the threatening language was virtually identical, the method of forcible entry was similar and accomplished without removal of the victim’s garments; State v. Francis, 91 Ariz. 219, 371 P. 2d 97 (1962), where the victim and another young female were each stopped on different occasions by a man who showed a badge, identified himself as a juvenile officer and each was asked to get into his automobile; Williams v. State, 110 So. 2d 654 (Fla. 1959), in a prosecution for rape, where the assailant, who concealed himself in the back seat of the victim’s automobile in a parking lot at night, explained that he had crawled into the automobile to take a nap, thinking it was his brother’s, evidence was permitted to show that six weeks earlier the accused gave the same explanation when frightened away from another lady’s automobile in which he had concealed himself at night; People v. Lindsay, 227 Cal. App. 482, 38 Cal. Rptr. 755 (1964), wherein the charged rapes and uncharged ones were similar in that the perpetrator covered the faces or eyes of his victim, and bound her before committing the rape; State v. Stevens, 26 Wis. 2d 451, 132 N. W. 2d 502 (1965), where all thefts by fraud and attempts followed a procedure by which the thief would come to the home of a stranger, ask for an unknown person, claim ability to cure an ill person in the home, ask for a glass of water in which she put certain material, ask for money to bless and wrap in a cloth, use ruses to get both husband and wife out of their house and then disappear with the money; State v. Moore, 460 P. 2d 866 (Ore. App. 1969), where the robber in both cases initiated the robbery with the question, “Would you believe this is a holdup?” and then pulled a gun; People v. Adamson, 225 Cal. App. 74, 36 Cal. Rptr. 894 (1964), where the robbery charged occurred in Sacramento, California, two weeks prior to another in Reno, and in both cases, two men entered, one produced a hand weapon, pointed it toward a clerk and caused the clerk to turn his back while the other went behind a counter and removed only currency from a cash register; State v. Woolard, 467 P. 2d 652 (Ore. App. 1970), where a ring was discovered missing in a jewelry store on two occasions shortly after the accused and a female companion had left after trying on rings; People v. Perez, 65 Cal. 2d 615, 55 Cal. Rptr. 909, 422 P. 2d 597 (1967), where all the robberies were committed during the evening or early morning, two or three men participated, one or more of whom wore a mask, a gun was used, and no victim was physically injured: Thessen v. State, 454 P. 2d 541 (Alaska 1969), where 10 fires were started in trash piles with paper towels or tissue and the fire charged was started with paper towels taken from a trash bucket; Ferrell v. State, 429 S. W. 2d 901 (Tex. Crim. App. 1968), where the robber of two different motels on occasions eight days apart was wearing a hat, drawstring gloves, a woman’s hose over his face and exhibited an automatic pistol; Webster v. State, 425 S. W. 2d 799 (Tenn. Crim. App. 1967), cert, denied, 1968, where the instructions given and procedures followed by the abortionist in all instances were the same. Other cases where evidence of rapes or attempts to rape other persons was held admissible to establish identity in trials for rape or carnal abuse include: Mitchell v. State, 45 Ala. App. 668, 235 So. 2d 917 (1970); Mosley v. State, 211 Ga. 611, 87 S. E. 2d 314 (1955); Anderson v. State, 222 Ga. 561, 150 S. E. 2d 638 (1966); People v. Clark, 6 Cal. App. 3d 658, 86 Cal. Rptr. 106 (1970).

We have made this application of the rule in some cases without actually stating it, apparently accepting it as well established. For instance in Puckett v. State, 194 Ark. 449, 108 S. W. 2d 468, we held testimony about an attempted burglary by the appellee about 15 minutes prior to the burglary with which he was charged to be admissible. The house burglarized was entered by cutting a screen and breaking a window in about the same manner as the accused was earlier seen attempting entry into another house. In Kurck v. State, 242 Ark. 742, 415 S. W. 2d 61, testimony of witnesses about previous similar attempts to defraud by a “green money racket money press” was held properly admitted to show the accused’s identity, scheme, purpose, intent, design and motives.

In this case, the prosecutrix testified substantially as follows:

Appellant knocked at her door and inquired about the apartment next door. When she brought a rent receipt to the door to show appellant the name of the apartment building operator, Tarkington asked her for a drink of water. She told him to wait at the latched screen door, but when she returned with the water, he had entered the living room. She persuaded him to come outside by showing him the apartment office, but he asked for another drink of water. She became frightened and tried to get inside her apartment and close the door, but appellant followed her, prevented her from closing the door and followed her into the bedroom. When she turned he had a knife in his hand and was saying, “Don’t be scared. I won’t hurt you if you will just cooperate.” He told her to pull off her housecoat, then pushed her down on the bed and raped her.

While the trial judge must exercise a sound judicial discretion in admitting such evidence, the similarity in the approach was such that the admission of Lois Sikes’ testimony consistent with the proffer would not have been error especially if accompanied by an instrucdon limiting the purpose for which the jury might consider this evidence.

Appellant seeks to connect the calling of Mrs. Sikes to the stand, the later question partially propounded to her and testimony on hearing of his motion for new trial that this proposed witness had been seen talking to some of the jurors. The subject of the conversation was not shown. Mrs. Sikes denied that any such thing took place. If the testimony of his witnesses, both of whom were relatives of appellant, was given full credit, perhaps the trial court would have been justified in finding prejudice or conducting further investigation. No juror was ever identified. The only one called as a witness could not remember Mrs. Sikes’ having been called to the witness stand or anyone’s having spoken to him at all. We are unable to predicate reversal upon the record in this regard, as the question was one of credibility.

Appellant’s argument about the “star chamber” proceeding is based upon the following sequence of events. His first witness was his father, Robert Tarkington. This witness laid the foundation for appellant’s defense of alibi. The father identified one Gerald Cox as a person who was working with him on the date of the offense charged and as one who would know the date and time of a telephone call the father received from his son on that date. After two other alibi witnesses had testified, appellant called Gerald Cox as his next witness. The state’s attorney then inquired whether the witnesses who had testified and those who had not were being segregated. When informed that they were not, he requested that this be done, and the court granted the request. Appellant’s motion for mistrial was denied. The deputy prosecuting attorney requested a hearing in chambers, which was granted. At that hearing conducted while the jury was excused for the noon recess, the deputy prosecuting attorney examined Robert Tarkington and Gerald Cox, the uncle of appellant’s wife, as to whether the witnesses who had testified and returned to the witness room had discussed the proceedings during their testimony with the witnesses who had not been called, and he specifically asked Tarkington if he had “coached” the other witnesses. When no significant disclosure was made, the deputy prosecuting attorney made no motion. Appellant’s counsel again moved for a mistrial on the ground of intimidation of witnesses.

