Arkansas Louisiana Gas Co., A Div. of Arkla, Inc. v. James, CA

Decision Date19 June 1985
Docket NumberNo. CA,CA
Citation15 Ark.App. 184,692 S.W.2d 761
PartiesARKANSAS LOUISIANA GAS COMPANY, A DIVISION OF ARKLA, INC., Appellant, v. Jack JAMES and Mrs. Jack James, Appellees. 84-400.
CourtArkansas Court of Appeals

Daily, West, Core, Coffman & Canfield by Stanley A. Leasure, Fort Smith, for appellant.

Gary R. Cottrell, Van Buren, for appellees.

CRACRAFT, Chief Judge.

Arkansas Louisiana Gas Company appeals from a judgment awarding Jack James and his wife the sum of $7,500 as compensation for the taking of a portion of his lands by eminent domain. It contends that the trial court erred in denying its motion to strike the testimony of the appellee and his expert witness, and in denying its motions for a directed verdict and for mistrial. We find no error.

The appellant brought this action to acquire a 40 foot right-of-way across appellees' property comprised of 2.3 acres for a pipeline. At the trial the appellee offered his testimony and that of one expert witness as to the extent of the damage resulting from the taking which amounted to $16,924. Appellant offered testimony from its expert witnesses in rebuttal. The jury returned a verdict in favor of the appellee in the sum of $7500. After appellee concluded his testimony the appellant moved that it be stricken because he had not testified either to the value of the property actually taken for the easement or the before and after value of the remainder of his property outside the easement and his testimony was therefore irrelevant. We cannot agree. The testimony in that respect is as follows:

Q. Do you have an opinion as to the fair market value of the property, 2.3 acres of property which was taken by this easement?

A. Yes I do.

Q. What is that?

A. You'd like for me to give it to you?

Q. Yes.

A. Okay, I have a total here in two separate figures -- --.

Q. Okay, I'm speaking only of the 2.3 acres.

A. Of the 2.3 acres, all right, $7,500 for the 2.3 acres. That is the right-of-way, now, the 152 rods, 40 foot wide.

Q. Yes.

A. Okay, we valued that at $7,600.

Q. And that is your opinion as to -- --.

A. The damages, for what the 2.3 acres was worth.

Q. That's the total damage?

A. For my total damages, yes, $16,924.

It is clear to us that the appellee stated that the lands actually taken for the easement had a fair market value of $7,500 ($7,600) and that when added to the reduction in market value of his other lands the total damage was $16,924.

Our law is also firmly established that a motion to strike the entire testimony of a witness is properly denied where any part of that testimony is admissible. Urban Renewal Agency of the City of Harrison v. Hefley, 237 Ark. 39, 371 S.W.2d 141 (1963); Ark. State Hwy. Comm'n v. Bowman, 237 Ark. 51, 371 S.W.2d 138 (1963). Even if some portion of appellee's testimony was inadmissible his testimony as to the value of the 2.3 acres actually taken was proof of at least one of the two elements. For that reason alone it was not error to deny a motion to strike the entire testimony. Ozark Gas Transmission System v. McCormick, 10 Ark.App. 210, 662 S.W.2d 210 (1984) and Ark. State Hwy. Comm'n. v. McAlister, 247 Ark. 757, 447 S.W.2d 649 (1969).

After his expert had testified but before closing his case appellee was recalled to the witness stand and testified that in his opinion and entire tract had a fair market value of $288,572 before the taking and a diminished value of $261,647 after the taking and that his total damages were $16,924. The appellant then moved to strike this testimony on the ground that the testimony of fair market value of the entire tract before and after the taking is not the measure of damages in partial taking cases and the testimony was therefore irrelevant. The appellant argues that the only measure to be applied for a partial taking is the fair market value of the lands actually taken plus the reduction in market value to the remainder of the tract.

While we might agree that this is the correct measure of damages for a partial taking we cannot agree that failure to strike the testimony of before and after values was prejudicial error. Our court has recognized a difference in measuring just compensation in takings by the sovereign and those by private corporations. The proper measure of just compensation to be awarded in the exercise of the sovereign's right of eminent domain is the difference in the fair market value of the entire tract immediately before and the fair market value of the remaining lands after the taking. Young v. Ark. State Hwy. Comm'n, 242 Ark. 812, 415 S.W.2d 575 (1967). In that type of case the trier of fact may consider any special benefits resulting from the public improvement and offset any resulting enhancement of value against the damages, for where the public use enhances the value of the remainder of the land, the owner is held to have received just compensation to the extent of that enhancement. City of Paragould v. Milner, 114 Ark. 334, 170 S.W. 78 (1914).

The Arkansas Constitution permits the State to delegate its power of eminent domain to private corporations but Art. 12 § 9 places the following restriction on the exercise of that right § 9. No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.

