Lindsey v. Forrest City, 75--345

Decision Date17 May 1976
Docket NumberNo. 75--345,75--345
Citation259 Ark. 743,536 S.W.2d 305
PartiesFloyd Estelle LINDSEY et al., Appellants, v. FORREST CITY, Appellee.
CourtArkansas Supreme Court

Butler, Hicky & Jones, Forrest City, for appellants.

Knox Kinney, City Atty., Forrest City, for appellee.

GEORGE ROSE SMITH, Justice.

In 1971 the City of Forrest City, with a population of more than 12,000, made plans for the expansion and improvement of its sewer system. The project included the creation of a 160-acre oxidation pond, in which sewage would be treated with chemicals and by exposure to the air. This eminent domain proceeding was brought by the city to condemn 121.12 acres out of the appellants' 696-acre farm, to be used as a site for part of the oxidation pond. At the trial the city offered only one valuation witness, James Montgomery, who testified that just compensation to the landowners would be $42,392, which Montgomery arrived at by valuing the 121.12 acres at $350 an acre. That was the precise amount of the jury's verdict. For reversal the appellants contend that the trial court should have stricken Montgomery's valuation, because he did not consider the effect of the taking upon the before and after value of the landowners' entire farm.

We agree with the appellants, that Montgomery did not use a permissible method of fixing just compensation. There is ample proof that the oxidation pond will give off an offensive odor. Moreover, health department regulations prohibit the construction of dwelling houses within 600 feet of such a pond, with the result that 72.72 acres of the landowners' remaining property will not be available for residential use.

Montgomery candidly and unequivocally admitted, upon his original cross- examination, that he had determined just compensation solely by valuing the tract being taken at $350 an acre. He said that he did not consider the rest of the 696-acre tract, 'because I wasn't appraising the other land.' When asked if he had put a value on the whole farm, he replied: 'There's no way that you could do that . . . I did not appraise highway frontage. I was not asked to appraise highway frontage.' He explained that he had not determined the value of the whole farm before the taking: 'I wasn't interested in that.'

The trial judge took the landowners' motion to strike under advisement, to allow Montgomery to be questioned further upon redirect examination. Counsel for the city tried to rehabilitate the witness's testimony, but the effort failed. Montgomery simply had not considered the effect of the taking upon the rest of the 696-acre farm. In saying that he had indeed considered the effect of the oxidation pond he expressed the opinion that the presence of the pond would improve the farm as a whole. He was unaware of the 600-foot restriction. He insisted that the 696-acre tract was worth $350 an acre before the taking and $350 an acre afterwards. Needless to say, his method of valuation was not a proper way to fix just compensation, because the constitutional prohibition against the taking of property without just compensation 'extends, not only to the property actually taken, but to the damage, if any, done to the property not taken.' State Life Ins. Co. of Indianapolis v. Ark. State Highway Comm., 202 Ark. 12, 148 S.W.2d 671 (1941). Thus Montgomery's estimate was demonstrably wrong and unfair to the landowners, but it was undeniably the basis for the jury's verdict.

Although the point was not made in the trial court and is not raised in the briefs here, it was suggested at our conference that the trial judge's ultimate conclusion was right and should be affirmed, because the landowners asked that the court 'strike the testimony of Mr. James Montgomery.' It is said that the motion was properly denied, because part of the testimony was admissible. Young v. Ark. State Highway Commn., 242 Ark. 812, 415 S.W.2d 575 (1967).

The cited rule is sound in certain circumstances, but it should not control this case. When the bare motion to strike is made, with no elaboration, and the trial court simply denies it, his action should be affirmed if part of the testimony is admissible, as in Ark. State Highway Common. v. Bowers, 248 Ark. 388, 451 S.W.2d 728 (1970). But here the naked motion did not stand alone. Counsel for the landowners fully explained his objection to Montgomery's testimony. The trial judge agreed, saying that 'the statement which he made, if it stands as such, is not a proper appraisal.' The city's attorney did not question the wording of the motion; instead, he insisted that the witness should be allowed to clarify his position upon redirect examination. The court afforded counsel that opportunity and, after Montgomery's ineffective effort to explain his position, denied the motion to strike, on the ground that the witness's testimony was 'substantially in compliance' with the rules of evidence. In the circumstances the attorney's objection was clearly sufficient, for it met the statutory requirement that he state the grounds for his objection and make known the action which he desired the court to take. Ark.Stat.Ann. § 27--1762 (Repl.1962); Bell v. Kroger Co., 230 Ark. 384, 323 S.W.2d 424 (1959).

Reversed.

FOGLEMAN, J., dissents.

FOGLEMAN, Justice (dissenting).

