Arkansas State Highway Commission v. Highfill

Decision Date20 April 1970
Docket NumberNo. 5--5207,5--5207
Citation452 S.W.2d 846,248 Ark. 541
PartiesARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Hansel HIGHFILL et ux., Appellees.
CourtArkansas Supreme Court

Thomas B. Keys, Philip N. Gowen, Hubert E. Graves, Little Rock, for appellant.

J. Marvin Holman, Clarksville, for appellees.

HARRIS, Chief Justice.

This is a highway condemnation case. The Commission, appellant herein, brought an action against Hansel Highfill and wife for the acquisition of 48.77 acres needed for the construction of Interstate No. 40 in Johnson County. The tracts taken in fee simple were designated as 607 and 609, and construction easements were designated 607E and 609E. On trial, Mr. Highfill testified that total damages to his property amounted to $30,000.00. Hobert C. Yarbrough a witness on behalf of appellees, testified that damages were $25,925.00. Two appraisers on behalf of the commission testified respectively to damages of $10,000.00 and $9,000.00. The jury returned verdict for the Highfills in the amount of $22,000.00 and from the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the court erred in overruling the commission's motion to strike the value testimony of Hansel Highfill on the grounds that his figures represented the value of the property to him, rather than the fair market value thereof. It is also contended that the trial court erred in refusing to strike the value testimony of the landowner as to one-half of the difference in the before and after value of the property for the reason that this portion of the landowner's testimony was predicated on the destruction of or the loss of a dairy business.

We choose to first discuss the second point. Appellant quotes from the testimony on cross-examination asserting that it makes clear that appellees were basing half of the damage testified about on the fact that they had been deprived of operating a dairy business; that this is not an element of damage that can be considered in estimating the damage to the land. The testimony is as follows:

'Q. Let me ask you this: Is a portion of the damages--And by damages you understand I mean the difference in value--I'm not talking about physical damage to the property. I'm talking about the difference in $60,000.00 and $30,000.00. Is a portion of this because you are not in the dairy business, or because you cannot operate this as a dairy farm?

A. Well, you just can't operate the thing as it is, with the highway like it is. It has cut that plum out.

Q. What I'm asking is? Is a portion of this $30,000.00 that you say you are entitled to, because you can't operate that as a dairy farm any more?

A. Well, a portion of it would be.

Q. And how much would that be?

A. I don't know hardly how you would arrive at that.

Q. You don't know what portion of that $30,000.00 would be because you can't operate it as a dairy farm any more?

A. I'd say the biggest portion of it would be because I can't operate it as a dairy farm.

Q. It would be at least half of that, wouldn't it?

A. I suppose so.'

Appellant's attorney moved to strike half the damage testified to by the landowner on the grounds that appellee attributed this percentage of damages to a non-compensable element, which motion was overruled.

We think the court committed error in denying the motion. In a very recent case, Arkansas State Highway Commission v. Wallace, Ark., September 22, 1969, 444 S.W.2d 685, we stated:

'Her testimony which formed the basis of the reversal point under discussion occurred on cross-examination. After having testified that the taking had closed down the dairy business, there was this question and answer:

'Q. Are you counting the fact as an element of damages that he is no longer in the dairy business?

'A. That's right. He is no longer in the dairy business, and the equipment is just there.

'Thereupon the condemnor moved that Mrs. Wallace's testimony on just compensation be stricken because her figures included an improper element, being loss of the dairy business. The request was denied. That element of damage is not proper in ascertaining, in these cases, damages to lands and improvements.'

In City of El Dorado v. Scruggs, 113 Ark. 239, 168 S.W. 846, this court said:

'The evidence of the plaintiff also shows that he operated a dairy on his farm at the time the stream was taken as an outlet for the sewer. His dairy business was not a part of the realty, and if the sewer district had instituted condemnation proceedings against the plaintiff, it could not have condemned either the cows used by the plaintiff or his dairy business.

'The evidence of the plaintiff also tended to show that he was unable to sell his milk because his customers believed that it was impure by reason of his cows drinking from the polluted stream. He was allowed to recover damages on this account. This was error. The injury to his dairy business was not an element to be considered in estimating the damage to his land. If his land was more profitable to be used in running a dairy than for any other use, its adaptability for that use might be considered by the jury in estimating the damages to his land by reason of the pollution of the stream, but the court could not allow as an element of damages to his land the loss he suffered in the business of operating a dairy. (Emphasis supplied.) The jury could only consider the injury that resulted to his land, and, as above stated, in determining that fact, the plaintiff should be allowed to show any use to which his property was best adapted, and its depreciation in value by reason of the fact that the stream which ran through his land had been used as a permanent outlet for the sewer.'