In Cate v. Crawford County, 176 Ark. 873, 4 S.W.2d 516 (1928) the court construed the requirement that the land owner be compensated in money as restricting the set-off of special benefits, or enhancement, against the value of the lands taken for private use. A private corporation as condemnor is liable to the land owner for the fair market value of the lands actually taken and any damage resulting to the remainder of the tract. Ark. La. Gas Co. v. Howell, 244 Ark. 86, 423 S.W.2d 867 (1968); Ozark Gas Transmission System v. Hill, 10 Ark.App. 415, 664 S.W.2d 892 (1984). There are no other differences in these two types of eminent domain cases in the measuring of just compensation. This constitutional restriction placed on private corporate condemnors which prevents any set-off in favor of the corporation for special benefits is intended to protect the land owner's rights to just compensation. While testimony as to the before and after values might be prejudicial to the land owner as permitting the trier of fact to consider special benefits, it prejudices no right of the appellant corporation. If there was technical error in admitting this testimony of appellee it was harmless.

It is well settled that the opinion testimony of the owner of property, because of his relationship as owner, is competent and admissible on the question of the value of his property regardless of his knowledge of property values and it is not necessary to show that the owner was acquainted with the market value of his property or that he is an expert on value. Only the weight of the testimony is affected by his knowledge of value and this testimony should be stricken only where it has no reasonable basis. Ark. State Hwy. Comm'n v. Maus, 245 Ark. 357, 432 S.W.2d 478 (1968); Arkla Gas Co. v. Downs, 11 Ark.App. 231, 669 S.W.2d 478 (1984).

The land owner testified that he had lived on this particular tract since 1959. He described his land as being highly improved and productive pasture land. Although he had not sold any land between 1960 and the date of trial he had purchased over 800 acres of land and was generally familiar with the values of land in the community. He testified to those things which he had considered in concluding that the value of his remaining property had diminished, including the facts that the easement ran within 15 feet of his home restricting his use of it and the warning signs were placed across his property along the easement. We cannot conclude that the appellee's testimony had no reasonable basis.

When the appellee was recalled to give his before and after testimony he stated his opinion as to both. The appellant did not cross-examine him to determine the basis on which those opinions had been established. Once the land owner or his expert had expressed his opinion as to the fair market values the burden was upon the condemnor to establish by cross-examination that the land owner or expert witness had no logical basis to support his opinion before the testimony was subject to being stricken. Ozark Gas Transmission System v. McCormick, supra; Ark. State Hwy. Comm'n v. Johns, 236 Ark. 585, 367 S.W.2d 436 (1963). Insofar as Southwestern Bell Tel. Co. v. Fulmer, 269 Ark. 727, 600 S.W.2d 450 (App.1980) is at variance with McCormick and cases cited there we decline to follow it.

The appellant moved to strike the testimony of the appellee's expert witness Lee Hackler. Mr. Hackler testified that he had been in the business of selling and appraising real estate for twelve years. He testified that he had made an appraisal of the appellee's property on April 21, 1982 "when the pipeline was proposed" but had not yet been put down. He stated that he had visited the property subsequent to the laying of the pipeline and was familiar with it before and after the pipeline was laid. In the course of his examination the following transpired:

Q. Did you make an appraisal on the property?

A. I did.

Q. As to the difference in fair market value?

A. Right, I thought there was at least $12,500 damages to this property.

Q. That's the difference between-- --

A. Market value at the time and the difference because of damages that was made.

Q. In your practice in realty are you familiar with other types of property the same as this property?

A. Yes.

Q. So you had experience in dealing with this...

To continue reading

Request your trial
9 cases
  • Waitek v. Dalkon Shield Claimants Trust
    • United States
    • U.S. District Court — Northern District of Iowa
    • 14 August 1996
    ...question would not be raised until trial court had researched admissibility of polygraph evidence) (quoting Arkansas Louisiana Gas Co. v. James, 692 S.W.2d 761, 768 (Ark.Ct.App.1985)). In denying counsel's motion for mistrial, the court noted that while the issues in the motion in limine to......
  • Pope v. Overton
    • United States
    • Arkansas Supreme Court
    • 20 January 2011
    ...the remaining property. See id.; see also Arkansas La. Gas Co. v. Howell, 244 Ark. 86, 423 S.W.2d 867 (1968); Arkansas La. Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985). Fault has nothing to do with eminent domain or inverse condemnation; it is the taking of property that is act......
  • Property Owners Imp. Dist. No. 247 of Pulaski County v. Williford
    • United States
    • Arkansas Court of Appeals
    • 23 December 1992
    ...judge. Arkansas State Highway Commission v. Kennedy, 233 Ark. 844, 849, 349 S.W.2d 132 (1961). See also Arkansas Louisiana Gas Co. v. James, 15 Ark.App. 184, 692 S.W.2d 761 (1985). We cannot say that the trial judge erred in refusing to strike Mr. DeHaven's The landowners' other expert witn......
  • Klein v. Estate of Luithle, 20180433
    • United States
    • North Dakota Supreme Court
    • 11 July 2019
    ...wholesale when part of the testimony is admissible may be an abuse of discretion by the court. C.f. Arkansas Louisiana Gas Co. v. James , 15 Ark. App. 184, 692 S.W.2d 761, 764 (1985) ("a motion to strike the entire testimony of a witness is properly denied where any part of that testimony i......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT