Arkansas State Highway Commission v. Carpenter

• Decision Date: 14 October 1963
• Docket Number: No. 5-3028,5-3028
• Citation: 237 Ark. 46,371 S.W.2d 535
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Joella CARPENTER et al., Appellees.
• Court: Arkansas Supreme Court

Page 535

371 S.W.2d 535

237 Ark. 46

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v.Joella CARPENTER et al., Appellees.

No. 5-3028.

Supreme Court of Arkansas.

Oct. 14, 1963.

Rehearing Denied Nov. 11, 1963.

Dowell Anders, H. Clay Robinson and Don Langston, Little Rock, for appellant.

Donald Poe, Waldron, for appellees.

ROBINSON, Justice.

This is an eminent domain proceeding in which the Arkansas Highway Commission condemned a portion of two tracts of land.It is alleged that the tract owned by appellees, C. A. and Lessie Slagle, was damaged in the sum of $850.00, and the tract owned by appellees, Allen and Joella Carpenter, was damaged in the sum of $100.00.There was a judgment for the Slagles in the sum of $3,163.00, and a judgment for the Carpenters in the sum of $2,900.00.The Highway Commission has appealed.

For reversal the appellant contends that the court erred in refusing to strike the testimony of the landowners' value witness, alleging that he did not use a proper basis for determining the before and after value.

The appellees' witness who testified to the value of the property was Donald M. Roderick, a real estate dealer in Ft. Smith, Arkansas.After having stated on direct examination his opinion as to the market value before and after the taking, Mr. Roderick was asked by counsel on cross-examination exactly how he arrived at the market value after the taking.He testified that he considered loss of land taken, replacing a fence, loss of trees, replacement of shrubs and flowers, moving the house back from the right of way line, cost for replumbing and rewiring the house after it was moved, and finally the cost for a motel or hotel for a family to stay until the workmen could get the house back in livable condition after it is moved from its present location.

All the items mentioned above, with the exception of the cost required to live in a motel, are factors to be properly considered in arriving at the before and after value.We have said that there is no set formula or pattern that must be followed in arriving at before and after value.Springfield v. Housing Authority of City of Little Rock, 227 Ark. 1023, 304 S.W.2d 938;Ft. Smith & Van Buren District v. Scott, 103 Ark. 405, 147 S.W. 440.Consideration may be given to every element which a purchaser, willing but not obligated to buy, would consider.Pulaski County v. Horton, 224 Ark. 864, 276 S.W.2d 706;Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S.W. 792.The profits of a business, however, cannot be considered in arriving at the value.Arkansas State Highway Commission v. Wilmans, Ark., 370 S.W.2d 802(1963).

Certainly, all the items mentioned by Mr. Roderick, with the exception of the cost of staying at a motel, are factors to aid in determining the difference in the before and after value of the property; these figures would likely be used by a buyer to determine market value.In Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S.W.2d 794, we quoted as follows from Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S.W.2d 796: 'Evidence of the cost of improvements for restoration purposes and relocation costs is proper.'But, we also said: 'Let it be borne in mind that these prospective expenditures are not the measure of damages, but are only an aid in determining the difference in the before and after value of the property.'

The testimony as to the cost of staying in a motel while the house is put back in livable condition cannot be considered as a factor in determining market value; but in making his objection to Mr. Roderick's testimony, counsel asked that all Roderick's testimony be stricken, and did not specifically point out that the cost of hotel or motel accommodations should not be considered in determining market value.The court was correct in overruling the motion to strike all of the testimony of Mr. Roderick.As recently as September 30, 1963, in Arkansas State Highway Commission v. Wilmans, supra, we said that a motion to exclude all the testimony of a witness is properly overruled if a part of it is competent.

Appellant makes the same objection to Mr. Roderick's testimony with respect to the Carpenter property, but what we have said regarding the witness' testimony about the Slagle land applies in a like manner to the damages sustained by the Carpenters.

Affirmed.

WARD, Justice (dissenting).

For the many reasons hereafter set out, I am unable to agree with the majority opinion.

A quick glance at the wide divergency of estimates made by different parties in this litigation emphasizes the need for strict compliance with established rules in condemnation cases wherein the taxpayers pay the bills.Appellees, Slagle, asked for $10,000 damage for the right-of-way taken by the state; their own expert witness valued the property at only $12,840 before the taking; the state's appraisers estimated their damage at $850; and the jury gave them $3,163.There is a well established rule in this state applicable to a case of this kind.In my opinion this rule was not followed in this case.

The Rule.Where there is a partial taking of a landowner's real property (as here) the following rule applies: (a) Determine the market value of the property before the taking; (b) determine the market value of the property after the taking, and (c) the difference is the amount of damages to which the owner is entitled.

Authority for the Rule.In the early case of ...