State Highway Commission v. Byars

Decision Date30 March 1953
Docket NumberNo. 5-32,5-32
Citation256 S.W.2d 738,221 Ark. 845
PartiesSTATE HIGHWAY COMMISSION et al. v. BYARS et al.
CourtArkansas Supreme Court

Phil H. Loh, III, Morrilton, William L. Terry, Little Rock, Clyman E. Izard, Van Buren, for appellants.

Franklin Wilder, Ft. Smith, Robinson & Edwards and Batchelor & Batchelor, Van Buren, for appellees.

ROBINSON, Justice.

This appeal grows out of an eminent domain proceeding wherein Crawford County and the Arkansas State Highway Department, appellants, acquired lands owned by the appellees W. B. Byars and wife Willie Catholene Byars, and Tony Christello and wife Mardelle Christello, for a highway right-of-way. 9.405 acres were taken from the Byars; and from the Christellos 9.073 acres plus 1.316 acres and lots combined, which includes a portion of 10 lots in Monte Vista Subdivision to Alma, Arkansas, totalling a little over ten acres taken from the Christellos. The cases were consolidated and a jury gave the Byars a verdict in the sum of $25,000 and the Christellos $21,500. One witness for appellants testified that there had been an enhancement in value of the farms by reason of the location of the new road, and other witnesses for appellants estimated Christello's damages to be from $275 to $2218.10; and damages to Byars from $846.27 to $4499.25. The principal issue on appeal is whether the verdicts are excessive.

We will first discuss the Christello lands. The farm consists of 400 acres which Christello purchased in 1946 for the consideration of $17,500; and included in the purchase price was what is known as the Canyon Club, which he sold shortly thereafter for $7800, resulting in the 400-acre farm actually costing him $9700, or about $25 per acre. In 1949 he bought the Monte Vista Subdivision consisting of 198 lots as platted, for the consideration of $5,000. The witness Christello testified that he did not know how many lots were in the subdivision, that he had never counted them; but the plat introduced in evidence shows 198 lots. He also testified that there was other consideration, but was vague and indefinite as to what the other consideration consisted of and never did say exactly what it was. No lots have been sold from this subdivision.

The 400 acres is divided by U. S. Highway 64, which henceforth will be referred to as old 64. 80 acres are located north of old 64 and do not join any of the other Christello property; about 180 acres are located south of old 64 and are not connected in any manner with the other lands except by a culvert under old 64, used as an underpass. This leaves approximately 140 acres in one block north of old 64, on which are located the improvements.

Old 64 swings sharply southwest a short distance before it reaches Christello's improvements, going in front of the buildings. The new road which is being built on lands taken from Christello continues westward at this point so that the new road will go to the rear of the improvements, severing the approximate 80 acres on which the improvements are located from an approximate 55 acres which will now be north of new 64. Old 64 is not being vacated or abandoned. So far as the farm land is concerned, it will be damaged to the extent of the loss of the 9 and a fraction acres, plus the severance from the 55 acres.

The right-of-way of the new highway is 200 feet in width. It crosses about 60 acres of Christello's farm land. It will be necessary to move a four-room tenant house and a barn, and to replace a dug well, which the Highway Department agrees to do. The Highway Department also agrees to construct new fences bordering the right-of-way where it crosses Christello's lands, and agrees to build an underpass under the right-of-way whereby livestock can be moved from the severed 55 acres to the acreage south of new 64 containing the improvements.

The farm is used for grazing from 50 to 100 head of livestock, and for raising hay. In addition to the farm land, a portion of 10 lots in Monte Vista Subdivision bordering on the right-of-way are being taken. The jury awarded the Christellos $21,500 as damages.

The situation of the Byars property is not so complicated. Byars raises livestock and has been in that business since 1948. His farm consists of 438 acres. All the land is in one block north of old 64, which runs in front of his improvements, but new 64 goes to the rear of the improvements and will sever about 16 acres of land on which the improvements are located from the other 422 acres. 9 and a fraction acres are being taken from Byars.

