Arkansas State Highway Commission v. Wilmans, 5-3483

• Decision Date: 12 April 1965
• Docket Number: No. 5-3483,5-3483
• Citation: Arkansas State Highway Commission v. Wilmans, 388 S.W.2d 916, 239 Ark. 281 (Ark. 1965)
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Charles H. WILMANS et al., Appellees.
• Court: Arkansas Supreme Court

Page 916

388 S.W.2d 916

239 Ark. 281

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Charles H. WILMANS et al., Appellees.

No. 5-3483.

Supreme Court of Arkansas.

April 12, 1965.

Mark E. Woolsey and Thomas B. Keys, Little Rock, for appellant.

Wayne Boyce and Fred M. Pickens, Jr., Newport, for appellee.

GEORGE ROSE SMITH, Justice.

This condemnation proceeding arises from a reconstruction project by which part of U. S. Highway 67 has been widened. The landowner, Charles H. Wilmans, formerly operated a liquor store and beer tavern upon a triangular tract of about seven tenths of an acre, abutting the highway. The effect of the taking is to narrow the tract to such an extent that the tavern can no longer be maintained and the liquor store has an inadequate parking area for its customers. The jury awarded Wilmans compensation of $20,000.

According to the original plans for the project a concrete curbing or island, ten inches high, was to be built as a traffic control along nearly all of Wilmans' 100 feet of frontage of the highway. If the plans had been followed this curbing would have greatly impaired the facility with which Wilmans' customers could enter and leave his property. In fact, however, the plans were not followed; the curbing was not built. The appellant insists that the trial court erred in excluding proof that the plans had been changed and in permitting the landowner's witnesses to take the proposed curbing into account in estimating Wilmans' damage.

We think the appellee is right in contending that the Commission's proof fell short of showing such a change in the plans as would bind the Commission in the future. The Commission's complaint asserted in substance that the highway would be rebuilt in accordance with 'plans * * * on file at the Arkansas State Highway Department in Little Rock.' By stipulation the original plans, showing the curbing, were introduced in evidence.

In its effort to prove a change in the plans the Commission called as a witness its resident engineer on the job, Ralph Wyatt. Objections to most of Wyatt's testimony were sustained. There was no clear-cut offer of what his proof would have been, but apparently he intended to testify that the proposed curbing was abandoned pursuant to an oral agreement that was reached in a discussion he had with the opposing attorneys in the case. He also said that he had prepared a sketch showing the agreed change. This sketch is not in the record, however, nor is it shown to have been of binding force as an official document. The Commission also called Wilmans' attorney as its own witness, but he testified that the sketch did not correctly reflect the agreement and, further, that the highway department had violated its agreement.

It will be remembered that the Commission's Complaint affirmatively asserted that the project would follow plans that were a matter of public record in Little Rock. Unquestionably this allegation was meant to fix the rights of...