Ark. State Highway Comm. v. Potts

Paul Ward, Justice. This is a highway condemnation case. On July 2, 1963 the Arkansas State Highway Commission (appellant herein) filed a complaint to condemn 12.85 acres of an eighteen-acre tract of land owned hy Raymond Potts and his wife (appellees herein), as a part of the right-of-way for Interstate Highway No. 40. A trial on May 3, 1965 resulted in a jury verdict in favor of appellees in the amount of $32,250. Judgment was entered accordingly. The principal contention on behalf of appellees, in attempting to establish the value of the land taken, was that the land was located close to the town of Mayflower and was suitable for residential development. The record contains a plat of appellees’ land, showing its location with reference to the highway right-of-way. Appellant urges four principal reasons why the judgment should he reversed. One. Two witnesses on behalf of appellees testified, in effect, that they considered the value of each of the fifty one lots in arriving at the total value of the eighteen acres previous to the tailing of the right-of-way. This was objected to hy appellant. Since the purported addition had not been developed relative to streets, guttering, water mains, gas, electricity, etc., the above testimony was inadmissible. See: Arkansas State Highway Comm. v. Watkins, 229 Ark. 27 (p. 31), 313 S. W. 2d 86. However the trial court withdrew consideration of this testimony, saying: ‘ ‘ Two of the witnesses did testify that they did take lots into consideration in arriving at their appraisal. You will disregard any testimony as to value of this lot or that lot or any of the rest of the lots in the plat, but take the entire 18 acres into consideration as the highway runs across it.” Two. Some testimony was introduced on behalf of appellees, over appellant’s objection, to show the property was damaged because, as a result of the taking, it would be necessary to travel nearly a mile further to reach the town. Conceding, for the purpose of this opinion, such testimony was inadmissible, yet the alleged error was cured by the court’s instruction to the jury, saying: “You are not to consider any damages due to any restriction of access from the remaining lands to the new highway, or any damages due to a circuity of travel. ’ ’ Three. It is here insisted the court erred in refusing to strike the testimony of two witnesses because they gave no fair or reasonable basis for their testimony. We do not agree. Charley Steed did state that he gave consideration to the lots, but he also gave other reasons for his conclusions. In the first place he stated he had been in the real estate business for fifteen years and that he had known appellees’ land for thirty or forty years. Following that he stated: “In my opinion the value of Mr. Potts’ land before the taking was $45,000. In my opinion the value after the taking is $5,000.” We think the testimony as to value was admissible under our holding1 in Ark. State Highway Comm. v. Johns, 236 Ark. 585, 367 S. W. 2d 436. There we said: “An expert witness, after having established his qualifications and his familiarity with the subject of the inquiry, is ordinarily in a position to state his opinion.” Again, the trial court properly instructed the jury in this connection, saying: “If any of the opinion evidence which you have heard does not have a basis in factual matter or is speculative or conjectural, then you are to disregard it.” The record shows the witness did give several reasons for his conclusions. What we have said above applies to the testimony of the other witness. Four. Finally, it is contended there is no substantial evidence to support the jury’s verdict. What we have already said suggests the answer to this contention. There was testimony that the value of the land taken was $40,000. The jury found the value to be $32,-250 and we are unable to say that amount is not supported by substantial evidence. We have examined other assignments of error but find no merit in them. Affirmed. Harris, C. J., dissents.