Arkansas State Highway Commission v. Wallace

• Decision Date: 22 September 1969
• Docket Number: No. 5--4964,5--4964
• Citation: Arkansas State Highway Commission v. Wallace, 444 S.W.2d 685, 247 Ark. 157 (Ark. 1969)
• Parties: ARKANSAS STATE HIGHWAY COMM'N, Appellant, v. Alma Summers WALLACE, Appellee.
• Court: Arkansas Supreme Court

Page 685

444 S.W.2d 685

247 Ark. 157

ARKANSAS STATE HIGHWAY COMM'N, Appellant, v. Alma Summers WALLACE, Appellee.

No. 5--4964.

Supreme Court of Arkansas.

Sept. 22, 1969.

Thomas B. Keys, and Hubert Graves, Little Rock, for appellant.

Gordon, Gordon & Eddy, Morrilton, for appellee.

BROWN, Justice.

Appellant Arkansas State Highway Commission instituted this action in eminent domain to acquire from Alma S. Wallace, appellee, 2.55 acres needed for the relocation of State Highway No. 9. The jury fixed the landowner's damages at $18,000. On direct appeal the Commission argues error in the admission of certain value testimony and in an admonition to the jury which is attacked as being a comment on the evidence. The landowner cross-appeals, alleging error in the giving and refusing of certain instructions and in allowing the Commission to proceed on the assumption that the taking did not impair ingress and egress.

Mrs. Wallace's 143-acre tract, part of which is located in the city limits of Morrilton, was used before the taking as her home and for a dairy operation conducted by her husband. The land had a narrow frontage (some 300 feet) along Highway 9 before the relocation and then ran eastward a distance of slightly more than three-quarters of a mile. The relocation moved the highway eastwardly which resulted in a severance of the westerly ten acres from the remainder of the tract.

The first point for reversal on direct appeal concerns the value testimony of Mrs. Wallace. In her estimate of values she considered the immediate use as a home and dairy operation; then she envisioned, in the foreseeable future, the utilization of the land for urban development, the latter being considered the highest and best use. On direct examination Mrs. Wallace described generally the land and improvements, the dairy operation, future adaptability to homesites, and estimated the value before the taking to be $120,000. She then testified that the severance had substantially impaired the land for development into lots and explained the reasons for that conclusion. She also asserted that a dairy operation was no longer feasible. She was then asked the value of the property after the taking and she replied, 'I guess $85,000.' Her computations were not based on allocation of values, rather they were her conclusions of overall estimates.

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 ot lands and improvements. City of El Dorado v. Scruggs, 113 Ark. 239, 168 S.W. 846 (1914).

It is highly significant that Mrs. Wallace did not allocate a specific figure to business loss. It was therefore impossible for the jury to know the amount of damages included for that item. They might have speculated the figure to be $8,600 because her estimate was that much higher than her expert witness, Pearce; but of course we do not propose to encourage speculation. Specifically, we hold that when a witness testifies to a total just compensation figure and it is shown that an impermissible element of valuation has been incorporated in that figure, the value testimony so affected cannot stand unless the improper amount can be distinguished. Of course the witness should be afforded an opportunity to specify the amount improperly included when that fact is revealed.

In its second point for reversal the Commission contends that appellee's appraisers erroneously considered the taking would make it possible for the highway department to restrict the landowner's ingress and egress to and from the highway. We find the contention to be without merit. The subject matter will later be discussed in our treatment of the landowner's cross-appeal. The Commission's third point concerns an admonition given the jury with reference to Mrs. Wallace's value testimony. In view of our holding on the first point that problem is not likely to arise on retrial.

The first three points on cross-appeal are concerned with the effect of a taking in fee simple upon the landowner's right of ingress and egress on and across the relocated highway which divides her property. The Commission contends that it condemned the lands 'pursuant to a statute under which it does not have the power to regulate and control the access of abutting landowners.' Mrs. Wallace argues that the taking, being in fee simple, subjects her right to cross the highway at all points along the new frontage strip to the control of the Commission. She does not insist that she would be completely blocked, as in the case of a controlled access facility, but she strongly argues that the taking in fee simple gives to the Commission the power to control access in such manner as would serve the best interests of the paramount use of the lands taken.

The complaint was filed 'pursuant to the authority and...