fort Smith & Van Buren District v. Scott

• Decision Date: 22 April 1912
• Citation: 147 S.W. 440,103 Ark. 405
• Parties: FORT SMITH & VAN BUREN DISTRICT v. SCOTT
• Court: Arkansas Supreme Court

147 S.W. 440

103 Ark. 405

FORT SMITH & VAN BUREN DISTRICT v. SCOTT

Supreme Court of Arkansas

April 22, 1912

Appeal from Scott Circuit Court; Daniel Hon, Judge; affirmed.

Judgment affirmed.

Hill Brizzolara & Fitzhugh, for appellant.

1. It was error to try the cause on the substituted answer. The whole case turned on the value as a bridge site, a claim not made in the original answer. It was also an abuse of discretion to refuse a continuance. 77 Mo. 26; 71 Ark. 222.

2. The fundamental error was in admitting incompetent testimony of the bridge value. 49 Ark. 381; 97 Id. 241; 52 S.E 725; 18 A.D. 194; 26 W.Va. 672; 98 U.S. 403; 159 Pa.St. 99; 54 A. 339.

3. The whole doctrine of opinion evidence is an exception to the rule that witnesses must state facts.

The opinion evidence here lacked the necessary showing to render it admissible; 159 Pa.St. 99; 54 A. 339; 95 Ark. 284; 67 Id. 371; 62 Id. 1; 91 Ark. 133; 1 Wigmore on Ev. §§ 558, 653, 711, 713, 720; 115 Pa.St. 325; 8 A. 764; 54 Id. 339; 56 N.E. 610.

4. The ferry privilege was not an element of damages, as the privilege is revocable by the State. 78 Tenn. 731. 18 S.W 626; 27 Am. Dec. 655; 68 A. 1093; 29 Conn. 210; 3 Ind. 21; 18 Fed. Cas. 1234; 49 F. 1234; 49 Id. 114; Randolph on Em. Domain, §§ 136-139; 2 Lewis on Em. Dom. § 484-7.

5. The verdict is excessive.

Mehaffy, Reid & Mehaffy and Carmichael, Brooks & Powers, for appellees.

1. There was no error in trying the case on the substituted answer, nor in refusing a continuance. Kirby's Dig., § 6173; 85 Ark. 414; 38 Id. 402; 58 Id. 513; 70 Id. 364; 101 Ark. 513; 67 Ark. 48. Nor was any answer necessary. Lewis on Em. Dom. § 591; 45 Ark. 278; 51 Id. 332; 114 Am. St. 974; 41 Ark. 202; 97 Id. 234; 91 Id. 128; 49 Ark. 381; 17 Ga. 30; 134 Ia. 563; 111 N.W. 1027.

2. The testimony as to the bridge site was complete. 134 Ia. 563; 111 N.W. 1027.

3. Under the evidence and instructions the jury properly considered the element of the value as a ferry right, but not a single element of value as a ferry right entered into the verdict.

4. If there was error in the instructions, the error was against defendents.

5. The verdict is not excessive. The defendants were entitled to have the jury consider the land for its most valuable use, and ferry rights and toll value should have been considered. 134 Ia. 563; 97 Ark. 214; Lewis on Em. Dom. §§ 707 and 722; 1 Barbour (N. Y.) 294; 15 Mont. 452; 48 Am. St. 692; 49 Ark. 382; 88 Am. Dec. 113, 121; 91 Ark. 128; 41 Id. 202; 98 U.S. 403; 51 Ark. 272; 51 Id. 504; 52 Id. 64; 91 Ark. 128; 148 U.S. 310; 45 Ark. 429; 77 Id. 387.

OPINION

KIRBY, J.

This is a proceeding by appellant to condemn ten acres of land of appellees on the Sebastian County side of the Arkansas River, opposite Jefferson Street in the city of Van Buren, for a site for a free bridge authorized to be constructed by the Fort Smith & Van Buren District, by a special act of the Legislature of 1909. (Acts 1909, p. 325.)

The answer set up that appellees owned and operated a ferry at the point, and that the right to continue its operation depended upon the ownership of the land on the banks of the river; that the land was more valuable by reason of the ferry right and privilege; "that the ferry rights in controversy are especially valuable by reason of the fact that the ferry is operated between two cities and communities containing large populations, and that the defendants verily believe that the value of the land is materially enhanced by its availability for ferry privileges and uses, which could not exist without the land; that by the taking of it at the approaches to the ferry the ferry rights and privileges will be totally destroyed, thereby damaging the defendants in the sum of $ 100,000; that the land itself for agricultural and other purposes is worth at least $ 2,500 per acre, but that, viewed, valued and estimated with reference to the ferry rights and privileges, it would amount to $ 10,000 per acre; and prayed judgment for $ 100,000.

The venue was changed to Scott County, and, on the calling of the case for trial there and the plaintiff's announcement of ready, the defendants, over its objection, filed a substituted answer, alleging that said land was highly valuable because of its peculiar position and location for the purpose of a ferry site; that it is particularly valuable because of its proximity to the city of Van Buren and the main travelled highway leading from the city of Van Buren to the city of Fort Smith; and that it is particularly valuable because of its adaptability and feasibility for the site of the bridge erected by the plaintiffs upon the same; that it is particularly valuable on account of its general location and surroundings. Defendant alleges its fair cash market value to be one hundred thousand dollars, for which sum judgment was prayed.

Appellees owned all the river bank on that side of the river upon which the bridge could be located, and the only issue in the court below was as to the value of the property taken. The estimates of the witnesses ranged all the way from $ 750 to $ 100,000. The verdict of the jury fixed the damages at $ 10,000, and from the judgment thereon appellant appealed.

It is contended that the court erred in permitting the substituted answer to be filed, which it is claimed changed the issue, and in refusing to grant a continuance on account thereof, in admitting incompetent testimony, and in giving and refusing certain instructions, and also that the verdict is excessive.

1. By the terms of the act, lands necessary for the improvement were authorized to be condemned in the same manner as lands for railroad purposes and right-of-way are condemned by railroad companies. Such proceeding is for the purpose of assessing the damages for an injury the petition itself alleges, and ascertaining the amount of compensation which the company shall pay for the lands condemned, and the statute does not appear to contemplate that an answer shall be filed by the land owner, when that is the sole question for determination, and certainly none need be filed unless special damages which were not contemplated on the filing of the petition are claimed. Kirby's Digest, §§ 2947, 2951-2952; Bentonville Railroad v. Stroud, 45 Ark. 278; Railway v. Hunt, 51 Ark. 330; Smith v. Chicago & W. I. Rd. Co., 105 Ill. 511; Republican Valley Rd. Co., v. Hayes, 13 Neb. 489, 14 N.W. 521.

Appellant's contention that error was committed in premitting the filing of the substituted answer on the calling of the case for trial, which alleged that the lands sought to be taken were particularly valuable for bridge site purposes, and that a new issue was thereby introduced, and that it was surprised, and, on that account, entitled to a continuance, is not well founded.

The granting of continuances, as has been uniformly held, is within the sound discretion of the trial court; and, unless such discretion appears clearly to have been abused, it is not the practice to set aside a judgment for a denial thereof. Taylor v. Gumpert, 96 Ark. 354, 131 S.W. 968.

The petition for condemnation alleged, as the law requires it should, that the land was needed as a site for the west approach to the free bridge, to be constructed in accordance with the act of the Legislature providing for the construction thereof, and prayed for damages to be assessed for the land taken, thus tendering the issue of the amount of the compensation which it should be required to pay the owner therefor.

Although an answer had been filed, setting out that the land was particularly valuable for the operation of a ferry and as a site therefor, it could not have limited the damages for the injury which the owner was entitled to as compensation for the land--the issue tendered by the petition--to that alone, it evidently being intended more in the nature of an allegation of special damages only, and certainly appellant could not have been surprised by the allegations of the substituted answer that it was particularly valuable as a bridge site, since that was the purpose for which it was sought to be condemned, and all value that attached to the land in that connection, its market value for all purposes, was necessarily contemplated on the filing of the petition.

The market value of the land for any and all purposes could have been proved without the substituted answer, the issue being raised or tendered by the filing of the petition to condemn and assess the damages, and the court committed no error in allowing it to be filed and refusing to grant a continuance on account thereof.

2. It is next contended that certain witnesses were not qualified to express opinions upon the value of the land taken, and that their testimony was incompetent. The question as to who are competent to give such opinions is one which must be left largely to the discretion of the trial court. St. Louis, A. & T. Rd. v. Anderson, 39 Ark. 167; Texas & St. L. Ry. v. Kirby, 44 Ark. 103; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S.W. 792; Lewis on Eminent Domain, § 656.

The question of market value is to be determined upon the testimony of those who have knowledge upon that subject or whose business or experience entitles their opinions to weight, and is usually established by the opinions of witnesses who are familiar with the property taken, this being one of the recognized exceptions to the general rule that witnesses are required to state facts and not express opinions. Cooley, Const. Lim. 565; Little Rock Junction Ry. v. Woodruff, supra.

In Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206, the court said: "In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in the sale of...