City of Springdale v. Keicher, 5--4277

Citation243 Ark. 161,419 S.W.2d 800
Decision Date09 October 1967
Docket NumberNo. 5--4277,5--4277
PartiesThe CITY OF SPRINGDALE, Arkansas, Appellant, v. Homer KEICHER and Eunice Keicher, Appellees.
CourtSupreme Court of Arkansas

Crouch, Blair & Cypert, Springdale, for appellant.

Lewis D. Jones and John E. Butt, Fayetteville, for appellees.

WARD, Justice.

This is a condemnation suit brought by the City of Springdale to secure easements for the construction of a sewer line.

On February 2, 1964 the City (appellant) filed a complaint in circuit court against Homer and Eunice Keicher (appellees) to procure a temporary easement (over appellees' land) fifty feet wide and approximately 1,000 feet long to be used while constructing the sewer line. Appellant also sought a permanent easement (over said land) fifteen feet wide and approximately 1600 feet long where the line was to be placed. Appellant deposited $150 in the registry of the court to cover any damages to appellee for the taking, and asked for the right of immediate entry for construction purposes.

On the same day the court entered an Order giving appellant the right of immediate entry. Thereupon appellant began construction operations.

On November 9, 1966 appellees filed an Answer and Counter-Claim. In the Answer appellees stated they owned the land, and that they should recover the sum of $20,000 'for the taking of said lands and the damages caused to the remainder of their lands'. In their cross-complaint appellees sought $10,000 damages caused by odors from a sewage disposal system which appellant had erected and maintained adjacent to their lands during the past three years.

In reply, appellant said any alleged damages asked for in the Counter-Claim was barred by the statute of limitations, and denied all allegations in the answer.

A jury trial on November 28, 1966 resulted in a verdict in favor of appellees in the amount of $7,000 for which judgment was entered.

On appeal appellant designates only one point, but argues two general grounds for a reversal; One, there is no 'substantial evidence upon which to base the award of damages', and; Two, incompetent testimony was admitted in evidence.

One. By-passing for the moment the matter of alleged incompetent testimony, we have concluded there is substantial evidence to support the $7,000 judgment.

Homer Keicher, appellee, testified: I am the owner of the land, consisting of 192 acres, am seventy three years old, was born on the land and have lived there ever since; I used the land for farming--such as melons and truck crops and raising cattle; I know what property has sold for in that neighborhood; In my opinion the value of the land before the sewer line was put in was $70,000 and after that it was worth $50,000. He stated that due to the taking he had to repair a lot of fences to keep cattle 'and I can't even do that', and the odor from the sewer is awful bad.

Mrs. Keicher, the wife of Homer has lived on the land for twenty two years, testified: My family owns the property in the neighborhood, and I have an opinion as to the value of our farm. (Her opinion was the same as her husband.) She further stated that before the sewer line was put in we had no trouble with odors, but now when the wind is from the north 'it is just unbearable', and she could easily tell the difference between odors from the sewer line and the City dump.

Dale Killian testified: I have been a real estate broker in Washington County for fourteen years; have handled property 'well over the entire county and am familiar with the value of real estate, the rural type, and of the urban type'; I know the land here in question and have inspected it; in my opinion 'the value of the subject farm prior to its taking was $55,000 * * * the value of the remainder of the farm after the taking by the City is $45,000'.

King Wheeler, who has been a real estate broker in Washington County for twenty four years and says he has been acquainted with the land in question all that time, testified, in effect, that the land was worth $54,000 before the taking and $41,000 after the taking.

The above testimony was presented to the jury under instructions of the court to which appellant made no objection, and it was, of course, up to the jury to believe or disbelieve any part thereof. We are therefore unable to say there was no substantial evidence to support the jury's verdict for $7,000. In support of this conclusion we call attention to certain pertinent decisions of this Court.

In Housing Authority of Little Rock, Arkansas v. Winston, 226 Ark. 1037, 295 S.W.2d 621, we said that a non-expert witness who is acquainted with the land in question and says he knows the market value is competent to express an opinion as to its market value. In Ark. State Hwy Comm. v. Drennen, 241 Ark. 94, 406 S.W.2d 327 we held that a land owner could give his opinion as to the before and after value of his land. See also: Ark. State Highway Comm. v. Johns, 236 Ark. 585, 367 S.W.2d 436.

Two. We now examine appellant's contention that the case should be reversed because inadmissible testimony was erroneously introduced.