I would affirm the judgment in this case. I would point out that there was only one point for reversal. It was stated thus:

THE TRIAL COURT ERRED IN DENYING THE MOTION OF APPELLANTS TO STRIKE THE TESTIMONY OF JAMES MONTGOMERY, EXPERT WITNESS FOR THE APPELLEE.

Since this is the case, the question of sufficiency of the evidence to support the verdict is not for our consideration. We may only consider this one point. I submit that there was no reversible error and that the court has invented both a procedure heretofore unknown, not only in eminent domain cases, but in any other, and a new rule of evidence.

I think the majority's error arises from a faulty premise, i.e., that the function of the expert opinion witness is to fix the amount of just compensation. This is not the case. This is what the expert witness cannot do. This is solely the function of the jury, in the exercise of its own fair and independent judgment. Ark. State Hwy. Comm. v. Schanbeck, 240 Ark. 277, 398 S.W.2d 897. Expert witnesses do not decide disputed questions of fact, but only give opinions upon the matters upon which their opinion is sought, to enable the jury to determine the question. St. Louis I.M. & S. Ry. Co. v. Williams, 108 Ark. 387, 158 S.W. 494.

The place of expert opinion evidence in a trial was articulated clearly in American Bauxite Co. v. Dunn, 120 Ark. 1, 178 S.W. 934, Ann.Cas. 1917 C 625, thus:

Experts are allowed to give testimony by way of opinion because they are presumed to have acquired more skill and knowledge and are more capable of forming a correct opinion as to the subject- matter of the question under discussion, and their opinions are admitted in evidence for the purpose of aiding the jury to understand questions which inexperienced persons are not likely to decide correctly without such assistance. But the testimony of experts may receive only such consideration by the jury as the testimony may appear to the jury to deserve.

The market value of real estate is a matter of opinion. The objective in a trial to determine just compensation is to give the jury all possible information bearing upon the question. The opinion of witnesses who are sufficiently well informed on the subject are admitted, as an exception to the general rule, as an aid to the jury. Ark. State Hwy. Comm. v. Schanbeck, supra; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S.W. 792, 4 Am.St.Rep. 51; Ft. Smith & Van Buren Bridge Dist. v. Scott, 103 Ark. 405, 147 S.W. 440. This sort of testimony is advisory only. Ark. State Hwy. Comm. v. Schanbeck, supra. The opinion of such a witness goes to the jury for what it is worth in the jury's eyes. St. Louis, Ark. & Texas Rr. v. Anderson, 39 Ark. 167. It is to be considered in connection with related facts upon which it is based. Ark. State Hwy. Comm. v. Warnock, 241 Ark. 998, 411 S.W.2d 283. It is for the jury to determine the weight to be given to the opinions of these witnesses, depending to some extent on the interest, candor, demeanor, experience, intelligence and knowledge of the witness and the reasonableness of his testimony. Ft. Smith & Van Buren Bridge Dist. v. Scott, supra; Bridgman v. Baxter County, 202 Ark. 15, 148 S.W.2d 673; Ark. State Hwy. Comm. v. Schanbeck, supra.

The rules governing the determination of just compensation in eminent domain cases have been long and firmly established in this state. The elements which enter into estimation of damages to ascertain the amount of compensation due a landowner for the taking of a right of way across his land are the market value of that land actually appropriated and the injury to the remaining land. St. Louis, Ark. & Texas Rr. v. Anderson, supra. Testimony in cases involving the taking of lands for right of way should be directed first to the actual value of the land taken and then to the damage resulting to the remainder of the tract. Springfield & Memphis Ry. v. Rhea, 44 Ark. 258. The measure of damages allowed for the taking of land for right of way is the market value of the land taken and the damage resulting to the owner's remaining land from the construction of the improvement. Pine Bluff & W. Ry. Co. v. Kelly, 78 Ark. 83, 93 S.W. 562; Texas Illinois Natural Gas Pipeline Co. v. Lawhon, 220 Ark. 932, 251 S.W.2d 477. Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S.W.2d 684. It has been said that the correct measure of 'damages' in highway partial taking cases is the market value of the land taken plus the damages, if any, to the owner's remaining land not taken, less the special benefits, if any, by reason of the construction of the highway. Ross v. Clark County, 185 Ark. 1, 45 S.W.2d 31; Hempstead County v. Huddleston, ...

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  • Arkansas State Highway Com'n v. Lee Wilson and Co., Inc., CA
    • United States
    • Arkansas Court of Appeals
    • July 7, 1993
    ...was the highest before and after difference testified to by the witnesses for the State Highway Commission. And in Lindsey v. Forrest City, 259 Ark. 743, 536 S.W.2d 305 (1976), the court held that the appraisal of the only value witness offered by the city should have been stricken because ......

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