Lazenby v. Arkansas State Highway Commission

Decision Date01 February 1960
Docket NumberNo. 5-2063,5-2063
Citation231 Ark. 601,331 S.W.2d 705
PartiesEmma Louise LAZENBY, Appellant, v. ARKANSAS STATE HIGHWAY COMMISSION, Appellee.
CourtArkansas Supreme Court

Dinning & Dinning Helena, for appellant.

Dowell Anders, William H. Donham, Little Rock, and George O. Green, De Witt, for appellee.

WARD, Justice.

This is an eminent domain proceeding by the Arkansas State Highway Commission to condemn an easement for a right-of-way to cross appellant's lands, and the principal question involved relates to the competency of evidence.

The appellant-defendant, Emma Louise Lazenby, owned 14.2 acres of land adjacent to the corporate limits of the Town of Marvell. The Arkansas State Highway Commission, appellee, filed suit to condemn an easement for right-of-way purposes in 1.94 acres of land running in a curve across appellant's lands in such a way as to leave approximately 9 acres on one side and approximately 3 acres on the other side of the right-of-way. Appellee's appraisers had fixed the value of subject land at $950, which amount was accordingly deposited in the Court. Mr. Lazenby, husband of appellant, was the only witness who testified regarding the value of the condemned land. At the conclusion of his testimony appellee moved for a directed verdict. Thereupon the court, in sustaining the Motion, made substantially the following statement: 'The court is of the opinion that no substantial testimony was offered by the landowner upon which you could base a verdict and fix damages in excess of $950.00 * * *.' Under the instructions of the court the jury returned a verdict in that amount in favor of appellant. From such verdict and judgment appellant prosecutes this appeal.

Mr. Lazenby testified substantially as hereafter set out. Appellant owned 14.2 acres of land on Highway No. 20 adjacent to the Town of Marvell and suited particularly for industrial use; the Highway Department took a strip 120 feet wide through the property in a curved shape leaving 2.7 acres on one side and about 9 acres on the other side--the Highway Department figures show that 1.94 acres were taken. The witness testified that 20 years ago they sold 2 acres to a gin company for $1,000 per acre and that the value of the land had since increased more than 20%; recently the Federal Compress Company bought twenty acres within 100 yards of the subject land and paid $1,000 per acre for it and in addition paid $5,280 to build up the ground where they could use it; subject lands are higher than the land purchased by the Federal Compress Company; there is a railroad track along the side of subject land but there was no track on the above mentioned Compress land. The witness further testified that he was familiar with the value of lands in that community; that he had tried to buy land but was unable to do so; that he and his wife had had opportunities to sell their land but wanted to hold it for industrial purposes; that in his opinion he could sell subject land for more than $1,000 per acre; and in his opinion the land was worth more than $1,000 per acre.

'Q. What do you value your land, that is, what do you value this land?'

In response to an objection by the Highway Department the Court made this statement: 'The court will permit him to say what value he puts on the land, for whatever that is worth. The jury will be told that he has not yet qualified as an expert'.

It is our conclusion that the trial court was in error in directing a verdict for appellant in the sum of $950. In fact, we are unable to harmonize the action of the trial court directing the verdict with its previous statement, as shown above, that 'The court will permit him to say what value he puts on the land (referring to the witness) for whatever that is worth'. Likewise the trial court, in directing the verdict, stated: 'The court is of the opinion that no substantial evidence has been offered by the landowner upon which you could base a verdict and fix damages in excess of $950'.

It appears to us that appellee, and perhaps the trial court, erroneously thought the proper way to fix the value of the condemned land was to show the market value of the entire tract of land before the taking and the market value of the remaining land after the taking. This rule would be correct if appellant was seeking severance damages to the remainder of the land because of having been divided by the right-of-way. It will be noted, however, that the witness did not attempt to establish this kind of damages but was only seeking to show the value of the land that was actually taken.

Mr. Lazenby, the husband of appellant, had a right to testify as to the value of the land even though he did not qualify as an expert witness in the matter of appraising lands. In numerous cases we have allowed non-expert witnesses, and even the owners of the land, to testify regarding the market value of land if the testimony shows that they are familiar with such matters. In the recent case of Arkansas State Highway Commission v. Muswick Cigar & Beverage Co., Inc., Ark., 329 S.W.2d 173, this Court allowed a part-owner to testify regarding the market value of land condemned and there was no contention that the witness was an expert. In this case there is no question but that the witness, as shown by this testimony heretofore set out, was familiar with the market value of land in that immediate vicinity. Therefore, the trial court was correct in saying that it should go to the jury for what it was worth. See also Fort Smith & Van Buren District v. Scott, 103 Ark. 405, at pages 409-410, 147 S.W. 440, at pages 441-442.

Neither do we agree with appellee's contention, heretofore mentioned, that it was necessary for the witness to testify as to the value of the land before and after the taking. Since appeallant was only seeking to recover the value of the land actually taken it was proper to show the market value per acre. This having been done it was only necessary to multiply that amount by the number of acres taken. There is a long line of cases in support of this rule.

In the case of Little Rock & Fort Smith Railway Co. v. McGehee, 41 Ark. 202, appellee owned 'the river front for a quarter of a mile on the eastern or northern bank of the river'. Appellant sought to take only three or four acres of this land, and the question was 'the amount of compensation which the owner of the land condemned is entitled to receive'. There the Court approved testimony testablishing the value of land actually taken, and no mention was made of the before and after rule. In the case of ...

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  • Dept of Trans v. Joe C. Rowe et al
    • United States
    • North Carolina Court of Appeals
    • April 18, 2000
    ...can be offset by benefits allowed by the law). 2. See Bauman v. Ross, 167 U.S. 548, 42 L. Ed. 270 (1897); Lazenby v. Arkansas State Highway Comm'n, 331 S.W.2d 705 (Ark. 1960) (holding that when the taking is by a municipal corporation, special benefits may be setoff, even from the value of ......
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    ...by benefits allowed by the law). 2. See Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270 (1897); Lazenby v. Arkansas State Highway Comm'n, 231 Ark. 601, 331 S.W.2d 705 (1960) (holding that when the taking is by a municipal corporation, special benefits may be setoff, even from the v......
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    ...220 Ark. 932, 251 S.W.2d 477; Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S.W.2d 684. See also, Lazenby v. Arkansas State Highway Com'n, 231 Ark. 601, 331 S.W.2d 705. Baucum was not actually a case of first impression in Arkansas, except as to electrical power line rights of way......
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    ...use with a market value and commanded a higher value as a separate entity, such value has been allowed. Lazenby v. Arkansas State Highway Commission, Ark., 331 S.W.2d 705; Wishek Investment Co. v. McIntosh County, The record here discloses that, except for Parcel 138 (driveway), the smalles......
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