Arkansas State Highway Commission v. Lemley, 73--1
| Decision Date | 25 June 1973 |
| Docket Number | No. 73--1,73--1 |
| Parties | ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. W. F. LEMLEY et al., Appellees. |
| Court | Arkansas Supreme Court |
Thomas B. Keys and James N. Dowell, Little Rock, for appellant.
Gordon & Gordon, Morrilton, Williams & Gardner, Russellville, for appellees.
This is the fourth appeal of this case brought by the Arkansas State Highway Commission from judgments rendered in the Conway County Circuit Court in favor of W. F. Lemley, et al. growing out of condemnation proceedings brought by the Highway Commission in connection with the condemnation of rights-of-way for Interstate 40 through Conway County.
The appellees, Lemley and Jackson, owned 160 acres of land consisting of three contiguous 40's running north and south in Section 33 and a separate 40 acres in Section 34 lying east of the north 40 in Section 33, but separated from the three 40's by an intervening 40 acres owned by a Mr. Robinson. As pointed out on the first appeal reported in 247 Ark. 201, 444 S.W.2d 692, the Interstate 40 taking crossed the land in Section 33 from the southeast to the northwest leaving 40.8 acres south of the Interstate and 60.48 acres north of the Interstate. The 40.8 acres remaining south of the Interstate had highway frontage on a blacktop highway as before the taking, but the 60.48 acres north of the Interstate was left without public highway access. The north 40 in Section 33 is timberland and the 40 acre tract in Section 34 is also timberland. The first case was tried on the theory that the entire tract, including the 40 acres in Section 34, constituted a unit of use for agricultural purposes with access to the 40 acre tract in Section 34 being provided by an easement between the north 40 in Section 33 and the 40 acres in Section 34 over the intervening 40 belonging to Robinson. The trial court in that case submitted to the jury in issue of whether or not the lands in Section 33 and Section 34 constituted a unit in use and denied the Highway Commission's requested instruction directing the jury to disregard any damage to land in Section 34. We held in that case that the evidence was woefully lacking in proof as to unity of use between the land in Section 33 and the 40 acres in Section 34. We held, however, that the trial court did not err in refusing to give the Highway Commission's requested instruction since there was evidence from which the jury might have found that Lemley and Jackson had access to their land in Section 34 by the easement mentioned in evidence and since it was conceded there was no other public ingress and egress to and from the property.
Considerable argument in the case at bar is directed to 'the law of the case' but in 5 Am.Jur.2d, § 755, entitled 'Decision on question of fact,' is found a statement as follows:
At the first trial of this case judgment was entered on a jury verdict in the amount of $13,000 and we reversed because of erroneous instruction permitting the jury to take into consideration items not a part of the market value such as circuity of travel between the two tracts and the cost of acquiring new access. The pertinent portion of the erroneous instruction in that case was as follows:
On the second appearance of the case, 250 Ark. 186, 464 S.W.2d 605, the jury verdict was for $12,000 and we reversed for error in the trial court's refusal to strike that portion of witness Barnes' testimony concerning the land valued as a unit. Mr. Barnes had arrived at a before value of $30,000 for the 120 acre tract and an after value of $18,000. He stated that he did not place a separate value on the 40.8 lying south and west of the Interstate in arriving at his after value. He considered it as one parcel before the taking and as one unit after the taking and on the whole 107.28 acres he ascribed damages in the amount of $170 per acre in round figures. In that opinion we said:
On the third appeal to this court, 252 Ark. 549, 479 S.W.2d 855, the jury awarded damages in the amount of $14,500 and we reversed because the trial court refused to strike a part of the testimony of Mr. Jackson, one of the owners who testified as such and also as an expert on land appraisals. Mr. Jackson testified on redirect examination, pertaining to comparable sales in an attempt to establish the market value of the land involved, that the City of Morrilton had paid him $400 an acre for some land for right-of-way purposes approximately 3/4 of a mile from the property in litigation. We held that this testimony was clearly contrary to the established rule which we reiterated to be as follows:
At the last trial of this case from which comes this appeal, the jury returned a verdict of $15,000 and judgment was entered thereon. Mr. Jackson, one of the owners, testified that just compensation amounted to $22,000 and his expert witness, C. V. Barnes, testified that just compensation should be in the amount of $13,000. W. E. Hayes and Charley Scott testified as experts for the Commission and they testified to just compensation in the amounts of $5,500 and $5,250 respectively.
The appellant designates 16 points upon which it relies for reversal but only argues 10 of them, the last five having to do with the expert testimony of C. V. Barnes. We feel that it would be a waste of judicial effort to comment on all the points raised by the appellant, many of which were considered on the prior appeals, but we conclude that we must again reverse this case because of the error assigned under appellant's point six as follows:
'The trial court erred in allowing Mr. Barnes to testify as to an income valuation of the property based upon his observation of the type soil on the property, his non-expert opinion of production projected from USDA county reports, capitalization of a hypothetical crop rent by a hypothetical investment yield.'
Mr. Jackson, one of the owners, testified that prior to the taking the market value of both tracts of land was $40,000 and its highest and best use was for agricultural purposes. He valued the three 40's in Section 33 at $32,000 and the 40 acre tract in Section 34 at $8,000. He testified that after the taking the 120 acres in Section 33 was worth only $15,000 and the 40 acre tract in Section 34 was worth only $3,000, leaving a difference in value of both tracts at $22,000 as total damage and just compensation. He testified that the south 40 and part of the middle 40 in Section 33 had been cleared and part of the middle 40 had been planted in beans, but that the north 40 in Section 33 was in woodland as was the 40 acre tract in Section 34. He said no clearing had been done since the land was purchased in 1945. He placed a before taking value of $300 per acre on the south and middle 40's in Section 33 and $200 per acre on the north 40 in Section 33 and the 40 acre tract in Section 34. After the taking he valued that portion south of the Interstate at $200 per acre and that portion of the middle 40 north of the Interstate at $150 per acre. He said that the north 40 in Section 33 was only worth $75 per acre after the taking, and the 40 acre tract in Section 34 was reduced in value from $8,000 to $3,000. This valuation testimony to say the least is confusing.
In the second appeal of this case we said:
It appears that this case was not tried the last time on the 'unity of use' theory so it is rather difficult to understand how that portion of the property south of the Interstate, which still has the same access to highway frontage, has been reduced in value from $300 to $200 per acre. As to the property north of the Interstate, it is difficult to understand how the middle 40 could have been reduced to one-half its original value while the north timbered 40 in Section 33 is reduced to 37.5% of its original value, and the 40 acres of timberland in Section 34 is reduced to only 30.75% of its original value.
We find it unnecessary, however, to attempt to rationalize this testimony because we find it necessary to again reverse this case...
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