He bought 181 acres on which the improvements are located in 1948 at the cost of $25,000. Later he bought 80 acres from a Mr. Herrin for $1600, 30 acres from George Wofford for $600, 156.56 acres from a Mr. Hawkins about two months before the trial for $2664, and 40 acres from M. D. Wagnon, for $1900. Apparently he bought 487 acres for $31,764 or approximately $65 per acre, but sold a portion thereof leaving him now owning 438 acres. Of this 438 acres, about 156 acres were bought two months before the trial for a title over $17 an acre. He has been damaged by the loss of the 9 and a fraction acres, plus the severance of the 16 acres on which are located the improvements from the 422 acres. The Highway Department has agreed to build new fences bordering the right-of-way, build an underpass suitable for moving livestock from the property on which the improvements are located to the other portion, and to move whatever buildings it may be necessary to move. There was a jury verdict for Byars for damages in the sum of $25,000.

Is there substantial evidence to support the verdicts? If so, according to many, many decisions of this court the judgments must be affirmed and evidence must be viewed in the light most favorable to the appellee. On the other hand, if there is not substantial evidence to support the verdicts, the judgments must be reversed. We have reached the conclusion that there is no substantial evidence in the record to support either verdict.

There was no evidence introduced tending to prove the damages except the opinions of witnesses as to the value of the land taken and as to the market value of the properties before and after the taking. Where a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based. St. Louis Southwestern Ry. Co. v. Braswell, Administrator, 198 Ark. 143, 127 S.W.2d 637.

To completely abstract here all of the testimony in the case would unduly extent this opinion, but the witness Christello testified that he had been running from 50 to 100 head of cattle on his place, that he can not afford to run more; but gives no estimate as to the number of cattle the place will carry; says that he also cuts hay, but gives no indication of the amount of hay the place will produce or the value of the hay he hay grown; says that he has a tenant house and barn that will have to be moved (but the Highway Department has agreed to move these structures); says that he has water piped to the various pastures (but the Highway Department has agreed not to disturb the water supply); says that 2 1/2 acres of land that will border the right-of-way on the north is shaped so that the place where it joins the other lands will be only 10 feet in width (there is no showing that all the stock that could ever graze on this 2 1/2 acres could not pass through a place 10 feet in width); says he has approximately 200 acres north of the new highway (the fact is that 80 acres of this alleged 200 acres is not connected with the other portion of the farm in any manner whatever and will not be affected to any extent by the new highway; and other than this 80 acres he will have only approximately 55 acres north of the new highway); states that the place is worth $65,000 (this would be approximately $162.50 an acre), and after the taking it will be worth only $40,000 (the so-called Block A is a strip of ground 102 1/2 by 172 feet which was across the road from the Monte Vista Subdivision and connected to his 80 acres, which will be taken by the new right-of-way). He values one lot in Monte Vista Subdivision at $2000, another at $5800, and another at $5800, although he paid only $5000 for the entire 198 lots in the addition. Christello is in the insurance business and owns 1/2 interest in an office building in Fort Smith. He says that his pasture land alone is worth $1200 an acre, but does not give the number of head of stock the land will graze. He claims that the drainage will be impaired by the new right-of-way, but his testimony is not clear or convincing on that point.

W. D. Byars is a stock raiser and has been engaged in that business since 1948. 9 and a fraction acres of his land are being taken. He considers his farm worth $85,000; that it will be worth only $40,000 after the right-of-way goes though. His improvements will be on about 16 acres of ground separated from his other land by the highway right-of-way; a couple of his outbuildings will have to be moved (the Highway Department has agreed to do this); he claims there will be a drainage problem but it appears that the highway right-of-way will improve the drainage rather than impair it; he values his pasture land at $1000 an acre; however, there is no showing whatever as to any qualities of the land that would cause it to be worth such a figure; in fact, he bought 156.56 acres of his 438 acres about two months before the trial for a little over $17 per acre.

In addition to the testimony of Christello and Byars as to the alleged damages which they have suffered, Boyce Wofford who is in the produce business gave his opinion that Byars' place before the taking was worth $75,000, and after the taking...

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