Arkansas State Highway Commission v. Lewis, 75--139

• Decision Date: 10 November 1975
• Docket Number: No. 75--139,75--139
• Citation: Arkansas State Highway Commission v. Lewis, 529 S.W.2d 142, 258 Ark. 836 (Ark. 1975)
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Bessie C. LEWIS, Appellee.
• Court: Arkansas Supreme Court

Page 142

529 S.W.2d 142

258 Ark. 836

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Bessie C. LEWIS, Appellee.

No. 75--139.

Supreme Court of Arkansas.

Nov. 10, 1975.

Thomas B. Keys and Kenneth R. Brock, Little Rock, for appellant.

Lester & Shults by Edward Lester, Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

When this condemnation action was filed in 1971 the appellee owned a 14.51-acre tract at the intersection of West Markham Street and Shackleford Road, in Little Rock. The highway department is taking all except 5.45 acres of that tract. The taking is partly for a controlled-access highway and partly for city streets, the landowner having a right of access to the latter. The jury fixed the landowner's compensation at $88,000. Several points for reversal are argued.

The highway department, in filing the complaint and declaration of taking, as amended, incorporated by reference the plans pursuant to which the highway improvement is to be constructed. See Ark. State Highway Commn. v. Wilmans, 239 Ark. 281, 388 S.W.2d 916 (1965). At the beginning of the trial counsel for the condemnor conceded that the highway department was bound by the plans and then went on to say: 'We will build the highway in accordance with the plans, and any judgment entered in this case can certainly specify in the event those plans were changed with respect to the control of access to this property, that this would constitute a new taking for which the landowner would be entitled to damages.'

Despite that assurance on the part of counsel the court gave the landowner's requested instruction number two. That instruction told the jury that the department was acquiring the property for 'highway purposes,' which were then defined as including the eleven purposes enumerated in Ark.Stat. Ann. § 76--532 (Repl.1957), all of which were then read to the jury. The enumeration included such patently extraneous purposes as rock quarries, gravel pits, borrow pits, shops, storage yards, drainage, stock trails, cattle passes, the elimination of grade crossings, and other matters not pertinent to the particular improvement to be constructed in this instance. We have recognized that the highway department, in taking the fee simple, has the power to devote the property to various purposes listed in the statute. Ark. State Highway Commn. v. Wallace, 247 Ark. 157, 444 S.W.2d 685 (1969). It does not follow, however, that the jury should be presented with an exaggerated and misleading conception of the actual...