City of Fort Smith v. DeLaet
| Decision Date | 06 February 1967 |
| Docket Number | No. 5--4055,5--4055 |
| Citation | 241 Ark. 920,411 S.W.2d 520 |
| Parties | CITY OF FORT SMITH, Appellant, v. Warren H. DeLAET et al., Appellees. |
| Court | Arkansas Supreme Court |
Shaw, Jones & Shaw, Ft. Smith, for appellant.
Harold C. Rains, Jr., Floyd G. Rogers, Theron Agee, Van Buren, and Warren O. Kimbrough, Fort Smith, for appellees.
This is an eminent domain proceedings filed by the City of Fort Smith to procure an easement and right-of-way fifty feet wide over a 137 acre farm owned by Warren DeLaet and wife and a 676 acre farm owned by Logan L. France and his wife. The easement was sought to lay a thirty six inch water line to be used in transmitting water from lakes in Crawford County to the City. The line was located in accord with the plat attached, as an exhibit, to the City's petition.
A jury trial, based on the pleadings and the testimony, resulted in a judgment in favor of the DeLaets for $3500 and in favor of the Frances for $5000.
On appeal appellant relies on two points: One, the trial court erred in failing to direct a verdict in favor of appellant at the close of all the testimony, and; Two, the verdicts are excessive.
One. There is no merit in this point. The sole contention of appellant here appears to be that it had already paid into court sufficient funds to reimburse appellees. When suit was filed appellant deposited the sum of $84.00 to compensate the DeLaets and $25.00 to compensate the Frances. As will appear hereafter, we are of the opinion that appellees are entitled to damages in excess of the deposits above mentioned. No other reason is advanced by appellant to sustain its contention under this point.
Two. After careful consideration of the entire record we are convinced that the judgments in favor of appellees are excessive, not being supported by substantial evidence.
(a) The testimony relative to damages to the DeLaet land is, in substance, as follows:
DeLaet owns 137 acres of good bottom land; has owned it five years; he considers it was worth $25,000 before the taking and $20,000 after the taking. Mr. Kimes, an expert witness, has been a real estate dealer for several years; he knows the land and knows where the pipe line runs. The testimony shows appellant has erected or will erect a concrete box on the right-of-way. Kimes thinks the land was worth.$23,500 before and $20,000 after the taking. Mr. Bivens lives one-half mile away--knows the land and knows where the line runs. In his opinion the land was worth $25,000 or $26,000 before and $20,000 or $21,000 after the taking. He is not a real estate salesman or an expert. Mr. Standford, an expert witness for appellant thought the land taken was worth $108.
(b) Mr. France owns 676 acres of land, well improved, and knows the value of land in that vicinity. In this opinion the land was worth $100,000 before the taking and $60,000 after the taking. Mr. Craig, who deals in real estate and knows this land and the value of lands in that vicinity, and is familiar with the location of the line, thought the land was worth $76,500 before the taking and $60,000 after the taking. Mr. Stanford thought the land actually taken was worth $40.50, and that the rest of the land was not damaged.
Thus it appears that appellant's own witness considers the lands taken to be worth more than the amounts deposited in court.
The record discloses the following facts with reference to the two farms. DeLaet: The pipe line runs 84 rods across his land and the right-of-way covers 1.12 acres. France: The line runs 25 rods across his land and the right-of-way covers .36 of an acre.
It would serve no useful purpose to detail the somewhat lengthy testimony given by appellees and their witnesses. It suffices to say we do not find, in the testimony, any substantial evidence to support the amounts fixed by the jury. None of the witnesses made any explanation, other than heretofore set out, of the conclusions reached. No witness attempted to give any reason why the right-of-way adversely affected the value or use of the farms for which they were best suited.
In the case of Arkansas State Highway Commission v. Byars, 221 Ark. 845 (p. 851), 256 S.W.2d 738 (p. 741), we approved this language:
'Juries are not permitted to base their verdicts on speculation and conjecture, and as to whether there is any substantial evidence to support the verdict is a question of law and not of fact.'
In the above case, at page 849 of the Ark. Reports, 256 S.W.2d at page 740, we also said:
'Where a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based.'
