Brady v. City of Springdale

• Decision Date: 26 May 1969
• Docket Number: No. 5--4906,5--4906
• Citation: 441 S.W.2d 81,246 Ark. 1103
• Parties: H. T. BRADY, Appellant, v. The CITY OF SPRINGDALE, Arkansas, a Municipal Corporation, Appellee.
• Court: Arkansas Supreme Court

Page 81

441 S.W.2d 81

246 Ark. 1103

H. T. BRADY, Appellant, v. The CITY OF SPRINGDALE, Arkansas, a Municipal Corporation, Appellee.

No. 5--4906.

Supreme Court of Arkansas.

May 26, 1969.

Lewis D. Jones, Fayetteville, for appellant.

Crouch, Blair, Cypert & Waters, Springdale, for appellee.

JONES, Justice.

This is an appeal by the landowner from a judgment of the Washington County Circuit Court denying his motion for a new trial in a condemnation case. The city of Springdale, through eminent domain, condemned a construction easement 50 feet wide and a permanent easement 15 feet wide for a sewer line across ten acres of the appellant's tract of land containing 114 acres. By answer and counterclaim the appellant alleged damages in the amount of $25,000 for the taking of the easement, and $20,000 further damage in diminished value of the remaining land because of water and air pollution and noxious odors arising from a sewage disposal plant adjacent to appellant's property. The appellant also alleged damage in the amount of $5,000 for breach of contract in connection with fencing, paving and preservation of a spring in consideration for the grant of the easement.

A jury trial resulted in a judgment for the appellant landowner in the amount of $750 and upon appeal to this court from a judgment denying a motion for a new trial, the appellant relies on the following points for reversal:

'The court erred in overruling defendant's motion for a new trial for the reason that the verdict was clearly against the proponderance of the evidence.

The jury's verdict as to the damages was clearly inadequate and should be set aside with a new trial ordered.'

Both of the appellant's points were included in his motion for a new trial based upon his contention that the verdict was against the preponderance of the evidence. In the case of Taylor v. Grant Lumber Co., 94 Ark. 566, 127 S.W. 962, this court said:

'Trial courts have a large discretion in the matter of granting new trials, especially upon the weight of the evidence; and this court will not interfere with such discretion, unless it be made to appear that it was improvidently exercised.'

The reason for the rule is stated in Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922, wherein this court said:

'Where there is decided conflict in the evidence, this court will leave the question of determining the preponderance with the trial court, and will not disturb his ruling in either sustaining a motion for new trial or overruling same. * * * The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore his 'judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.''

The only question before us on this appeal is whether the trial court abused his discretion in refusing to grant a new trial, and in answering that question, we do not consider the preponderance of the evidence in any case. Where the motion is denied, we only consider the legal sufficiency of the evidence to support the jury verdict, and if there is any substantial evidence to support the jury verdict, we do not disturb the trial court's action in denying a motion for a new trial. Price-Snapp-Jones Co. v. Brown, 184 Ark. 1143, 45 S.W.2d 517; Chaney v. Missouri Pacific Railroad Co., 167 Ark. 172, 267 S.W. 564; Mueller v. Coffman, 132 Ark. 45, 200 S.W. 136.

So the question here boils down to whether there was any substantial evidence to support the jury verdict. The appellant, Brady, testified that his entire farm consists of 114 acres; that prior to the present taking there was an underground sewer over the same area. Much of Brady's testimony concerned a breach of contract he alleged in his counterclaim. The contract provided for payment of $3,500 for the easement, and for the reseeding of the damaged surface area. It also provided for the removal of rocks and other debris and for the erection of some fence. The appellee also agreed to build and surface a designated access road into appellant's property and to install some tile in a spring on the property. In proof of his damages on the alleged breach of contract, the appellant testified that it would cost $200 to reseed the easement area; that it would cost $200 to remove the rock and debris left by the operation and he estimated the before and after value of his entire farm as a result of the destruction of his spring, the taking of the easement, and the offensive odors emanating from the sewage disposal plant at $100,000 before the taking and $55,000 after the taking.

Dale Killian, a real estate broker, relying on his general knowledge and experience in the sale of real estate, and basing his opinion on the area taken and offensive odors emanating from the sewage disposal plant, estimated the value of the entire tract of land at $70,000 before the construction of the sewer line and disposal plant, and at $50,000 after the facilities were installed. He testified that there was an offensive odor from the sewage disposal plant when he was on the property but that his knowledge as to odor prior to the construction of the plant in 1964, would be hearsay.

Candida Crane...