Appellant argues that this proceeding placed the witnesses under such a strain that their demeanor was affected and their credibility damaged. At the hearing on the motion for new trial, three of appellant’s witnesses who had not been on the witness stand prior to this proceeding testified that the elder Tarkington and Cox returned to the witness room all “shook up” and even though they would not say anything, this frightened or made them nervous. One of these three said that he could not look at or talk straight to the jury. Another, appellant’s father-in-law, said he was sick. Cox said that he was nervous. One of these witnesses stated that a rumor “got out” that anybody from Faulkner County would be prosecuted for perjury. The circuit judge heard all the testimony on the motion for new trial and observed these witnesses when they did testify. We cannot say that there was any intimidation of witnesses through this proceeding or that the discretion of the trial judge was abused in denying a new trial on any alleged misconduct on the part of the attorney prosecuting.

It is not at all clear to us how conduct of the prosecutrix during the trial is misconduct of the prosecuting attorney. Nevertheless, appellant showed by the testimony of the deputy prosecuting attorney that the prosecutrix was present on the second day of the trial and that she and her husband were in an anteroom of the judge’s chambers. He denied any recollection of this witness having cried in the presence of jurors outside the courtroom or at any time except while she was testifying, although appellant’s attorney stated that he had witnessed the prosecutrix crying hysterically and waving her arms in the presence of eight or nine jurors. Appellant’s first cousin, his uncle and one Junior Lee Smart, identified as appellant’s father’s brother-in-law, all testified that such an incident occurred during a recess, and the two relatives said that the prosecutor was with her. One of them testified that appellant’s attorney saw what took place. The uncle said that someone got her out quickly. Appellant’s father said that appellant’s attorney had discussed the matter with him at the time it occurred. Yet, this matter was never called to the circuit judge’s attention in any way prior to the motion for new trial. Even though appellant now argues that the witness was under the control of the deputy prosecuting attorney, and that he should have prevented such an occurrence, no excuse is offered for failure on the part of appellant to ask any action by the trial court at the time, or even to make the circuit judge aware of the incident, even though, according to appellant, both he and his attorney were aware of it. The circuit judge did not abuse his discretion in denying a new trial on this ground.

Appellant concedes that there is no record of the deputy prosecuting attorney’s closing argument. Neither is there any record of any objection to it. Of course, we cannot consider any point based on statements in the course of this argument. We find no reversible error for the misconduct of the state’s attorney.

The next group of points relates to action of the trial court. Two points argued by appellant have to do with statements made by the trial judge. One of these was the court’s admonition to the jury at the end of the first day of the trial. He admonished the jurors not to read newspapers, stating that if they did, he would have to declare a mistrial, and it had cost the state a couple of thousand dollars up to that time. Later during the presentation of appellant’s evidence, he offered exhibits in the form of weather bureau reports purporting to show amount of snowfall in the Little Rock area during the months of January, February and March, The trial judge remarked that lots of times it is raining at Adams Field and not at his house. When the deputy prosecuting attorney stated that he was at a loss to determine what the offered exhibits showed, the judge asked: “Do you want to let the jury guess on it?” While the judge’s statement as to the cost of the trial and his comments in regard to the weather bureau reports in the presence of the jury were perhaps inadvisable, we find no basis for reversal. Appellant did not object on either occasion, did not ask any corrective action and did not ask for a mistrial. Kimble v. State, 246 Ark. 407, 438 S. W. 2d 705.

Another argument advanced by appellant in this category is that the circuit judge erroneously refused to permit him to read the transcribed testimony of Lawrence Keathley at an earlier hearing pertaining to the case, because the witness was outside the_ jurisdiction of the court. He admits that the record does not disclose this action in any way.

Appellant moved for diminution of the record in this respect on April 20, 1970. We granted certiorari. The writ was returned indicating that there was no such record. The court reporter filed her affidavit that no written or oral motion to make this testimony a part of the record was ever presented to the court, and that no subpoena was issued for Lawrence Keathley.

Appellant then renewed his motion and asked permission to file a bystander’s bill of exceptions. We then remanded the case to the trial court for the purpose of settling the record on June 22, 1970. When the record had not been returned, we again issued a writ of certiorari on October 9, 1970. Return of this writ on November 6, 1970, indicated that the record was complete. Appellant’s motion on November 25, 1970, for certiorari or diminution of the record and for additional time to prepare a bystander’s bill of exceptions was denied by this court.

Appellant now argues that we must consider a bystander’s bill on this point, in spite of these proceedings. We do not agree. While appellant relies on Ark. Stat. Ann. §§ 27-1750 and 27-1751 (Repl. 1962), we have no record of the proceedings in the trial court before us and no bystander’s affidavit, even though the record was on remand to the trial court for the purpose of settling the record for more than four months. Neither do we know that the testimony of the witness was relevant, material or competent.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Julius N. DeLAUGHTER, Jr., a Minor
    5-5583
    468 S. W. 2d 242
    Opinion delivered June 21, 1971

      Thomas B. Keys and Bedford G. Webb, for appellant.

      R. D. Rouse and Tackett, Young, Patton ir Harr elson, for appellee.
   J. Fred Jones, Justice.

This is an eminent domain case in connection with the construction of Interstate Highway No. 30 through Nevada County, Arkansas. The State Highway Commission took 30.66 acres for highway purposes diagonally, in a northeasterly-southwesterly direction, across a 409 acre tract belonging to Julius N. DeLaughter, Jr., leaving approximately 182 acres west of the right-of-way and approximately 196 acres east of the right-of-way. The west end of the tract fronts, for approximately one-half mile, on old Highway 67, or Bowden Road; and the east end of the tract is bounded by the Little Missouri River. The Commission deposited $8,750 into the registry of the court as just compensation. Two expert witnesses for DeLaughter testified to damages in the amounts of $38,649 and $30,365 respectively as just compensation. The jury awarded $23,699; judgment was entered for that amount and on appeal the Commission has assigned error under designated points as follows:

“The court erred in allowing testimony regarding alleged valuable gravel deposits on the subject land without a proper foundation being laid for the introduction of such evidence.
The court erred in refusing to strike the testimony of Charles Wilburn and P. M. Brown, witnesses for the appellee, based on their testimony of inconsistent highest and best uses of the subject property.”

