Minkowitz v. City of West Memphis

Paul Ward, Justice. Appellants’ land, which was located at the end of an airport runway, was condemned to establish a clear zone or avigation easement. A jury trial resulted in a verdict and judgment, giving each appellant the sum of $2,500 as damages. On appeal appellants rely on only one point for a reversal — the trial court erroneously instructed the jury relative to the measure of damages. Below is set out a summary of the pertinent facts involved. The airstrip in question lies just west of the City of West Memphis. It runs north and south, with the north end abutting or near Highway No. 70 which runs east and west. Appellants, Louis Minkowitz and Louis Slepian (d/b/a United Iron and Metal Company) each own a ten acre parcel of land involved here. Each parcel is one-half mile long, and the south end abuts the north side of said Highway No. 70 — directly north of the north end of said airport runway. For several years appellants have operated a business on said strips of land. On September 17, 1964 the City of West Memphis enacted Ordinance No. 467 which established a clear zone or avigation easement across and over a portion of appellants’ land. About a year later appellants filed a complaint against the City in circuit court to recover damages for the unlawful taking of their property. The City filed a counter-claim asking that the property be condemned for “a clear zone or avigation easement,” and asking that the compensation due appellants be determined by a jury. At a pre-trial conference the parties agreed: (a) that the City was entitled to an avigation easement, and (b) that the only issue to be determined by the jury was the compensation to which appellants were entitled. The jury trial which ensued resulted in a judgment against the Citv in favor of each appellant in the amount of $2,500. For a reversal, it is the sole contention of appellants that it was error for the trial court to give instruction No.- 2 which, in material part, reads: :“Now, you will find for the plaintiffs in some amount that you think will compensate them for the property rights taken. In finding for the plaintiffs, Louis Minkowitz and Louis Slepian, against the City of West Memphis, you must fix the amount of money which will reasonably and fairly compensate them, each of them, for the difference in the value of the property involved immediately before and immediately after the restrictions placed or imposed on the property and which limits the height of buildings or ■:v:-other objects, and the restrictions imposed on the property under the terms of the ordinance and by the taking of a clear zone approach or avigation easement. ’ ’ Appellants sole objection to the above instruction is that it does not allow the jury to award them the full value of the land included in the easement. It is our conclusion that the trial court was correct in giving the instruction. It is not denied that the City did not, under the ordinance or the judgment, take a fee in the land subjected to the easement. The fee still remains in appellants. The great weight of the evidence is that said land is still usable to a large degree. One witness testified that each parcel had not been damaged more than $1,-000, and another witness thought there had been no damage. The extent of damage is, of course, not an issue here. The ordinance permits the use of the land by the landowners by permitting buildings and trees of heights not greater than from 25 to 75 feet — depending on the distance from the runway. In situations such as obtain here the well established rule appears to be that the land owner is entitled to recover the difference in value of the land before and after the imposition of the restrictions. See: Ackerman v. Port of Seattle, 55 Wash. 2 400, 348 P 2 664; Hopkins v. United States, 17 3 F. Supp. 245. As we understand appellants’ position, they do not question the above cited authorities because, they say, our own decisions are to the contrary. In support they rely on Baucum v. Arkansas Power & Light Co., 179 Ark. 154, 15 S. W. 2d 399; Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S. W. 2d 684, and; State ex. rel. Publicity & Parks Commission v. Earl, 233 Ark. 348, 345 S. W. 2d 20. In our opinion the above decisions are not in conflict with the result we have reached, since they are distinguishable on the facts from the case here under consideration. Here, as pointed out previously, appellants’ entire use of the land has not been taken, nor can it ever be taken without remuneration. This is not the situation in the cited cases. In the Baucum case the court pointed out "... that the company acquired by condemnation proceedings the power to make such use of right-of-way as its future needs required . ...” In the Morris case we made the same statement quoted above. In the Earl case, which also involved the taking of land near the landing strip for airplanes, there appears this distinguishing sentence: “The court” — (sitting as a jury)— “concluded that appellants’ use of the said strip destroyed permanently all use and benefit to appellees, and therefore appellees should be paid full value.” (Emphasis ours.) Affirmed. McFaddin, J., dissents.