Loyd v. Southwest Arkansas Utilities Corp.

• Decision Date: 12 September 1979
• Docket Number: No. 78-85,78-85
• Citation: Loyd v. Southwest Arkansas Utilities Corp., 264 Ark. 818, 586 S.W.2d 229 (Ark. 1979)
• Parties: Robert J. LOYD and Iris June Loyd, Husband and Wife, et al., Appellants, v. SOUTHWEST ARKANSAS UTILITIES CORPORATION, Appellee.
• Court: Arkansas Supreme Court

Page 229

586 S.W.2d 229

264 Ark. 818

Robert J. LOYD and Iris June Loyd, Husband and Wife, et al Appellants, v.SOUTHWEST ARKANSAS UTILITIES CORPORATION, Appellee.

No. 78-85.

Supreme Court of Arkansas, In Banc.

Sept. 12, 1979.

Appeal from Benton Circuit Court; W. H. Enfield, Judge.

FOGLEMAN, Justice, concurring.

(This opinion, originally filed in concurrence with the majority opinion originally filed is refiled as a concurrence with the substituted opinion rendered on rehearing on May 21, 1979, Ark., 580 S.W.2d 935).

I am both amazed and alarmed that this court would discuss an issue (1) not raised in the trial court, (2) not raised on appeal and (3) upon which the parties did not want a decision.The excuse for doing so is not only unprecedented, it is revolutionary in Arkansas jurisprudence.The opinion is purely legislative in nature, not just in the sense of lawmaking, but also in the sense of determining the extent of a utility company's power of eminent domain.It makes policy determinations that should be left to the General Assembly.There is no reason for this gratuitous action, which is wholly unnecessary in giving an answer to the question the parties want answered.I have never before heard of a reversal of a judgment for a reason admittedly different from any reason relied upon by an appellant.The reason given for reversal is actually contrary to the position taken by appellants.

The majority has reversed the judgment on the nature and extent of the taking, regardless of the fact that appellants have clearly and fully waived any such objection.The case has been treated here as if the court were affirming a judgment adverse to appellee on the extent of the taking.The points for reversal stated by appellants do not even remotely approach the ground upon which the majority reverses the judgment.Every argument advanced here and every point for reversal stated by appellants were based on their contention that they were entitled to recover the full market value of the entire tracts through which the basic right-of-way passes, because of the secondary easement.In treating Ark.Stat.Ann. § 35-302(Repl.1962), appellants say:

The statute makes it clear that if the company wishes to have a right of ingress and egress, or a "secondary easement" as it was called by the lower court, then such right and access must be obtained by condemnation, and all the rules for condemning property and the assessment of damages thereto apply.

In objecting to the court's instruction that appellants should be compensated for the value of the fee in the 100-foot easement, but that otherwise the measure of just compensation was the difference in the market value of the whole tract before the taking and its value after the taking, appellants' counsel said:

Defendant landowners object to the court's InstructionNo. 3 because, while it correctly states the law regarding the 100-foot easement, it does not accept the fact that the right of ingress and egress is an easement, and that it should also be compensated by the condemning authority as if the taking were in fee.

Appellants complain here about the failure of the court to give three instructions they requested.Although two of these relate only to their theory that they were entitled to recover the full value of their farms crossed by the right-of-way, the first instruction they requested read:

You are instructed that a right-of-way for ingress and egress is an easement, and the landowner is entitled to the fair market value of his land, for such easement is imposed as if the land were taken in fee.

The majority has taken a much more drastic step than consideration of a question raised by a party for the first time on appeal.It has, in considering a question Not raised on appeal, veritably built a straw man for the sole purpose of destroying it in order to reverse the judgment in this case.

