Young v. Arkansas State Highway Commission, 5--4217

Decision Date05 June 1967
Docket NumberNo. 5--4217,5--4217
Citation242 Ark. 812,415 S.W.2d 575
PartiesHerman B. YOUNG et al., Appellants, v. ARKANSAS STATE HIGHWAY COMM'N, Appellee.
CourtArkansas Supreme Court

Harold Sharpe, Forrest City, and Spitzberg, Bonner, Mitchell & Hays, Little Rock, for appellants.

John R. Thompson and Philip N. Gowen, Little Rock, for appellee.

BROWN, Justice.

This is an appeal by the landowners from a jury award in an eminent domain proceeding. Appellants Herman B. Young and wife own two rectangular tracts which are traversed by Interstate 40 in Monroe County. From one of these tracts, appellee, the Highway Commission, took fee title to 42.54 acres and temporary construction easements totaling 3.27 acres. From the other tract the commission acquired fee title to 32.50 acres and a temporary easement on 1.66 acres. The jury awarded $14,000 for the first described taking and $7,000 for the second.

The landowners advance three points for reversal. These points will be numbered, italicized, and discussed in sequence.

1. The court erred in refusing to instruct on severance damages.

The landowners submitted an instruction which recited that 'the property condemned constituted only a part of the lands owned by the landowner' and that 'the landowner is entitled to just compensation for the fair market value of the land actually taken * * * and also the actual amount of compensation for the lowering, if any, of the fair market value of the remainder land * * *.' In other words, appellant sought an instruction measuring his compensation by the value of the lands taken plus damages to the remainder.

Many cases could be cited which set out our measure of damages in partial- taking cases. It has long been the difference between the market value of the whole tract before the taking, and the market value of that part which remains after the taking, less any enhancement peculiar to the lands. St. Louis, Arkansas and Texas R.R. v. Anderson, 39 Ark. 167 (1882); Myers v. Arkansas State Highway Comm'n, 238 Ark. 734, 384 S.W.2d 258 (1964). In the case at bar the trial court gave such an instruction without objection.

Three alternative formulas are recognized for measuring just compensation in partial-taking cases: (i) The value of the part taken rule; (ii) Value of the part taken plus damages to the remainder rule; and, (iii) The before and after value rule. One authority contends the last method 'more easily skirts the danger of double counting of damages and comes closer to a true approximation of the actual damage suffered by the owner.' 1 Orgel, Valuation Under the Law of Eminent Domain, § 48--64 (2d Ed., 1953). The distinction between the second and third formulas is narrow, but the important point here is that they are alternatives. Therefore, it would be inappropriate to instruct the jury as to both formulas, as requested by appellants. This does not mean that evidence of the value of the lands taken plus damages to the remainder is not admissible. In fact, it is appropriately considered by appraisers as two of the many guides for determining 'before and after values.' For example, all the appraisers in this case followed that procedure. All of the value witnesses diminished the value of the lands remaining because of severance.

A number of our cases point out that in a partial taking the landowner is entitled to the value of the lands taken, plus damages to lands not taken. Clark County v. Mitchell, 223 Ark. 404, 266 S.W.2d 831 (1954); Ross v. Clark County, 185 Ark. 1, 45 S.W.2d 31 (1932); Hempstead County v. Huddleston, 182 Ark. 276, 31 S.W.2d 300 (1930). In Ross, the court in fact instructed the jury on that criteria, doubtless because of the very narrow distinction between that rule and the before and after rule. Whether it is error to ever use, in an instruction, the criteria in Ross is not before us. We do, however, hold in the case here that it was proper for the trial court to refuse to instruct on both bases of recovery.

Finally on this point, appellants contend that they were 'prohibited from presenting to the jury the explanation of the law' as reflected by their proffered instruction. We know of no reason why counsel could not present to the jury a re sume of severance damages which the many witnesses testified they used in arriving at their 'before and after' values. The standard instruction given by the court, without objection, on full compensation, covered every admissible element of damage, of which severance was only one.

2. A witness may not express an opinion on the fair market value of property if the basis for that opinion is a sale of that property itself.

Witness H. K. McMurrough qualified as an expert appraiser and testified for the commission. In discussing comparable sales he gave the price paid by the Youngs for the subject property. That...

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20 cases
  • Lindsey v. Forrest City, 75--345
    • United States
    • Arkansas Supreme Court
    • May 17, 1976
    ...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 ......
  • Arkansas Power & Light Co. v. Jennings, 75--141
    • United States
    • Arkansas Supreme Court
    • December 1, 1975
    ...135, 126 S.W. 83; 26 L.R.A.,N.S., 1111; Pine Bluff & W. Ry. Co. v. Kelly, 78 Ark. 83, 93 S.W. 562. See also Young v. Arkansas State Highway Commission, 242 Ark. 812, 415 S.W.2d 575; Arkansas State Highway Commission v. Morris, 244 Ark. 1152, 429 S.W.2d The judgment is affirmed. 1 We do not ......
  • Property Owners Imp. Dist. No. 247 of Pulaski County v. Williford
    • United States
    • Arkansas Court of Appeals
    • December 23, 1992
    ...different versions of the same rule; they offer "alternative formulas" to arrive at just compensation. See Young v. Arkansas State Highway Comm'n, 242 Ark. 812, 415 S.W.2d 575 (1967); Arkansas State Highway Comm'n v. Morris, 244 Ark. 1152, 1155, 429 S.W.2d 114, 116 (1968) (Brown, J., concur......
  • Arkansas State Highway Commission v. Darling
    • United States
    • Arkansas Supreme Court
    • November 6, 1967 the same effect. This Court has many times approved this kind of testimony. For a recent case see Young et al. v. Ark. State Highway Commission, 242 Ark. 812, 415 S.W.2d 575. We have also many times held that the owner of property has the right to give his opinion as to the value of 'The......
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