Arkansas State Highway Commission v. Darling

• Decision Date: 06 November 1967
• Docket Number: No. 5--4303,5--4303
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Katheryn Childress DARLING et al., Appellees.
• Court: Arkansas Supreme Court

Page 94

420 S.W.2d 94

243 Ark. 386

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Katheryn Childress DARLING et al., Appellees.

No. 5--4303.

Supreme Court of Arkansas.

Nov. 6, 1967.

John R. Thompson and Joe T. Gunter, Little Rock, for appellant.

John D. Eldridge and John W. Haralson, Augusta For appellees.

WARD, Justice.

This is a condemnation suit brought by the Arkansas State Highway Commission to procure three parcels of land to be used in the construction of U.S. Highway No. 64. Each parcel was a part of a larger acreage--each parcel owned by one or more of the heirs of E. F. Childress and wife, who are deceased.

The parcels of land mentioned in the complaint will, for clarity, be designated as follows:

Parcel (1.) 6.87 acres owned by Katherine Childress Darling and T. R. Childress, for which there was a deposit of $1700 for compensation.

Parcel (2.) 5.38 acres owned by T. R. Childress, et al, with a deposit of $1500.

Parcel (3.) 0.76 acres owned by T. R. Childress and wife, with a deposit of $5,520.

In answer, appellees alleged the deposits were insufficient compensation for the lands taken and the damages done to the remainder of the lands, and accordingly prayed for judgment.

The trial resulted in a judgment against appellant (Commission) as follows: Parcel (1) $2,850; Parcel (2) $3,050, and, Parcel (3) $10,167.

On appeal appellant relies, for a reversal, on three separate points which we now examine.

One.

'The trial court erred in overruling appellant's motion to strike the value testimony of appellee, T. R. Childress, because he failed to state the market value of the whole tract before the taking and the market value of the remainder after the taking.'

We are unable to agree with appellant's contention. According to appellant's own abstract of Childress' testimony he stated:

'My house is 32 67, 2080 square feet of livable area, three bedrooms and two bathrooms. At $12.50 a square foot the house would be worth $26,000.00 and my 480 square feet of carport at $5.00 a square foot would be $2,400.00 and I had to put in a water pump extra. The relocation of the highway has diminished the fair market value at least fifty percent, or $14,350.00'.

On cross-examination Childress again testified to the same effect. This Court has many times approved this kind of testimony. For a recent case see Young et al. v. Ark. State Highway Commission, 242 Ark. 812, 415 S.W.2d 575.

We have also many times held that the owner of property has the right to give his opinion as to the value of same.

Two.

'The trial court erred in overruling appellant's motion to strike the value testimony of C. J. Peacock because he failed to state the market value of the whole tract before the taking and the market value of the remainder after the taking.'

In our opinion the trial court was correct in refusing to strike the testimony of this witness. In essence, he testified: I have been actively engaged in farming for about tne years; I have bought and sold land in the vicinity of the lands here considered, and I am familiar with the fair market value of land of a similar type and character It is apparent from the above abstract of Peacock's testimony that it does not conform strictly with the before and after formula, but we think it reaches the same result. In effect it says that the property was valued at not less than $15,500 before the taking and $11,500 after the highway was built, i.e., after the taking. The witness was cross-examined by appellant and if he didn't mean what we say he meant, then this fact could have been, but was not, revealed. We agree that some of Peacock's testimony was not entirely clear, but no objection was made on that ground. If part of his testimony was competent and we so find then a motion to strike all his testimony was properly denied. Ark. State Highway Comm. v. Carpenter, 237 Ark. 46, 371 S.W.2d 535 and Ark. State Highway Comm. v. Bowman, 237 Ark. 51, 371 S.W.2d 138.

I consider the fair market value of the house as about $12,000 and the shed at about $3,500, and I would value the house and ground after the highway was built as about $4,000 less.

Three.

'The trial court erred in overruling appellant's motion to strike damages to the property assessed by C. V. Barnes for valuation based on trees and drainage impairment and attributed as severance damage, inasmuch as no special damages were set out in the pleading of the appellee'.

Again we are unable to agree with appellant's contention. The testimony given by Barnes was comprehensive and in detail--covering ten pages in appellant's abstract--and we deem it sufficient to make only brief references to it. He is a real estate expert, having engaged in making real estate appraisals for twenty years. He not only gave his opinion as to the before and after value of the property but explained and reasons therefore. He pointed out, as result of the taking, certain damages, such as, drainage, damage to fences, houses, yard, cost of removing houses, removal of trees, etc.

Appellant moved to strike this kind of testimony on the ground that no such damages were pleaded. The trial court overruled the motion over objections. We agree with the trial court.

In appellant's abstract of appellees' answer it is stated that the court deposits were 'insufficient for the property taken and the damages done to the remainder of the lands * * *.' In appellees' Answer and Cross-Complaint (Tr. p. 16) it is alleged they '* * * should recover the sum of $2500 for the value of the land and $3,000 for damages to the remainder of the tract' (referring to one parcel). The same allegations were made with reference to another tract.

Affirmed.

BROWN and FOGLEMAN, JJ., concur.

CONCURRING OPINION

FOGLEMAN, Justice.

I concur in the majority's result, but I reach it by approaches which would not result, even unintentionally, in erosive action on our 'before and after' rule for testimony directed to the measure of compensation. I agree, however, that when a witness has shown sufficient knowledge to convince the trial judge that his opinion may be of value, he may state his opinion of the damages in a case such as this, when it is obvious that the opinion is based on the proper measure--i.e., the difference between the value of the land before the taking and after. St. Louis I.M. & S. Ry. Co. v. Brooksher, 86 Ark. 91, 109 S.W. 1169. This is not exactly what is involved in this case, in my opinion.

In addition to the testimony set out in the majority opinion, the landowner-witness did testify on cross-examination, after the motion to strike, that he valued his house at $28,700.00 before the taking and $14,350.00 after the taking. Even if it be urged that all his testimony as to values should have been stricken before this examination, certainly this testimony supplied any alleged deficiency so that his entire testimony as to values could not be stricken. Witness Childress not only testified as to the diminution of the value of his residence by reason of the taking, but he also testified as to 'per acre' values of certain of the lands actually taken.

There is ample precedent in partial taking cases to permit a witness to testify about the value of things situated on the land taken and about other factors relating to the relative desirability of the remaining lands. This testimony is admissible, not as the measure of damages, but in order to show damage and to explain the...