Arkansas State Highway Commission v. Dupree, 5-1516

• Decision Date: 07 April 1958
• Docket Number: No. 5-1516,5-1516
• Citation: 311 S.W.2d 791,228 Ark. 1032
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. P. W. DUPREE, Sr., et al., Appellees.
• Court: Arkansas Supreme Court

Page 791

311 S.W.2d 791

228 Ark. 1032

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. P. W. DUPREE, Sr., et al., Appellees.

No. 5-1516.

Supreme Court of Arkansas.

April 7, 1958.

Mehaffy, Smith & Williams, by John Williams, W. R. Thrasher, Dowell Anders, Edward Boyett, and Bill B. Demmer, North Little Rock, for appellant.

Catlett & Henderson, Little Rock, for appellees.

ROBINSON, Justice.

This action was filed by the Arkansas State Highway Commission to condemn for highway purposes certain lands situated in Pulaski County. A fraction over 59 acres were taken from the appellees. The appellees filed an answer alleging that the 59 acres were part of a 3,000-acre tract; that the value of the land taken was $24,000; and that they had suffered damages in the sum of $50,000 by reason of a severance of the property. Later an amended answer was filed in which damages of $200,000 were alleged. There was a jury verdict in the sum of $100,000. On appeal the Highway Commission contends that the verdict is excessive.

Appellees own a little over 3,000 acres across which the highway is to be constructed. A strip consisting of about 59 acres has been taken, leaving about 2,000 acres which will be on the west side of the highway and 1,000 acres on the east side. The highest valuation placed on the property taken is $200 per acre, which would make a total of about $12,000 as the highest value placed on the land taken. In addition, it would be necessary for the property owners to fence each side of the new highway, the highest estimate of the cost of such fencing being $5,400, which, added to the $12,000 for the land taken, would total about $17,400. This portion of the verdict is sustained by substantial evidence. The question is whether there is substantial evidence to sustain the balance of the verdict amounting to about $83,000, which the jury must have given as damages due to a severance of the property.

The property is located northeast of North Little Rock, the south line of the property being about six miles from the city limits. Appellees acquired the land in 1928 and have farmed it since that time, but the earnings of the place are shown only for the years 1954, 1955 and 1956: $13,019.76 for 1954; $11,585.88 for 1955; and $12,650.83 for 1956. One of the appellees, Mr. C. S. Dupree, gives practically all of his time to the operation of the place, and two of his brothers give a portion of their time, but in arriving at the net amount earned by the farm, nothing was allowed for the work done by the owners.

The owners contend that the market value of the property has been depreciated to the full extent or in excess of the amount of damages allowed by the jury because of the severance. Several witnesses gave testimony to the effect that in their opinion the damages caused by the severance exceed the amount awarded by the jury. If such evidence is substantial, the judgment must be affirmed. The witnesses on behalf of the landowners estimate the damages at from $87,000 to $161,000, and witnesses on behalf of the Highway Commission give estimates of damage from a low of $8,200 to a high of $12,200. The assessed valuation of the entire 3,000 acres for 1956 is $21,815. Whether there is substantial evidence to support the verdict is a question of law. Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S.W.2d 738; Missouri Pacific Transportation Co. v. Bell, 197 Ark. 250, 122 S.W.2d 958.

On the west side of the strip taken for the new highway is a cattle barn and corrals. This is on the tract which would contain about 2,000 acres. There are no similar facilities on the east side. The barn is 100' X 100' and is used for storing seed and also feed for the cattle. Part of the feed is stored in temporary silos made of wire and paper. This method has been found to be more economical. There are four tractors on the place and four hired men. Feed for the cattle is moved in trailers attached to the tractors. There are five stock ponds and one borrow pit where the stock can drink. Two of these are on the east side of the new right of way. There are 1,200 acres of crop land, 1,000 acres in pasture and open timber, and 860 in timber. The number of acres in particular crops and the production given for one of the years are as follows: 203 acres in cotton (100 bales produced); 238 acres in hay; 30 acres in beans; 60 acres in corn; 120 acres in silage. Mr. C. S. Dupree, one of the owners, values the place at $150 per acre straight across, for a total of $450,000. But he says that after the severance the property will be worth only $100 per acre, thereby giving $150,000 as his estimate of the damages due to the severance. It also appears that there will be a strip of land between a drainage ditch and the new road on which at the north end it will be difficult to operate four-row farm equipment. Mr. Dupree also says it will be difficult to cultivate any closer than about 20 feet from the highway fence, and this will cause some loss. He further contends that labor, equipment and livestock cannot be moved across the new highway and therefore the place cannot be worked as one unit. He further states that to move farming equipment across the highway it would be necessary to purchase insurance which would cost about $100 per month. According to undisputed evidence the Highway Commission will provide a grade crossing.

Mr. W. C. Wilkinson, of Summerville, Tennessee, is in the mortgage loan business. He testified that the value of the property before the taking was $308,770 and after the taking the value was reduced to $220,000, the damages amounting to $88,770. He testified in detail as to how he arrived at the valuation before the taking, but he gives no clue as to how he arrived at the amount of damages mentioned.

Mr. Floyd Fulkerson, who farms in Pulaski County, testified that appellees' property is better suited for a large cattle operation than any other purpose and that it would support 800 or 900 head of cattle. He gave an over-all value of $150 per acre before the taking, and stated that the damages would amount to about 25%; that the damages due to the severance would amount to approximately $129,000. Mr. Fulkerson gives no substantial testimony as to why the severance would reduce the property in value by 25% when used as a large cattle operation. It is shown by the evidence that the owners now have 289 head of cattle on the property, but there is not a scintilla of evidence that they have ever made any money whatever out of cattle. Of course, it was to the interest of the owners to show the full earning capacity of the place, and...