Arkansas State Highway Commission v. Watkins

• Decision Date: 12 May 1958
• Docket Number: No. 5-1556,5-1556
• Citation: Arkansas State Highway Commission v. Watkins, 313 S.W.2d 86, 229 Ark. 27 (Ark. 1958)
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Fred D. WATKINS and Katherine W. Watkins, His Wife, and John P. Matthews and Martha D. Matthews, His Wife, Appellees.
• Court: Arkansas Supreme Court

Page 86

313 S.W.2d 86

229 Ark. 27

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Fred D. WATKINS and Katherine W. Watkins, His Wife, and John P. Matthews and Martha D. Matthews, His Wife, Appellees.

No. 5-1556.

Supreme Court of Arkansas.

May 12, 1958.

MeHaffy, Smith & Williams, W. R. Thrasher, Dowell Anders, Little Rock, Bill Demmer, North Little Rock, for appellant.

Wayne W. Owen and H. B. Stubblefield, Little Rock, for appellees.

WARD, Justice.

This is a condemnation proceedings involving 15.51 acres of land belonging to appellees. All testimony relative to the value of the land taken from appellees by the Arkansas Highway Department in this suit was directed to a parcel of land consisting of 28.955 acres. The 15.51 acres mentioned above is arrived at as follows: All four of the appellees own an undivided one-half interest in 26.885 acres, amounting to an entire interest in 13.44 acres, and all four appellees own the entire interest in 2.07 acres, making a total taking of an entire interest in 15.51 acres.

A jury awarded appellees damages in the sum of $45,000. Thus the judgment places a value of slightly more than $2,900 per acre for the land actually taken for highway purposes. It will be noted that in arriving at the acreage value above no allowance is made for severance damage or damage to adjoining property. We think, however, as will be later shown, there is no substantial evidence to sustain very little if any such allowances. Moreover we are unable to see how the jury could have fairly included in its total verdict such allowances since it appears that all the adjoining land is owned by only part of the appellees.

On appeal appellant urges two points for our consideration. One: It was reversible error for the court to permit the introduction of Exhibit 5 which is a plat showing the subject land and adjacent land divided into lots, blocks, and streets, and also in permitting the introduction of testimony relative thereto. Two: The verdict is excessive in that it is not supported by substantial evidence. Before discussing these points a summary of the essential background facts should be helpful to a better understanding of that discussion.

The subject land is located approximately four air-miles in a northeasterly direction from the Main Street bridge in Little Rock, and is to be used by the Highway Department in the construction of a new super-highway from Little Rock via Jacksonville. It is approximately four-fifths of a mile long [running generally north and south] and is 300 feet wide except that it is wider near the middle. The wider portion will be utilized for an over-pass and access roads on both sides of the highway. Approximately half [the south half] of the strip coincides with or includes a portion of the present highway No. 67. The land adjacent to and surrounding the subject strip is not in cultivation but is covered with small oak trees, and the strip is approximately one mile from the Lakewood Addition to North Little Rock.

One: The evidence shows that the best and most valuable use that could be made of the subject land and the adjacent land is for residential purposes. It is not disputed that appellees had the right to introduce competent testimony to establish and explain the suitability of the land for that purpose. In attempting to do that, appellees exhibited a Plat [shown as Exhibit 5] to the jury which showed the subject land and the adjacent land to be laid off in lots, blocks, and proposed streets. According to this exhibit there were approximately 70 lots on the subject strip, with approximately 140 lots on the east side, and approximately 190 lots on the west side thereof. After the Plat had been handed to the reporter and marked for identification only, the following occurred:

Questions by Mr. Stubblefield:

'Q. Just hold that, if you will, so the jury can see your explanation, and tell the jury what that is. A. This is a map prepared by me showing the land being condemned in the different colors due to identification and by parcel numbers, the red lines show the existing highway and showing where the project starts through the land owned by Mr. Matthews. This is shown over a layout of streets and roads which is the normal way that we arrive at land cost and values of land.'

The Plat was offered in evidence over the objections of appellant and when the witness admitted the area had not 'been platted as indicated by the map,' the court sustained the objection. It is not clear to us however, whether the Plat was later considered in evidence. As stated before, the Plat is a part of the record here, marked Exhibit 5, without further explanation, and it was shown to the jury. In any event, we think the effect of the court's ruling, in sustaining appellant's objection, was erased by what occurred thereafter. On re-direct examination of the witness [Arthur H. Thomas] he was asked to explain to the jury in a little more detail about the number of lots the land was going to be divided into, when appellant again objected. The Court stated: 'He may testify as to how he arrived at it without reference to the exhibit.' Witness was then asked: 'Q. You arrived at the figure by figuring out how many lots?'. Again appellant objected, but was overruled. Exceptions were saved by appellant. Witness then stated:

'A. There is one tract of this land that lies adjacent and along an existing paved road which can be used for development; where the road is already dedicated, you can get four lots of the type and size that is being developed in Lakewood per acre and I put a per front foot on that property of $25.00 per foot which is about $2,000 per lot. I think that is a very conservative figure since we are getting $3,500 per lot in Lakewood. On the land being condemned, not fronting on existing pavement, I used three and a half lots per acre and a figure of $1,600 per lot for those eighty-foot wide lots and arrived at this figure that way.

'Q. And that in your opinion was the value per acre on March 12, 1957? A. I think that is a very conservative figure because we are getting much more than that in Lakewood right now.'

Previously the witness had stated that lots in Lakewood sold for $6,000 to $12,000 apiece. Finally the witness stated that in his opinion the land in question was worth $6,000 per acre.

There can be little doubt that the above testimony and other testimony of a similar nature might have influenced the jury in fixing a value on the subject land. Such testimony allowed the jury to compare the value of the subject lots in Lakewood Addition without any knowledge of numerous factors that would have to be considered in order to make the comparison fair and equitable. It necessarily follows then that the jury's verdict would be based on conjecture and speculation. Our research of the numerous authorities dealing with testimony of this nature indicates it is universally condemned. The general rule is well stated in Nichols, Eminent Domain, Third Edition, Chapter 12, Sec. 3142(1) in the following language:

'It is well settled that if land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush or boulders. The measure of compensation is not (emphasis supplied) however, the aggregate of the prices of the lots into which the tract could best be divided, since the expense of cleaning off and improving the land, laying out streets, dividing it into lots, advertising and selling the same, and holding it and paying taxes and interest until all the lots are disposed of cannot be ignored and it is too uncertain and conjectural to be computed. The measure of compensation is the market value of the land as a whole, taking into consideration its value for building purposes if that is its most available use.'

In United States v. 620.00 Acres of Land, etc., D.C., 101 F.Supp. 686, which concerned the condemnation of land in Marion County, Arkansas, the Court, at page 690, approved this statement:

'To warrant the admission of testimony as to value for purposes other than that for which it is actually used, however, regard must be had for existing conditions and wants of the community, or such as may reasonably be expected in the immediate future. The uses considered in fixing value must be so reasonably probable as to have an effect upon the present market value of the land and a speculative value cannot be considered.'

In the case of Carolina Power and Light Company v. Clark, 243 N.C. 577, 91 S.E.2d 569, 570, the court, in dealing with fixing the value of property based on its best adaptable usage, said that consideration must be given to existing business 'or wants of...