Mr. DeLaughter, the owner, is 20 years of age and testified that he acquired the land from his grandfather and had been familiar with it ever since he was two years of age; that ever since he has known the property it has been used for “cattle grazing and gravel operation.” He testified that approximately one-half of the land is open and one-half in wooded area; that jarior to the taking he had access to all fields and that his cattle could run free through the bottom land without the hazard of being trapped by high water coming up from the river on the east portion of the land. He says that since the highway has been constructed his only access from the west to the east portion of the property is through underpasses built for relief bridges for Black Bayou and another creek that runs from west to east across his land and empties into the river. He says that during the winter months and during rainy seasons he is unable to get any kind of vehicle from the west to the east side of the property because of the high water in the creeks in the underpasses. He says that since the construction of the highway all the surface drainage from his property west of the highway must flow through the two underpasses; that when the water backs up in the creeks, his cattle can not get through the underpasses and are in danger of being cut off from access to high ground by the rising water from the river. Mr. DeLaughter answered questions propounded by his attorney as follows:

“Q. What farm equipment can you get through those underpasses to the big tract of land?
A. This big tract of land?
Q. The 196 acre tract?
A. I can’t get any farm equipment at the present time.
Q. Can you get any gravel equipment, gravel trucks or equipment through there?
A. No, there is no way.”

Mr. DeLaughter testified that the only future use he could make of the land east of the highway would be for cattle grazing, which would be limited to approximately six or seven months out of the year. He testified that he has been selling gravel from a gravel pit on approximately 20 or 25 acres “above relief bridge number two on high ground”; that the gravel pit is approximately 30 steps from the right-of-way taken, and that since October, 1967, he has received a total of $8,458 for gravel sold from the property. He testified that there was some gravel on the east side of the right-of-way, but that he has sold no gravel from that area. He testified that he did sell some fill dirt from approximately two acres on the east side of the right-of-way for use in the construction of the interstate. He says that prior to the taking his land would support approximately 170 head of brood cows and that since the taking he can run approximately 70 to 90 head of brood cows on the property. Mr. DeLaughter testified on redirect examination that he could not get vehicles and farm machinery from the west side to the east side of his property at any time, and that cattle could go from one side to the other for approximately six or seven months out of the year.

Mr. Roy Stanley, a geologist, testified that he was familiar with the land involved; that it is farm and cattle grazing land containing extensive deposits of sand and gravel which could be commercially extracted.

Mr. Charles Wilburn, a realtor from Texarkana, testified that he had familiarized himself with the property involved and as to the highest and best use of the land in question, he testified as follows:

“Q. Do you have an opinion what the highest and best use is?
A. I do.
Q. What is that opinion?
A. The highest and best use is farming grazing, cattle operation.
Q. Are there any other uses that this land might be put to?
A. It is enhanced with gravel.
Q. What do you mean enhanced with gravel?
A. It has the possibility of gravel production.”

This witness testified that the fair market value of the property prior to the taking was $122,700 or $300 per acre, and that after the taking the remaining property had a market value of $84,051, leaving a difference of $38,649 as damage to the property because of the taking. This witness testified that he took into consideration comparable sales in the area consisting of one sale of upland at $200 per acre; another sale of 147.99 acres at $223 per acre, and another at $187.50 per acre. This witness then testified as follows:

"Q. Tell the jury why you feel the market value has been effected in the sum of $38,649?
A. Well, if I want to buy a 378 acre place or had a prospect looking at it, he would, in my opinion, sincerely question the access if I’ve got limited access to property over a property that didn’t have any restrictions. 378 acres in one tract where you could go from one side to the other, the cattle could move freely from one side to the other, and like property that would be controlled with access and subject to flooding where you couldn’t get cattle back through the area that remained open, then it would seriously affect the market value of the property.”

On cross-examination Mr. Wilburn testified that he had been on the property eight or ten times since 1967 and he then testified as follows:

"Q. Talking about this highest and best use, now as far as cattle ranching and gravel mining is concerned, what portion of that do you place the highest and best use on for cattle ranching?
A. To the extent of the market value of cattle land, grazing land, river bottom land.
Q. You put the entire tract all as cattle ranching?
A. It is enhanced by the value of the gravel being underneath it.
Q. What I want to know, are you placing so-called and across the board highest and best use to the whole 409 acres as cattle ranching?
A. That would be the primary use for it.
Q. How much of your $38,649 that you testified to are you attributing to the gravel portion of it?
A. You don’t separate it, it’s being enhanced. Like a farm being nearer town. It may be better but you don’t know how much better. It depends on the market.”

On redirect examination Mr. Wilburn testified that in arriving at his opinion as to the value of the land before and after taking, he took into consideration the fact that there were gravel deposits on the land, and that he took into consideration sales of comparable land containing gravel deposits. He testified as to sales of comparable gravel land in Clark and Little River Counties ranging in price from $380 to $700 per acre. The Highway Department moved to strike Mr. Wilburn’s testimony in its entirety for the reason it stated as follows:

“He put the highest and best use of cattle ranching and he says it’s enhanced by gravel deposits which he also states has a highest and best use. It is our position the highest and best use are totally inconsistent. You cannot graze cattle and mine gravel off the same tract of land. He was unable to separate that portion of the testimony he attributed to the highest and best use for gravel as to the cattle ranching. It is inconsistent and improper and we move it be stricken.”

The motion was denied by the trial court.

Mr. P. M. Brown, another real estate appraiser and broker from Texarkana, testified as an expert for the owner. He testified that he had been familiar with the land involved since the taking in 1966. He testified that the fair market value of the entire tract at the time of the taking was $143,150, and that after the taking the value was $112,785, leaving a difference of $30,365 which he considered as just compensation. He also testified that he took into consideration comparable sales within the area including 160 acres which sold for $28,800, which amounted to $180 or $190 per acre; another sale of 324.40 acres which sold for $62,500, or approximately $190 per acre. This witness also testified as to sales of lands for gravel including a 20 acre tract near the Caddo River which sold for $400 per acre, and a 40 acre tract which sold for $875 per acre. He also testified as to another sale of comparable partially overflow land on Little River consisting of 95.22 acres which sold for $525 per acre. This witness testified that in his opinion the highest and best use of the property involved was for farm and grazing land enhanced by gravel deposits, and that in his opinion, just compensation would be $30,365. Mr. Brown then testified that he based his severance damage on lack of access from the west portion to the east portion during the winter months and during wet weather. This witness testified that there were considerable gravel deposits on both sides of the right-of-way and then testified as follows:

"Q. Do you know whether or not this gravel has been marketed?
A. Yes, sir. There has been gravel marketed off it.
Q. "You know whether it has been marketed in a commercial quantity?
A. Yes, sir. The evidence is on the ground.
Q. Did you use this as a basis or one of the basis for your opinion in arriving at the fair market value of the land before and after the taking?
A. Yes, sir. I estimated the land had been enhanced by deposits of gravel that would be commercial.”