In the case of Arkansas State Highway Comm. v. Ptak, 236 Ark. 105 (p. 107), 364 S.W.2d 794 (p. 796), there appears this statement:
'But the fact that Mr. Powell gave the property a before (the taking) and after (the taking) value does not, within itself, raise the testimony to that degree known as substantial evidence.'
Considering the testimony in this case in connection with the rules above announced, we cannot in good conscience, say the jury verdicts are supported by substantial evidence.
Reversed and remanded.
Certainly the verdicts in these cases seem extremely liberal, but I do not believe that we are justified in reversing the judgments on the lack of substantial evidence to support the verdicts on the record before us. As an appellate court, we are concerned only with errors of a trial court as a basis for reversal. This is a question never properly raised in the trial court, so it has not properly reached us.
There were two witnesses in addition to the owner who testified about values of the DeLaet lands and four, in addition to owner France, who testified about values of the latter's property. Our attention is called to only one objection to the testimony of any of the witnesses and that was to the qualifications of the witness George Bivens for appellee DeLaet. Appellant then calls attention to a motion for directed verdict after appellee France had rested, motion having been made previously when appellee DeLaet rested, contending that the landowners had failed to sustain the burden of proof as to the value of the land actually taken, and that there had been no testimony by appellees except as to the before and after value of the land. He next directs our attention to a motion for a directed verdict at the conclusion of all the testimony on the basis of the evidence adduced by both sides.
No motion had been made to strike the testimony of any witness and no motion for a new trial was made. Appellant apparently relies on the motions for a directed verdict as the basis for his appeal. At no time did appellant make known to the trial court his objections to the lack of evidence sufficiently substantial to support a verdict,--action made sufficient by Ark.Stat.Ann. § 27--1762 (Repl.1962).
We have long been committed to the rule in Arkansas that a verdict should not be directed when, taking that view of the evidence most favorable to the party against whom the verdict would go, there is any evidence to establish an issue in his favor. Barrentine v. Henry Wrape Co., 120 Ark. 206, 179 S.W. 328. This was called a well-established rule in Yahraus v. Continental Oil Co., 218 Ark. 872, 239 S.W.2d 594. See, also, Great Southern Mutual Life Ins. Co. v. Smith, 177 Ark. 1194, 291 S.W. 441.
Sometimes the rule is stated conversely, i.e., a verdict should be directed against a party only when there is no evidence tending to establish an issue in his favor, when viewed in the light most favorable to him, as in Pugh v. Camp, 213 Ark. 282, 210 S.W.2d 120, where the decision turned on the point that a jury issue exists whenever the only evidence on that issue is the testimony of a party, and the issue is made only because the testimony of a party cannot be taken as undisputed.
I am not unaware of the statement in Hawkins v. Missouri Pacific R. Co., 217 Ark. 42, 228 S.W.2d 642, that a trial judge may grant a motion for directed verdict 'only if the evidence * * * would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.' The court, however, reversed the action of the trial court in directing a verdict, so the decision did not change the rule from 'any evidence'. This is further illustrated by the fact that none of the authorities cited for the statement require that the trial court direct a verdict in the absence of 'substantial' evidence. One of these, St. Louis Southwestern R. Co. v. Britton, 107 Ark. 158, 154 S.W. 215, says quite the contrary. Another, Missouri Pacific Railroad Co. v. McKamey, 205 Ark. 907, 171 S.W.2d 932, is only authority for the proposition that a motion for a directed verdict is properly denied when there is substantial evidence which would support a contrary verdict. In the other, Ozan Lumber Co. v. Tidwell, 210 Ark. 942, 198 S.W.2d 182, it is only stated that the question at issue should go to the jury whenever fair-minded men might honestly differ as to the conclusions to be drawn from the facts. While the Hawkins case was cited as authority in Harper v. Missouri Pacific R. Co., 229 Ark. 348, 314 S.W.2d 696, the court affirmed because there was no evidence to show certain requisite facts. The Hawkins case is also cited as authority in Wood v. Combs, 237 Ark. 738, 375 S.W.2d 800, but only for the proposition that a question is made for the jury when reasonable men might differ as to which party was guilty of the greater degree of negligence. This opinion is also cited by its author in another case, Penny v. Gulf Refining Co., 217 Ark. 805, 233 S.W.2d 372, but he stated that the court could not say that the statements relied upon by appellants there to make a fact issue constituted any evidence to support his theory. I have not found...
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