Pulaski County v. Horton

• Decision Date: 28 March 1955
• Docket Number: No. 5-640,5-640
• Citation: Pulaski County v. Horton, 276 S.W.2d 706, 224 Ark. 864 (Ark. 1955)
• Parties: PULASKI COUNTY, Appellant, v. J. M. HORTON and J. F. Head, Appellees.
• Court: Arkansas Supreme Court

Page 706

276 S.W.2d 706

224 Ark. 864

PULASKI COUNTY, Appellant, v. J. M. HORTON and J. F. Head, Appellees.

No. 5-640.

Supreme Court of Arkansas.

March 28, 1955.

J. Frank Holt, John T. Jernigan and William H. Donham, Little Rock, for appellant.

L. A. Hardin, Little Rock, for appellees.

MILLWEE, Justice.

Appellees, J. M. Horton and J. F. Head, each own three lots upon which they reside at the intersection of West 36th street and Barrow Road in the John Barrow Addition to Pulaski County, Arkansas. Head's home is combined with a store which he operates on the Southwest corner of the intersection while Horton's property is directly across Barrow Road on the Southeast corner. In March, 1953, the Pulaski County Court entered an order providing for acquisition of rights-of-way for the purpose of widening and black-topping Barrow Road as a farm-to-market project and the work was begun in May, 1953. The improvement entailed considerable grading and changes in drainage structures in the vicinity and the taking of a strip of land off the East end of Head's lots 35 feet wide and 144 feet long adjacent to the right-of-way directly in front of his store and home. A strip 10 feet wide and 137 feet long was taken off the West side of Horton's lots and a strip 15 feet wide and 128 feet long was taken off the North side of said lots.

Pursuant to the acquisition order appellees on October 9, 1953, filed claims for damages against appellant, Pulaski County, which were disallowed by the county court. After an extensive hearing in March, 1954 before the circuit court sitting as a jury, on appeal, the cause was taken under advisement. On June 11, 1954 the court submitted to counsel a statement of his findings of fact and conclusions of law with directions that a precedent for judgment be prepared awarding damages to Head in the sum of $6,000 and Horton in the sum of $2,500. On June 15, 1954 the county filed a motion requesting that it be allowed credit for improvements in the amount of $1,748.57 to the Head property made after the taking of testimony by the court and before rendition of the court's statement on June 11, 1954. This motion was resisted by appellee Head but the court reopened the case and proceeded to hear further evidence regarding the additional improvements on June 28, 1954, when a final judgment was entered under which the award to Head was reduced to $4,975.02. Pulaski County has appealed and Head has cross-appealed from the court's action in reopening the case for further testimony relating to the additional improvements.

The record designated by the parties on this appeal does not include any of the evidence taken at the first hearing but does include the statement made and submitted to counsel on June 11, 1954 and this statement contains a general r esume of the testimony adduced at the first hearing. The record also includes the court's supplemental statement following the second hearing which stipulates that it does not cover the testimony adduced at that hearing. A supplemental 'bill of exceptions' was filed by appellees containing the testimony introduced at the second hearing on June 28, 1954, but we have not been favored with an abstract of this portion of the record.

I. The Direct Appeal. Appellant's only contention for reversal is that the circuit court used the wrong measure of damages in fixing the awards to appellees. It is argued that in fixing the amount of damages the court based its findings and conclusions solely on the estimated costs of restoring each property to its former condition when it should have determined the difference between the market value of the lots before and after the taking. The court's findings clearly refute this contention. After detailing the general conditions including the drainage facilities existing before and after the improvement, the statement of the court reads:

'The proof in this case is somewhat in conflict. The engineer, John P. Powers, a licensed civil engineer, for the land owners testified that no access had been provided for Head, and that in his opinion in order for the property owner to be made completely whole, it would be necessary to place in the ditch a corrugated metal pipe arch culvert with earth fill covering, and that a covered junction box for joining the double 42 inch culvert with the double 60 inch culvert be provided. His estimate of the reasonable cost of this work is $6,400.00. The engineer is also of the opinion that the drainage facilities were probably inadequate and that Head would suffer some damages as a result of the impounded water overflowing his property. He felt that the property owners' views and access had been impaired as a result of the raising of the road.

'The engineer is of the opinion that the Horton property is going to be subject to intermittent and at least partial flooding because of the insufficiency of the drainage facilities that were provided. He is of the opinion that a wall along the south side of the ditch running east and west would be necessary to protect the lawn and the Horton home. His estimate of the cost of building this wall was $1,875.00. Also Horton testified that by reason of the raising of the road in front of his home it made it inconvenient for him to drive his car in the driveway in his yard, as he could before the raising of the road, and back his car out, but now he has to turn his car around in the yard to get it out.

'The real estate expert who testified for the property owners, was of the opinion that the Head property was worth $11,500.00 before the road was constructed, and that it was now worth $7,500.00. He qualified his testimony by saying that in arriving at this figure, he did not take into consideration the cost of providing ingress and egress across the ditch to the home and store. He disclaimed a lack of knowledge regarding this feature and said further that in his opinion that with the ditch covered, the property owner had still suffered a damage of some $4,000.00 over and above any benefit to the property that may have been added by reason of the improvements. He was of the opinion that the Horton property had a value of $7,750.00 before the taking and of $6,250.00 after the taking, however, he qualified his estimate by saying he did not take into consideration the cost of building the wall necessary for the protection to Horton's property. Horton felt that his damages would run from 5 to 6...