An then on cross-examination this witness testified as follows:

“Q. Mr. Brown, you put the highest and best use on the land as grazing and enhanced by gravel deposits?
A. Farming and grazing and enhanced by gravel deposits.
Q. How much did you put on the gravel deposits?
A. I didn’t put any separate—I used what the market would pay.
Q. Does this highest and best use apply to the entire 409 acres?
A. Yes, sir.
Q. It applies to the full 409?
A. That is what I—The market would pay for it.”

On cross-examination this witness continued:

“Q. One final question, sir, on your, I believe the difference you testified to as just compensation was $50,365, is that correct?
A. That is correct.
Q. That is correct?
-A. Yes, sir.
Q. And you say that you have not, you do not have a separate breakdown of that land which is suitable for grazing and that land which is suitable for gravel mines?
A. No, sir. I did not break it down. The market wouldn’t break it down. They buy it as one tract.”

Mr. Benjamin Clardy, a geologist, testified as to extensive gravel deposits on the land involved. He testified that he would estimate from the walls he saw in the gravel pits that the deposits would run from six to eight feet deep, and that he would not be surprised if they would not reach a depth of 10 feet in some places. He testified that he had no idea how much gravel was in the 409 acres; that he knows there are several gravel deposits in the area, but that it would be presumptuous on his part to attempt to testify to the extent of any of them.

Mr. Charles Scott, a highway department appraiser, testified that in his opinion the highest and best use of the land was for cattle grazing. He testified that the market value of the entire tract was $51,500 or approximately $126 per acre prior to the taking, and that in his opinion the fair market value after the taking is $42,750 or approximately $114 per acre, leaving a difference of $8,750 as damages and just compensation for the taking. Mr. Scott also based his opinion on comparable land sales in the area ranging from $76.50 per acre to $191 per acre including improvements.

The court instructed the jury (without objections) as follows:

“The existence of gravel deposits on the condemned land is an element which you may take into consideration, but only to the degree that it influences the fair market value of the land.”

As to the Commission’s first point, we are of the opinion that there was sufficient evidence of a market for gravel to justify the court in allowing testimony as to gravel deposits on the subject land.

As to the Commission’s second point, we are of the opinion that the trial court did not err in its refusal to strike the value testimony of Charles Wilburn and P. M. Brown. Both of these witnesses testified that the highest and best use of the land was for cattle grazing, but that the market value was enhanced by gravel deposits. Both witnesses testified that they took the gravel deposits into consideration in arriving at their opinion as to the market value, but both witnesses were unable to separate the values attributable to the highest and best use as farm and grazing land from the value as enhanced by the gravel deposits. There is no evidence in the record that the taking of the right-of-way disturbed the gravel deposit on the land at all.

When a part of an owner’s tract of land is taken by eminent domain in this state, the rule is well settled that his just compensation is measured by the difference in the value of the land, when put to its highest and best use, immediately prior to the taking and immediately after the taking. Ark. State Highway Comm’n v. Fox, 230 Ark. 287, 322 S. W. 2d 81; Ark. State Highway Comm’n v. Maus, 245 Ark. 357, 432 S. W. 2d 478. Apparently the only intent and effect of the evidence in this case pertaining to gravel at all, was simply to show that this entire tract of land would bring a higher price per acre on the open market, both before and after the taking, because it contained gravel of commercial value.

The appellant-Commission cites and relies on statements in 4 Nichols on Eminent Domain, 1970 Cumulative Supplement, pages 61 and 217, as follows:

“Where different segments of a parcel are susceptible of valuation on the basis of differing highest and best uses, it is error to attribute an overall or average unit of value to the entire parcel.
While valuable mineral deposits on condemned land constitute an element of damages to be considered, if the development of such deposits is inconsistent with the highest and best use upon the basis of which the land is valued, such deposits may not be considered.”

We do not agree with the Commission that Wilburn and Brown based their market valuation on two inconsistent highest and best uses. In fact, they refused to do so. They both clearly attributed the highest and best use as a cattle ranch or pasture land, and testified that it was more valuable per acre, on the market, because it contained gravel. No one testified that any one segment of the land involved in this case was susceptible of valuation for gravel mining purposes. Its highest and best use was for cow pasture land and there is no evidence that its value enhancement by its gravel content was any less after the taking than it was before.

By fair market value is meant the amount of money which a purchaser who is willing but not obligated to buy the property would pay to an owner who is willing but not obligated to sell it, taking into consideration all uses to which the land is adapted and might in reason be applied. Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792.

In 4 Nichols on Eminent Domain, 3rd ed., at page 402, § 13.2, is found the following:

"Wnen a tract of land taken by eminent domain contains ore, stone, coal, sand, gravel, peat, loam, oil, gas or other valuable deposits constituting part of the realty, the existence of these features can be taken into consideration in determining the compensation so far as they affect the market value of the land. The same rule would be applicable where the land is covered with growing crops or trees capable of being converted into lumber. But even in such case, the market value of the land as land remains the test. Hence, there can be no recovery for any of the foregoing elements valued separately as saleable items additional to the value of the land.”

The “before and after” valúe rule only applies in condemnation cases where the owner is claiming severance damage, or damage to the remainder. Where there is no claim for severance damage, the owner’s compensation for the land condemned is the market value thereof at the time of the taking for all purposes. Lazenby v. Ark. State Highway Comm’n, 231 Ark. 601, 331 S. W. 2d 705.

In arriving at the before and after value, of land in condemnation proceedings, the owner is entitled to compensation based on the market value of the land put to its highest and best use, but he is not required to confine his evidence to only the highest and best use to which the land is adapted. He may offer evidence of all purposes, comprehending its availability for any use for which it is plainly adapted as well as its most valuable purpose for which it can be used and will bring most in the market. Scott v. State, 230 Ark. 766, 326 S. W. 2d 812; Desha v. Independence County Bridge District No. 1, 176 Ark. 253, 3 S. W. 2d 969; Rinke v. Union Special School District No. 19, 174 Ark. 59, 294 S. W. 410; Weidemeyer v. Little Rock, 157 Ark. 5, 247 S. W. 62; Drainage District No. 11 v. Stacey, 127 Ark. 549, 192 S. W. 904.

