Arkansas State Highway Commission v. Snowden

• Decision Date: 08 May 1961
• Docket Number: No. 5-2414,5-2414
• Citation: 233 Ark. 565,345 S.W.2d 917
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. R. B. SNOWDEN, Jr., and Grace Snowden, His Wife, Appellees.
• Court: Arkansas Supreme Court

Page 917

345 S.W.2d 917

233 Ark. 565

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v.R. B. SNOWDEN, Jr., and Grace Snowden, His Wife, Appellees.

No. 5-2414.

Supreme Court of Arkansas.

May 8, 1961.

Dissenting Opinion May 18, 1961.

Dowell Anders, W. R. Thrasher, Little Rock, O. Wendell Hall, Jr., Benton, for appellant.

Catlett & Henderson, Little Rock, for appellees.

WARD, Justice.

This is an eminent domain action wherein, on appeal, the only issue is the amount of the judgment entered in favor of the landowners for land taken and damages to adjacent land.

HighwayNo. 67, a limited highway, runs from Little Rock to Benton, a distance of approximately 28 miles.Where the subject property is located this highway runs in a southwesterly direction toward Benton, and running almost parallel to it is the old black-topped highway, No. 5, about one and a quarter miles to the north.Approximately midway between Little Rock and Benton the Alexander road (black-topped) runs from No. 5 south (along the line between Pulaski County and Saline County) to and over No. 67(on an overpass).The subject land (owned by Mr. and Mrs. R. B. Snowden, appellees) consists of 40 acres (described as the Southeast Quarter of the Southeast Quarter of Section 12, Township 1 South, Range 14 West) being on the west side (and abutting) the Alexander road.The said forty acres does not border on No. 67 or No. 5, but is approximately 150 or 200 feet from both.

On August 19, 1957, appellant(the Arkansas Highway Commission) filed suit to condemn a small portion of Snowden's land, described substantially as follows:

Beginning at the southeast corner of the said forty (near the No. 67 overpass) and running west 84 feet, thence in a north-northeasterly direction 445.9 feet to a point, thence east 40 feet to the east line of said forty, and thence south 439 feet to the point of beginning, consisting of .322 acres.

Appellees, in their answer, asked for the value of the property taken and for damages to the rest of the forty acres.

The trial judge, sitting as a jury, rendered judgment in favor of appellees in the total amount of $12,000.In doing so the trial judge made a finding of facts to which we will later refer.Appellant appeals on the sole contention that there is no substantial evidence to support the judgment for the full amount of $12,000.

After careful consideration we have concluded, for reasons hereafter set out, that appellant's contention must be sustained.In so concluding we are aware that certain well established legal principles must be observed.The judgment in its entirety must be sustained if there is substantial evidence to support it.Missouri Pacific Transportation Co. v. Sacker, 200 Ark. 92, 138[233 Ark. 568] S.W.2d 371.The testimony must be considered in the light most favorable to appellees.Mutual Benefit Health and Accident Association v. Basham, 191 Ark. 679, 87 S.W.2d 583.It is well established that the findings of the trial judge in this instance must be treated the same as a jury verdict, but this court has the authority to decide, as a matter of law, what constitutes substantial evidence.

Value of the Forty Acres.We think the trial court erred in fixing the market value of appellees' land at $50,000.Only four witnesses testified as to the value, two for appellees and two for appellant.Both of appellees' witnesses fixed the value at $50,000.One of appellant's witnesses fixed the value at $32,000 and the other one at $30,000.All of the four witnesses appear to be equally well qualified, although one of appellant's witnesses was the only one to say he was acquainted with land values in Saline County.As a basis for their estimates both of appellees' witnesses appear to have relied heavily on the price for which a parcel of land across the Alexander (Jones land) road sold for.That land, consisting of 31.59 acres sold, they said, for $50,000.The trial court, in its finding of facts, made this statement: 'Testimony of the witnesses as to the damages is, in the opinion of the court, completely irreconcilable and leaves no room for a compromise between the figures submitted by the various experts.'

