Ft. Smith & Van Buren Bridge Dist. v. Scott

• Decision Date: 22 April 1912
• Citation: 147 S.W. 440
• Parties: FT. SMITH & VAN BUREN BRIDGE DIST. v. SCOTT et al.
• Court: Arkansas Supreme Court

147 S.W. 440

FT. SMITH & VAN BUREN BRIDGE DIST. v. SCOTT et al.

Supreme Court of Arkansas.

April 22, 1912.

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

Condemnation proceedings by the Ft. Smith & Van Buren Bridge District against P. D. Scott and others. From a judgment assessing damages, petitioner appeals. Affirmed.

Hill, Brizzolara & Fitzhugh, of Ft. Smith, for appellant. Mehaffy, Reid & Mehaffy and Carmichael, Brooks & Powers, all of Little Rock, for appellees.

KIRBY, J.

This is a proceeding by appellant to condemn 10 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 Ft. Smith & Van Buren District, by a special act of the Legislature of 1909. The answer set up that appellees owned and operated a ferry at the point; 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; that the defendants verily believe that the value of the land is materially enhanced in value 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 purposes 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, 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 traveled highway leading from the city of Van Buren to the city of Ft. Smith; 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 $100,000, 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 appellants 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 landowner, 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; Railway v. Stroud, 45 Ark. 278; Railway v. Hunt, 51 Ark. 332, 11 S. W. 418; Smith v. Railway, 105 Ill. 511; Railway v. Hayes, 13 Neb. 489, 14 N. W. 521.

Appellant's contention that error was committed in permitting 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 alleges, as the law requires it shall, 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 in 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. Railway v. Anderson, 39 Ark. 172; Railway v. Kirby, 44 Ark. 106; Railway v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51; Lewis on Eminent Domain, § 656.

The question of market value is to be determined upon the testimony of...