In 1 Orgel on Valuation Under Eminent Domain, 2d Ed., § 30, is found the following:

“A properly qualified witness may express an opinion that the property has a ‘fair market value’ of $10,000, and he may explain, both on direct and on cross examination, the particular qualities of the property which lead him to conclude that it is worth this amount. But he is not ordinarily permitted to testify that the property ‘has a value of $10,000 for building lot purposes’ or ‘for the best

Property has but one market value, not one value for one use and another for another. Napa v. Navoni, 56 Cal. App. 2d 289, 132 P. 2d 566 (1942). And as was said by the California District Court of appeal in Joint Highway Dist. No. 9 v. Ocean Shore R. Co., 128 Cal. App. 743, 18 P. 2d 413 at p. 417:

“This market value may be greater or less than the value in use to either the owner or the condemnor, but in the eyes of the law it is a fixed amount determined by ‘the highest sum which the property is worth to persons generally, purchasing in the open market in consideration of the land’s adaptability for any proven use.’ ”

In the case at bar neither Wilburn nor Brown attempted to place a value on the land for farm and cattle grazing as distinguished from a different value for gravel production. They both simply testified that the highest and best use of the land would be for a cattle operation, but that its value was enhanced by the fact that it had gravel deposits that would be considered by a purchaser in the open market. They both testified that the difference in the before and after market value was caused by the diminished access to that portion of the land east of the right-of-way.

The verdict of the jury was well within the difference in market value as testified to by Wilburn and Brown, and we conclude that the judgment of the trial court rendered on the verdict should be affirmed.

The judgment is affirmed.


author: Conley Byrd Justice.

text:
    Arthur RATZLAFF et al v. FRANZ FOODS OF ARKANSAS
    5-5600, 5-5601 & 5-5602
    468 S. W. 2d 239
    Opinion delivered June 21, 1971

      John O. Maberry, and Putman, Davis if Bassett, for appellants.

      Crouch, Blair, Cypert if Waters, for appellee.
   Conley Byrd Justice.

Appellants Mr. and Mrs. Arthur Ratzlaff, Mr. and Mrs. Harold C. Collins and Mr. and Mrs. S. D. Molter brought separate actions against appellee Franz Foods of Arkansas, a subsidiary of Tyson’s Foods, an Arkansas Corporation, to recover damages for certain noxious wastes discharged into the sewer system of the city of Green Forest, Arkansas, that allegedly polluted Dry Creek, a stream running through appellants’ properties. The trial court sustained a demurrer and dismissed each of the complaints. The three causes have been consolidated in this court because of the identity of the issues.

The complaints set forth that appellants are dairy farmers owning lands through which Dry Creek runs and then allege:

“(5) That the defendant, in its business as a chicken processing and fertilizer plant, utilizes the sewers of the City of Green Forest, Arkansas, under a contract which requires and makes it the duty of the defendant to remove and eliminate from its deposits into the sewer system, some or all of the following: Refuse, offal of fowls, blood, wastes and other unwholesome, offensive and noxious waste products; that one purpose of this contract was to prevent the sewage facilities of the City from being oversaturated and to prevent harm to landowners located down-stream from the City sewage facilities and that the defendant at all times herein knew of the purpose of this contract.
“(6) Defendant is guilty of the following acts of negligence which were a proximate cause of plaintiffs’ injuries and damages as hereinafter alleged:
(a) That the defendant, in violation of its contractual duty with the City of Green Forest, carelessly and negligently deposited great quantities of offensive waste products into the sewers of the City of Green Forest and thereby polluted and made foul Dry Creek to plaintiffs’ damage.
(b) That defendant failed to comply with its contract with Green Forest by allowing waste, blood, refuse and other unwholesome products to get into the sewer system when it knew or by exercising ordinary care should have known that the types and quantities of waste being deposited into the sewer system were in violation of its contract with the City and would result in pollution of Dry Creek to the injury of plaintiffs.
(c) That defendant negligently washed down its processing facilities so as to cause the pollution originally contracted against to occur; that defendant knew or should have known that it was violating its duty under its contract so as to injure plaintiffs and was in a position to prevent a recurrence of such injury and failed to prevent such recurrence to the damage of plaintiffs.”

In determining whether or not the complaints state a cause of action we find that we must consider and analyze three established principles of law. The first proposition is the general rule that one who creates a nuisance such as pollution of a stream is liable to lower riparian owners for the direct and probable consequence of the nuisance. See Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S. W. 2d 442 (1947) and Spartan Drilling Co. v. Bull, 221 Ark. 168, 252 S. W. 2d 408 (1952). The second proposition is that a user of a city sewer is clothed with immunity from liability once he lawfully deposits his sewage in the sewage system. The theory upon which immunity from liability is granted to the user is that once the sewage is deposited in the city’s conduit, the user no longer has control of the disposal of the sewage because by law the city is given the exclusive right to control and dispose of sewage. See Carmichael v. City of Texarkana, 116 F. 845, 54 C. C. A. 179 (1902). h was upon this theory, apparently, that the trial court dismissed appellants’ complaints.

The third principle of law is that a party who owes no obligation to third persons or the public in general may by contract assume an obligation to use due care towards such third persons or the public in general. See Hogan v. Hill, 229 Ark. 758, 318 S. W. 2d 580 (1958) and Collison v. Curtner, 141 Ark. 122, 216 S. W. 1059 (1919). When this principle is read in connection with the complaint allegations that the appellee violated its contract with the city to remove certain refuse to prevent oversaturation of the city’s sewage disposal facilities, we find that the trial court erred in sustaining the demurrers and dismissing the complaints. This is supported both by logic and authority. The very essence of the immunity from liability, stated in the second principle above, is that the user of the city’s conduit loses control of sewage once it is deposited and that exclusive control thereafter is in the city. However here the allegation is that the user who contracted not to oversaturate the city’s treatment facilities violated such contract and thereby caused a pollution of the appellants’ lands. Under such allegations it does not logically follow that a user in violation of his contract can wrest the control of the city’s sewage facilities from the city and at the same time stand behind the immunity which the law accords in the second principle stated above. Furthermore, in Carmichael v. City of Texarkana, supra, it was recognized that a user under some circumstances could be liable. It was there stated:

“This conclusion has not been reached without a careful consideration of the broad averments in the bill that the demurrants and the city, acting together in concert at the same time, have, by means of the open sewer and its use, created and maintained this nuisance, and that they have not ceased to do so. If these allegations stood alone, they would undoubtedly charge these citizens with liability; but they are accompanied with averments that the demurrants invoked the power of the city to construct the sewer, that the city was guilty of gross negligence in building it, and that the demurrants had used, occupied, and operated it ‘by authority of, under, and from the city.’ When all these statements are read together with the statutes which vest the right to construct, to change, to repair, and to control this sewer exclusively in the city, there is no escape from the conclusion that the acts and omissions of the city, and not those of the citizens, constituted the proximate cause of the injury to the complainants, and that the inhabitants who requested the construction and operation of the improvement are not liable for those acts and omissions, because they had no power to command or control the city in their performance.”

Reversed and remanded.


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

text:
    ARKANSAS AVIATION SALES, INC. v. CARTER CONSTRUCTION COMPANY et al
    5-5570
    469 S. W. 2d 118
    Opinion delivered June 21, 1971
    [Rehearing denied August 9, 1971.]

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellant.

      Holmes & Byrd, for appellees.
   Frank Holt, Justice.

Appellee, Carter Construction Company, filed an action for a declaratory judgment against appellant, Arkansas Aviation Sales, Inc., to determine the ownership of a Piper Cherokee Aircraft. Appellee asserts ownership by the provisions of a written lease-purchase agreement. Appellant claims that this written agreement provides for a lease only and that it, therefore, retains ownership of the plane following completion of the agreed monthly rental payments.

The trial court found that appellant agreed to sell the aircraft to appellee under a lease-purchase agreement, and that the option to purchase was deleted from the contract “by agreement of the parties thereto and was not done with the intention of making said instrument a lease only of said aircraft * * For reversal appellant contends that the chancellor erred in admitting parol testimony which contradicted a prior written “Aircraft Lease” executed between the appellant and appellee. There is no appeal from that part of the decree finding a balance due on the contract and a note which were assigned to a local bank.

On May 1, 196£, the parties executed a five-year “Aircraft Lease” which contained an option to purchase clause. Appellee had the right to apply its monthly rental payments on the purchase price of $19,055.00 (whiclf included sales tax) plus any accrued interest. There was evidence that about two weeks later the parties, by mutual agreement, deleted the lease-purchase option. Several months after the written agreement was made the corporate ownership of appellant was transferred to the present owners.

Appellant does not dispute “that the parties mutually agreed on having the language in the contract relating to the option to purchase stricken.” Even so, appellant objects to the chancellor permitting the original parties to the transaction to testify that, at appellee’s accountant’s suggestion, the option to purchase was deleted for tax benefits to appellee and that this deletion was with the mutual understanding that the written agreement would remain a lease-purchase transaction.

In Ferguson v. C. H. Triplett Co., 199 Ark. 546, 134 S. W. 2d 538 (1939) we reiterated that: “It is well settled in this state that parties to a written contract may, subsequent to its execution, modify it and substitute a valid oral agreement therefor.”

In the case at bar we think the chancellor was correct in permitting these original parties to this written contract to testify about their “side agreement.” In Restatement, Contracts § 240 we find:

“(1) An oral agreement is not superseded or invalidated by a subsequent or contemporaneous integration, nor a written agreement by a subsequent integration relating to the same subject-matter, if the agreement is not inconsistent with the integrated contract, and
* # *
(b) is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.”

The Committee Comment on Subsection (1) (b) reads:

“d. The justification of the Parol Evidence Rule is that when parties incorporate an agreement in a writing it is a reasonable assumption that everything included in the bargain is set down in the writing. Though this assumption in most cases conforms to the facts, and the certainty attained by making the rule a general one affords grounds for its existence, there are cases where it is so natural to make a separate agreement, frequently oral, in regard to the same subject-matter, that the Parol Evidence Rule does not deny effect to the collateral agreement. This situation is especially likely to arise when the writing is of a formal character and does not so readily lend itself to the inclusion of the whole agreement as a writing which is not limited by law or custom to a particular form. Thus, agreements collateral to a negotiable instrument if incorporated in it might destroy its negotiability, and in any event would deprive it of the simplicity of form characteristic of negotiable paper. So in connection with leases and other conveyances, collateral agreements relating to the same subject-matter have been held enforceable. These illustrations of what agreements ‘might naturally be made’ without inclusion in an integrated contract are not exclusive. It is not essential that a particular provision would always or even usually be made in a separate collateral agreement. It is enough that making such a provision in that way is not so exceptional as to be odd or unnatural.”

In Magee v. Robinson, 218 Ark. 54, 234 S. W. 2d 27 (1950) we approved this section of the Restatement and permitted parol evidence to establish a contemporaneous oral agreement relating to a deed. There we said:

“* * * the separate agreement as to possession of the lands is neither odd nor exceptional, but is one that might naturally be made by parties situated as were appellees and appellant at the time the deed was executed.”

Also, in Bourque v. Edwards, 232 Ark. 665, 339 S. W. 2d 436 (1960) we again recognized the validity of § 240 in holding that although parol evidence is not admissible to vary a written instrument, it was there admissible to prove a “side agreement” with respect to whether a conveyance of real property included a butane tank.

We think this section is likewise applicable in the case at bar. There was evidence, adduced that the customary and popular method of acquiring an aircraft by a business enterprise was by the lease-purchase contract and, as previously indicated, this provision was eliminated only for tax purposes. Further, the transaction was entered on appellant’s books as a sale with the sales tax added and paid. In the circumstances, we are of the view that the deletion of the lease purchase paragraph from the written contract, for tax purposes, was a proper subject for a “side agreement;” that this deletion would not affect the original agreement between the parties and is consistent with their contract; and that it is an oral or collateral agreement which “might naturally be made as a separate agreement by parties situated as were the parties to the written contract.” Therefore, the trial court did not err in admitting parol testimony by the original parties to establish their “side agreement” made subsequent to the parties’ written contract, and to show the scope and effect of this oral agreement.

There being no contention that the findings of the chancellor are against the preponderance of the evidence should the parol evidence be admissible, the decree is affirmed.

Affirmed.

Byrd, J., not participating.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I cannot grasp the reasoning by which the court is saying that the effect of the action of the trial court and of the majority is not to permit the contradiction, alteration, or variation of, and addition to the terms of a valid and unambiguous contract by parol evidence, contrary to prior decisions of this court on the subject. Our rule permitting the modification of a written contract is appropriate, but its applicability here terminates before the end result is reached.

A clear, unambiguous written lease-purchase agreement was entered into between the parties. By mutual agreement, that lease-purchase agreement was modified to eliminate from it all clauses pertaining to purchase of the plane, making it a clear, unambiguous written lease agreement upon whicl appellant relied in the chancery court. The modification was accomplished by striking through the appropriate paragraphs, and the initialing of the action by the parties. The agreement, as modified, is that which appellee endeavored to vary and alter by proving a contemporaneous oral agreement that the lease-purchase agreement remained in effect. In pleading, however, the appellee (plaintiff) only alleged that when the pertinent “purchase” paragraphs were eliminated, it was not the intention of the parties that the contract become a straight lease agreement, but that the plaintiff retained his option to purchase at any time prior to expiration of the lease, upon the very terms deleted. It also asserted that the interpretation of the contract sought by appellant would result in undue hardship to appellee and unjust enrichment of appellant. There was a further allegation by appellee that there was no consideration for the deletion of the clauses in the contract.

According to the officer of appellee who conducted the negotiations, the paragraphs were stricken two weeks after the contract was signed. The salesman for appellant stated that they were deleted the same day the transaction took place. They were stricken on advice of appellee’s accountant, so that rental payments could be deducted by appellee on income tax returns. After the deletion, appellee did charge all rental payments off as such on its income tax returns. Language not stricken included the following:

The Aircraft will be returned to the lessor at its office, aforesaid by the Lessee at the Lessee’s expense at 12 o’clock Noon on the 1st day of April, 1970, in the same condition as when received except for reasonable wear and tear from ordinary use.
w ir
Lessee, at his own expense, agrees to keep the Aircraft in good condition and repair and will return the Aircraft to Lessor upon the termination of this lease in the same condition as when received except for reasonable wear and tear from ordinary use.

Oral testimony simply is not admissible to engraft contemporaneous oral agreements upon a written contract. Archer v. Bucy, 235 Ark. 244, 357 S. W. 2d 636, and Jones v. Cox, 227 Ark. 750, 301 S. W. 2d 12, present close parallels to the present case, and reiterate our oft-stated parol evidence rule in this regard. In Cox, an effort was made to engraft a provision that the purchase price for a concrete mixer would be paid for solely from the net profits from its operation. See also: Kelly v. DeWees, 200 Ark. 770, 140 S. W. 2d 1011, where an effort was made to show a contemporaneous oral agreement that a written separation agreement would not be incorporated into a divorce decree; Bridges v. Harold L. Schaefer, Inc., 207 Ark. 122, 179 S. W. 2d 176, where a purchaser under a contract for delivery of equipment f.o.b. factory without service wiring or plumbing sought to show a parol agreement that the seller was to install the equipment; Kimmer v. New Gin, Inc., 199 Ark. 1187, 137 S. W. 2d 749, where the maker of a note having an apparently unconditional obligation thereon sought to show an oral agreement that the note be paid by application of the earnings of his shares of stock in the corporate payee; Atkins v. Garner, 222 Ark. 470, 261 S. W. 2d 266, where the buyers of automobiles sought to prove a contemporaneous oral agreement that they were not to be personally liable on an unconditional written obligation for the payment of the balance of the purchase price. Many other such examples could be cited.

It must be kept in mind that this is not an action to reform a contract, or one based on fraud. It should also be kept in mind that the purported oral agreement would directly contradict the written contract as modified by a subsequent agreement of the parties. Neither is it a case where there was an attempt to show that the binding effect of the contract was dependent upon any condition or contingency.

I do not agree that the wholesome rule applied in the cases above cited is made less applicable by the section quoted in Restatement of the Law or by Magee v. Robinson, 218 Ark. 54, 234 S. W. 2d 27, or Bourque v. Edwards, 232 Ark. 665, 339 S. W. 2d 436. As I read Section 240 of Restatement, Contracts, insofar as applicable here, it prohibits, rather than permits, the result here. Comments b and c in pertinent part read:

b. A collateral oral agreement in terms contradictory of the express words of a contemporaneous or a subsequent integration is necessarily inoperative. If there is any exception to this principle it is found in the law of negotiable paper, and is outside the Restatement of this Subject which relates to the general law of contracts. A prior (but not a contemporaneous) written agreement is superseded as completely as if it were oral.
c. Even where the extrinsic agreement is not in terms contradictory of the integration, there may be a clear implication of fact from the writing that it fully expresses the whole bargain in regard to the matter in question. To contradict such an implication of fact by extrinsic evidence is no more permissible than to contradict the direct words of the writing. In either case the writing is inconsistent with the oral agreement.

The collateral oral agreement is certainly contradictory of the express terms of the writing, and particularly of those terms hereinabove quoted. There could be no clearer implication of fact that the modified writing fully expresses the whole bargain between the parties than exists here. The manner in which the modification of the original written contract was accomplished leaves room for no other implication.

Illustrations of the application of Section 240 in the Restatement text are pertinent:

A and B in an integrated contract respectively promise to sell and to buy Blackacre for $3000. A contemporaneous oral agreement that B shall be allowed to pay the price by work taken at a stated rate of compensation is inoperative. The oral agreement is to pay in another medium than money or an obligation for money.
A and B in an integrated contract respectively promise to sell and to buy a specific automobile. A contemporaneous oral undertaking on the part of A to warrant the quality of the machine beyond the warranties that the law would otherwise impose is inoperative. Oral representations by A of the quality of the machine which induce B to enter into the written contract are, however, operative to create a warranty. The representations are independent of the contract through an inducement to its formation, and the obligation of a warranty is imposed by law not from a promise but from an assertion of fact.

In Magee v. Robinson, supra, the contemporaneous oral agreement was not contradictory of the terms of the written deed, which usually contains no statement as to delivery of possession. In addition to, and immediately following, the portion of the opinion quoted in the majority opinion, we said:

Moreover, that part, of the contemporaneous oral agreement which provided that Robinson should retain possession and continue to receive the rents from Davis until Jan. 1, 1947, in lieu of interest on the deferred balance of the purchase price during that period, tends to explain the stipulation in the deed that the notes bear interest from Jan. 1, 1947.