(a) Appellant moved to strike 'the entire testimony' of Dave Killian because it 'involves a lot of elements that are not properly considered in this suit'. The motion was overruled, and, we think, properly so. It is true that references were made by Killian (and other witnesses) to odors from sewer installations other than the pipe line-- this pursuant to appellees' cross-complaint. However, the cross-complaint was dismissed by the trial court. Also, in overruling appellant's motion the court sustained it in part by striking testimony relating to the City dump and the land fill. Appellant did not object to this ruling.

(b) Appellant moved to strike the 'entire testimony' of Wheeler. The trial court then made this statement: 'He can testify as to the value of this farm but if you are going to bring in an element of damage from odor, I will sustain it as to that part' because 'he didn't know there was any there before or not'. No other objection was made by appellant. At any rate we think appellant failed to show the witness had no reasonable basis for his opinion as he had formerly stated and as modified. In the Johns case, supra, we said:

* * *

* * *

'An expert witness, after having established his qualifications and his familiarity with the subject of the inquiry, is ordinarily in a position to state his opinion.'

* * *

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'It was incumbent upon counsel for the appellant to support their motion to strike by showing that the landowner's expert witnesses had no reasonable basis for their opinions.'

In view of the fact that appellant did not object to any of the instructions given by the court, we hold a fact question was presented to the jury as to the amount of damages.

We also find no merit in appellant's contention, backed by testimony of its witnesses, that the sewer line was a benefit, and not a detriment, to appellees' property. There was, however, no showing by appellant that such benefit (if any) was peculiar to appellees and did not likewise benefit other property as well. McMahan v. Carroll County, 238 Ark. 812, 384 S.W.2d 488, and Martin v. Raulston, 239 Ark. 769, 394 S.W.2d 133.

Affirmed.

FOGLEMAN, BROWN and JONES, JJ., dissent.

FOGLEMAN, Justice.

I cannot agree that the judgment should be affirmed in this case. If indeed it can be said that there is any evidence to support the jury verdict, I do not see how it can be said that there was no prejudicial error in the admission of testimony in the case.

Appellees, the landowners, offered the testimony of Dale Killian, H. G. Brady, King Wheeler and Charles Schumake, in addition to their own testimony, to show the damages they were entitled to recover. Little, if any, of this testimony was competent and most of it should have been stricken. When the incompetent testimony is eliminated, it cannot be said that the jury verdict can be sustained on what remains.

Dale Killian, a Fayetteville real estate man, testified of adequate background to qualify him as an expert to testify as to property values in Washington County. However, he did not understand that this suit was not concerned with a sanitary landfill and city dump on the north edge of appellees' property and he took these rather detracting factors into consideration in determining the reduced value of the Keicher property after the taking. The difference in 'before' and 'after' values fixed by him amounted to $10,000.00. He said it would be hard for him to take just one consideration in determining how much of the $10,000.00 is caused by the city dump. He said that on the landfill he would place about 1/5 the damage value, about 3/5 on the sewer, and 1/5 on the 'other damage.' This meant that only about $2,000.00 of the total damage was caused by the easement for the sewer line, the remainder apparently being due to the adjacent sewer plaint and the city dump. It is not clear as to how the remainder would be distributed. He testified that if it were not for the city dump and the treatment plant, the sewer line would have raised the value of the property probably $200.00 to $300.00 per acre. At the conclusion of his cross-examination, he repeated that the property was hurt by the dump right square against it and this was one of the things he had been taking into consideration in estimating the damages. I do not see how it can be said that his testimony should not have been stricken.

At no time did the court instruct the jury that they were not to consider that portion of this testimony regarding the noncompensable and unrelated element of damages claimed by appellees, nor did the instructions specifically advise the jury that they should not...

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3 cases
  • Arkansas State Highway Commission v. Highfill
    • United States
    • Supreme Court of Arkansas
    • April 20, 1970
    ...I submit that appellee's testimony has at least as reasonable a basis as did the testimony of landowners, in City of Springdale v. Keicher, 243 Ark. 161, 419 S.W.2d 800; Housing Authority of City of Searcy v. Angel, 239 Ark. 224, 388 S.W.2d 394; and many other I would also affirm the judgme......
  • Arkansas State Highway Commission v. Clark, 5--4965
    • United States
    • Supreme Court of Arkansas
    • September 22, 1969
    ...v. Holt, 242 Ark. 287, 413 S.W.2d 643; Housing Authority of City of Searcy v. Angel, 239 Ark. 224, 388 S.W.2d 394; City of Springdale v. Keicher, 243 Ark. 161, 419 S.W.2d 800. Even though many of the suggested infirmities in Clark's testimony have great bearing on the weight of his testimon......
  • Piggott State Bank v. Pollard Gin Co.
    • United States
    • Supreme Court of Arkansas
    • October 9, 1967

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