Arkansas State Highway Commission v. Bowman

• Court: Arkansas Supreme Court
• Writing for the Court: JOHNSON; WARD
• Citation: Arkansas State Highway Commission v. Bowman, 371 S.W.2d 138, 237 Ark. 51 (Ark. 1963)
• Decision Date: 14 October 1963
• Docket Number: No. 5-3029,5-3029
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Tyrus BOWMAN et al., Appellees.

Page 138

371 S.W.2d 138

237 Ark. 51

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Tyrus BOWMAN et al., Appellees.

No. 5-3029.

Supreme Court of Arkansas.

Oct. 14, 1963.

Dowell Anders, H. Clay Robinson and Don Langston, Little Rock, for appellant.

Donald Poe, Waldron, for appellees.

JOHNSON, Justice.

This appeal arises from eminent domain proceedings in Scott County to condemn land for highway purposes along Highway 270 near Wye City. On July 21, 1961, appellant Arkansas State Highway Commission filed a complaint and declaration of taking and deposited the sum of $400.00 for Tract 42 belonging to appellees Tyrus and Deen Bowman, $1,250.00 for Tract 44 (appellees W. G. and Nova Sullivan), $350.00 for Tract 46 (appellees Garrett and Edna Shaddon), and $450.00 for Tract 47 (appellee R. D. Rose). The Scott Circuit Court entered an order giving appellant possession of the property as of July 21, 1961. On May 11, 1962, at pre-trial conference the court combined the above tracts for trial. Trial was held on June 13, 1962. After deliberation, the jury found that just compensation for Tract 42 was $2500.00, for Tract 44 was $3,000.00, for Tract 46 was $1750.00, and for Tract 47 was $1300.00. From judgments on the verdicts, appellant has appealed.

This is a companion case to Arkansas State Highway Commission v. Carpenter et al., Ark., 371 S.W.2d 535. These cases were tried and appealed in the same week, they involved the same highway, same attorneys and many of the same witnesses. The points relied upon for reversal are substantially the same, as are the briefs. The records, of course, are not identical, and we must therefore determine this case on its own merits.

Appellant contends that the trial court committed reversible error in overruling the Highway Commission's motion to strike the testimony of the landowner's value witness, Donald Roderick, because the witness did not determine the just compensation due for the property on a before and after basis.

The witness testified on direct examination as to his opinion of just compensation for the partial taking of appellees' property on a before and after basis. However, on cross-examination appellant's attorney elicited the following testimony from the witness:

'Q. Now, Don, let me ask you this: You placed a value of $17,500 on the property before the taking. You have enumerated these elements of damage and have subtracted them from the $17,500 to get your after figure, is that correct?

'A. Well, I have taken various things into consideration in doing that.

'Q. But is that essentially what you have done?

'A. No sir.

'Q. How have you arrived at this figure then?

'A. The element of damage, you mean?

'Q. The after figure, what the property is worth after the taking?

'A. I have had to estimate in various ways--I don't know some of the things.

'Q. Now you have enumerated these items that you've given me here. Have you subtracted those items from the before figure to get your after figure?

'A. Yes sir.'

This testimony, standing alone, without considering it together with all of the witness' testimony, does appear to be somewhat contradictory. However, in order to avoid any confusion, the trial court immediately gave the following admonition to the jury:

'Now, Ladies and Gentlemen, in so far as any of these items like replacement of fence--these various specific items of damage which Mr. Roderick has enumerated, you understand, as I told you in the beginning, they in themselves--not any one of them or the sum total constitutes the measure of the just compensation to be arrived at in this case and they are only admitted to you as an aid in determining what the difference before and after would be and you are not to consider them at all unless you find that they are reasonable and where applicable are necessary and are to be considered under all the circumstances in the case. Now I want to caution you to base your verdict solely upon what you find the difference to be between the value--the market value of the land before the taking and the market value after the taking.'

Appellant forcefully contends that the witness' testimony indicates that he determined the before value, estimated the damage to the property and subtracted that figure from the before value to arrive at his after value. Appellant's contention is...