I do not mean to say that the judgment should not be reversed.I can agree with appellants that the order of the trial court striking all of the testimony of appellants' expert witness on the issues of ingress or egress was too comprehensive, although it would have been proper, if it had been limited to striking his testimony as to the Value of the remaining lands after the taking of the right of way.If appellants are right in their assertion that they are entitled to recover as if the entire tract had been taken in fee, there was no basis for striking this testimony.Yet, this is the exact issue that was presented to the trial court and the issue presented to us on appeal and the one this court should answer, without directing the parties to litigate other issues.I think that this witness had no fair and reasonable basis for his testimony that the property subject to the secondary easement had no value after the taking and that to hold that it did would be an unwarranted and absurd extension of the doctrine of Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S.W.2d 399, and other such decisions of this court.Certainly, it was never contemplated that the application appellants urge be made of a doctrine that is sound when limited to the applications we have made.So, for reasons elaborated upon elsewhere in this opinion, I think striking the expert's testimony as to the value of the property after the taking would have been appropriate.But he did elaborate upon the disadvantages of the "ingress and egress" to the landowner.This evidence was properly admissible because a landowner has the right to show every disadvantage which his remaining property suffers by reason of a partial taking under the power of eminent domain.Arkansas-Missouri Power Co. v. Sain, 262 Ark. 326, 556 S.W.2d 441;Arkansas State Highway Com'n v. Lewis, 258 Ark. 836, 529 S.W.2d 142.See also, Arkansas State Highway Com'n v. Wallace, 247 Ark. 157, 444 S.W.2d 685.He may show every element which a businessman of ordinary prudence would consider before purchasing the property.Arkansas Power & Light Co. v. Haskins, 258 Ark. 698, 528 S.W.2d 407;Kirk v. Pulaski Road Improvement District # 10, 172 Ark. 1031, 291 S.W. 793(on rehearing);Pulaski County v. Horton, 224 Ark. 864, 276 S.W.2d 706.See also, Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S.W. 792, 4 Am.St.Rep. 51;Stuttgart & Rice Belt R. R. v. Kocourek, 101 Ark. 47, 141 S.W. 511.So the court erred in striking all of the testimony of this witness on the issue of the right of ingress and egress of the power company.

There was a reason, however, for striking the testimony of the expert witness as to the value of the lands remaining after the taking of the right-of-way easement.There was no fair and reasonable basis for saying they had no value.This would mean that no informed purchaser would pay anything for the land.This is ridiculous on its face.But the approach taken by appellants and their expert was based upon an erroneous legal premise, i. e., that Baucum and its progeny require the taker to pay for a fee simple title for the secondary easement which, as I will presently show, is ancillary to the primary easement, i. e., the actual right of way.

In properly evaluating the issues presented to us, we must also look at the instruction given by the trial court and the objection made to it.The pertinent instruction was No. 8, which is set out in full in the majority opinion.Appellants' objection was as follows:

Defendant landowners object to the court's InstructionNo. 8 which is plaintiff's requested Instruction A, for the reason that the right of ingress and egress is improperly defined as a secondary easement rather than simply an easement and for the failure of the instruction to provide that the landowner is entitled to recover for the value in fee of the imposition of that easement and further that the part relating to future damages of the Defendant's land is couched in terms of unreasonable use whereas the landowners right of recovery in the future is limited to Plaintiff's negligent use and that the case of Board of Directors, St. Francis Levee District v. Morledge, (231 Ark. 815, 332 S.W.2d 822,) a 1960 case of an Arkansas Supreme Court decision as it cites Baucum v. Arkansas Power and Light, 179 Arkansas 154, (15 S.W.2d 399,) in discussing damages stated the court should have charged the jury that full compensation for the market value and damage assessed in this suit as future damages could be recovered only for the negligent use of the right-of-way condemned and further that the Arkansas Supreme Court has established that all land secured by a taking is assessed in one proceeding and the damages to be covered must cover all future use of the condemned properties that are or should be within the condemning of the property as the time of the taking and instruction the court's instruction in terms couched in terms of the words, "necessary or need," do not take that rule of law into consideration and the Arkansas Supreme Court having further established that the rule should be that the right of the landowner is to sue for his damages is complete and he may recover the entire damages that may be caused by the location and subsequent construction.

In that connection, and for the reasons previously stated, defendant landowner further objects the court's refusal to give landowners offered instruction:

"You are instructed that a right-of-way for ingress and egress is an easement, and the landowner is entitled to the fair market value of his land, for such easement is imposed as if the land were taken in fee."

Thus it is clear that appellants objected Only to the denial of compensation as if the entire tract was taken in fee (a sort of have-your-cake-and-eat-it-too approach) and not to the nature or extent of the taking.

The holding in Baucum was never intended to be as comprehensive in scope as appellants urge.It has never been held that the taking of every easement requires the taker to pay the full...