This holding was in keeping with another illustration of their precepts by the writers of Restatement, as follows:

A and B in an integrated contract respectively promise to sell and to buy specified goods. No time or place for delivery is specified. If no agreement is made as to these matters the rule of law is that the goods are deliverable in a reasonable time at the seller’s place of business. A contemporaneous oral agreement that the goods shall be delivered within thirty days, at the buyer’s place of business, is operative.

In Bourque v. Edwards, supra, there was no objection to the testimony involved, and the court said that it could not be made for the first time on appeal. Furthermore, the question involved was whether a butane tank constituted a part of the realty conveyed by the deed, or whether it was personalty, as the court said the parties to the deed had treated it. It does not appear that the deed contained any statement on this subject at all. This case is hardly authority for the majority’s result here.

While appellee argues that, in any event, there was no consideration for the modification, this seems to me to be a self-defeating argument. It is well founded only if appellee’s version of the modification is accepted. If the agreement for modification was the elimination of the lease-purchase option, consideration passed to appellee by his benefit through tax deductibility of the full amount of its payments as rental and to appellant through its being relieved from the obligation to pass title to appellee when all the payments had been made. If the lease-purchase option remained in effect by side oral agreement, no consideration whatever for the modification passed to appellant.

I would reverse the decree and enter judgment for appellant.


author: Frank Holt, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Annie Sue McDONALD
    5-5603
    468 S. W. 2d 231
    Opinion delivered June 21, 1971

      Thomas B. Keys and George O. Green, for appellant.

      Pickens, Pickens ir Boyce; By: James A. McLarty, for appellee.
   Frank Holt, Justice.

This is a condemnation proceeding in which the State acquired 3.72 acres of land in fee and a permanent drainage easement upon another .46 acres of land belonging to appellee landowner. This acquisition from appellee’s 102-acre farm was necessary for the relocation and construction of a part of U. S. Highway No. 64. The area taken in fee consisted of a 60-foot strip along the northern boundary of the farm. The easement acquired is located to the south and adjacent to the area taken in fee. Appellee’s farm is near the City of McCrory and fronted approximately one-fourth mile on State Highway No. ■ 17. The landowner testified that the highest and best use of her land was for residential development and estimated her damages at $13,-000 ($102,000 valuation before the taking and $89,000 after). Three expert witnesses testified in appellee’s behalf to the effect that the highest and best use of the property was for residential purposes. The damages estimated by these witnesses were $4,181, $3,837, and $3,762 respectively. Appellant’s only witness estimated that the land had been enhanced in value in the amount of $2,800 ($31,000 before and $33,800 after). Appellant’s estimate was on the basis that the highest and best use of the lands fronting on Highway No. 17, and at its junction with the new construction of No. 64, was commercial, with the remainder being agricultural. The court, sitting as a jury, found there was neither severance damage nor enhancement to the market value of the remaining land. The court awarded $4,800 for the lands actually taken. For reversal of that judgment, appellant contends there is no substantial evidence upon which the trial court, “upon its own motion,” based its findings of fact.

Appellee, 81 years of age, testified on direct examination, without objection, that her father had purchased the property in 1888 when she was one year old; that this property was part of a larger farm which had been divided between her and her brother; that she had not lived on her particular portion of the farm, although she had lived on that portion now belonging to her brother; that she had owned the property for “about 40 years” and lived nearby; that it is located near the city limits of McCrory; that she had farmed the land through her tenants during the 40 years; that she had sold timber off the property; that she had been on the farm many times and had made improvements upon the land; and that she was familiar with the surrounding land which had been developed into a residential section. She further testified that the highest and best use of the property is for residential development and that in her opinion the fair market value of her property was $102,000 before the taking and about $89,000 after the taking, or damaged in the amount of $13,000. A landowner’s opinion testimony is admissible as to the question of value of his property, regardless of his knowledge of property values, in the event he has an intimate acquaintance with his property. Arkansas State Highway Comm. v. Duff, 246 Ark. 922, 440 S. W. 2d 563 (1969); Lazenby v. Arkansas State Highway Comm., 231 Ark. 601, 331 S. W. 2d 705 (1960).

We think the appellee has shown that she is sufficiently familiar with her property. Having farmed the property through tenants for 40 years, she is certainly aware of the value of the property in terms of the amount of rental income it produces each year, as well as any income derived from the sale of timber. This evidence, along with the fact that she had knowledge of the residential development in surrounding areas, is sufficient to show that her testimony as to damages in the amount of $13,000 is not without a reasonable basis. Any infirmities in her testimony bear upon its weight.

On cross-examination appellant questioned appellee as to whether she had received any offers to purchase portions of her property and the prices made in such offers. Appellee replied that although she had received offers almost every week from prospective purchasers desiring to purchase the property for residential and commercial purposes, she had not allowed a price to be set because she did not intend to sell. Appellee was not further questioned concerning the basis used to estabish value. This limited cross-examination was insufficient to destroy the reasonable basis of her value testimony which she had demonstrated on direct examination. In Arkansas State Highway Comm. v. Clark, 247 Ark. 165, 444 S. W. 2d 702, we said:

"Since Clark did not base his opinion on. comparable sales, appellant’s assertion that he did not show that he was acquainted with the market and other sales in proximity to his lands relied upon by appellant’s experts is of little consequence. Appellant never asked Clark about his knowledge of these sales or for an explanation of their comparability. Consequently, it is in no position to contend that this lack of knowledge made his testimony insubstantial.”

Likewise, in the case at bar appellant’s failure to further seek an explanation of the basis used by appellee to determine her land value precludes it arguing on appeal that her evidence is not substantial.

Furthermore, there was testimony, without objection, by an expert witness for the landowner that comparable lands in the surrounding area had sold for $1,-200 an acre about ten months after appellee’s land had been taken by appellant.

In the case at bar the landowner, as we have indicated, was thoroughly familiar with the utilization of her property, the improvements, and its adaptability for the highest and best use. She was also familiar with the usages of the surrounding lands. Her expert value witness corroborated her testimony and placed a value upon her lands taken at $1,200 per acre based upon a comparable sale. The court awarded appellee $4,800 as just compensation. In doing so, the court allocated $4,464 for the 3.72 acres taken in fee ($1,200 per acre) and the blance of the total award represented just compensation for the .46 acre taken for a permanent easement. In our view the findings of the court, sitting as a jury, are based upon substantial evidence.

Affirmed.

Brown, Jones and Byrd, JJ., dissent and would reverse because the landowner showed no reasonable knowledge of market values as to residential property. Arkansas State Hy. Comm’n v. Darr, 246 Ark. 204, 437 S. W. 2d 463 (1969).