The italicized language sets out the proper showing that can be made. For instance, Mr. Highfill could have testified that, prior to the taking, the highest and best use of his property was for a dairy farm, and that the fair market value was $60,000.00. He could have further testified that, after the taking, the highest and best use of his land was for a small cattle operation, the value of which was $30,000.00--but this was not the type of testimony offered. To the contrary, Highfill's testimony clearly indicates that he was basing his damage on the loss of the dairy business. In addition to the testimony already quoted, the record reveals:

'Q. Well, then tell me how you arrived at your figure of $225.00 an acre for that land?

A. Because I figured it was worth that to me, the way I was set up with me milking the cows and dairy farming and milk at a good price, I figured that land was worth that much to me.'

Again:

'Q. Describe the property to the jury.

A. Well, I run a dairy on it. There's 267 acres of it in all; and I milk a bunch of cows, the most part of it for hay, and run the rest of it in pasture, and I have farmed some of it.'

Further:

'Q. Then, your improvements have been damaged, haven's they?

A. Well, of course. You can't operate any more like I did before the highway come through there. The barn is not worth anything to me any more, since that went through. The dairy barn is setting out there. It's not worth anything--it ain't worth a dime. The way it's built, I can't even use it for a storage room or nothing, because it's built on a ramp style, and you couldn't use it for nothing any more than just a milk barn. * * *

Q. What other improvements did you have out there, other than your house?

A. My milk and my hay barns and wells, and--

Q. All right, sir. How much of that $15,000.00 represents your milk barn?

So far, you've said the house is $10,000.00. How much of the other $5,000.00 is represented by the milk barn?

A. The milk barn?

Q. Yes, sir.

A. Well, that milk barn cost me about $1,200.00 and some odd dollars to build. But the value of it would be--in the way of milking, I don't know how you figure that.

Q. I'm asking you what part of that other $5,000.00 represents the value of the milk barn?

A. $2,000.00.

Q. And what did the other $3,000.00 represent?

A. It would represent the other barn and other outbuildings.

Q. You had another barn. I believe you referred to that as the hay barn?

A. The barn there at home was used for shelter barn and a hay barn.

Q. Yes, sir. I see.

A. Together. And then the milk barn is separate from that.

Q. How much would the other barn be worth? What portion of the other $3,000.00 represents the other barn?

A. I'd say $2,000.00.

Q. What's the other $1,000.00?

A. Well, it's when I built it I built it for a--Back several years ago when I was selling cream we sold sour cream, and I built this building for a milk house for separators and coolers and so on and so forth back several years ago before I built the milk barn.'

Still further:

'Q. Why is the value of your home reduced?

A. Because I can't operate my dairy any more, and I've got to come to town to work to make a living from now on. The value of my home is out there eighteen miles out of town. 1'

We think the court erred in denying the motion.

As to point one, we also agree that the figures given by Mr. Highfill represented the value of the property to him rather than the fair market value thereof. Here, again, the record is replete with testimony reflecting that appellee's values were reached on this premise. Mr. Highfill gave the before value of his property as $175.00 per acre, using this as an average. He said that some (the cleared land) would be worth $225.00 per acre, and that the woodland south of the homesite was worth (before the taking) $100.00 an acre. He did not know of any open pasture land immediately before March 1, 1968, which had been sold for $225.00 an acre, but replied that there was 'none sold. I can't tell you of any that sold for that because there's none sold. It is fronted by five gas wells around there, and there's none for sale there. You can't buy any.' Nor could the witness name pasture land anywhere that sold for $225.00 an acre. When asked how he arrived...

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2 cases
  • Arkansas State Highway Com'n v. Frisby, 96-1360
    • United States
    • Arkansas Supreme Court
    • September 18, 1997
    ...of property is allowed that privilege, but the testimony must be grounded in evidence of market value. Arkansas State Highway Comm'n v. Highfill, 248 Ark. 541, 452 S.W.2d 846 (1970). During cross-examination, Mr. Frisby said he had not established a per-acre value and that his $250,000 figu......
  • Arkansas State Highway Commission v. Davis
    • United States
    • Arkansas Supreme Court
    • June 22, 1970
    ...even though it is based wholly or partly upon hearsay. (citing cases)' Furthermore, in the recent case of Arkansas State Highway Comm. v. Highfill, (April 20, 1970), 452 S.W.2d 846, we again recognized that the landowner has the right to show the highest and best use for which his property ......

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