We think the above statement indicates a misconception of the function of a trial judge sitting as a jury.Since his findings are given the force of a jury finding on appeal it must follow that he should exercise the functions of a jury.As such he was not obligated to accept one figure and reject the other, but to weigh all the testimony and, if possible, reconcile it.In the caseBridgman v. Baxter County, 202 Ark. 15, 148 S.W.2d 673, 675, we find this statement:

'Five real estate men testified as to values, damages and benefits, four for the defendant and one for the plaintiffs, the latter being himself a claimant and an interested party.We do not attempt to reconcile the conflicting opinions of these witnesses, as this was a question for the jury.'

There are present in this case several elements or factors which the trial court could have but patently did not consider in an attempt to reconcile the disparity in the conclusions of the two sets of witnesses.(a)Appellees paid $20,000 for their land in 1955; which is of some significance, Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S.W.2d 86;(b)Appellees assessed this forty acres for $300, which (at 20% of the real value) indicates to some degree an actual value of $1,500, which was proper for consideration, (Ark.Stats. § 76-521andOmohundro v. Saline County, 226 Ark. 253, 289 S.W.2d 185); (c)Appellees' land fronted 1320 feet on the Alexander road while the Jones' land fronts 1247 feet, appellees' land does not front on the main highway No. 67, while the Jones' land fronts 440 feet, appellees' land does not front on highway No. 5 while the Jones' land fronts 753 feet, and the Jones' land had on it revenue producing property of an undisclosed amount which could have enhanced its value; (d) It is conceded that where the Jones' property abuts No. 67 the property is wholly commercialized, and it is further conceded that such property is more valuable than residential property such as appellees' property is conceded to be.In addition to the above, the record reflects that just south of appellees' forty acres there is a strip of land some 100 to 150 feet wide between it and highway No. 67 where there is located a filling station, a cafe, a car-sales business, and a junk yard.This condition is such that appellees' witnesses conceded that residences would likely not be built facing toward highway No. 67.

We point out also a misconception of the testimony on the part of the trial court which appears to have influenced its decision to accept the value fixed by appellees' witnesses.In his findings the trial judge said that 'the testimony was in hopeless conflict as to the highest and best use that the land could be put to,' but we find that there was no conflict on this point.Appellees' two witnesses agreed that such use was for subdivision.One of apellant's witnesses concurred unqualifiedly with appellees' witnesses on this point and the other said it could be used for that purpose.

It is admitted as common knowledge that it would cost a great deal of money to pave streets and provide for utilities to convert forty acres of land into a housing project, and one would hardly undertake such a venture unless he was sure there was a demand to justify it.We find little if any testimony of that nature by appellees' witnesses, but Wesley Adams, for appellant, stated without contradiction that there was no such demand.He further stated that there was a subdivision near appellees' property and that only one little 'Shell House' had been built on it within the last two years.Adams also stated that appellees' property was made more desirable because of the improved access to the highway.Ark. Stats. § 76-521 says that, '* * * any court or jury considering claims for right-of-way damages shall deduct from the value of any land taken for a right-of-way the benefits of said State highway to the remaining lands of the owner.'It is apparent from the finding of facts that the trial court gave no consideration to this statute or Adams' testimony.It is interesting to note that the trial court frankly stated it was 'difficult to believe, using his own knowledge of values of lands, that claimant's lands could be worth $50,000.'

In view of all the above we must in good conscience say that there is no substantial evidence to support a finding that appellees' land had, in 1957, a market value of $50,000.We are aware that two qualified witnesses were of the opinion that the land was worth the above figure, but that opinion must be evaluated in relation to the facts (heretofore set out) upon which it is based.SeeCity of Harrison v. Moss, 213 Ark. 721, 212 S.W.2d 334, Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S.W.2d 738.

This court cannot of course, in a situation like this, say there is substantial evidence to justify a certain amount--no more and no less--but we can, as we have frequently done heretofore, fix an amount with the conviction that there is no substantial evidence to support a larger amount.SeeRailway Express Agency, Inc. v. Gee, 197 Ark. 925, 125 S.W.2d 802;Missouri Pacific Railroad Company v. Barham, 198 Ark. 158, 128 S.W.2d 353;Coca Cola Bottling Company of Southeast Arkansas v. Bell, 199 Ark. 386, 134 S.W.2d 549;Fort Smith Couch and Bedding Company v. Rozell, 203 Ark. 35, 155 S.W.2d 707;Jackson v. Ellis, 213 Ark. 826, 212...