City of Springdale v. Keicher

Paul Ward, Justice. This is a condemnation suit brought by the City of Springdale to secure easements for the construction of a sewer line. On February 2, 1964 the City (appellant) filed a complaint in circuit court against Homer and Eunice Keicher (appellees) to procure a temporary easement (over appellees’ land) fifty feet wide and approximately 1,000 feet long to be used while constructing the sewer line. Appellant also sought a permanent easement (over said land) fifteen feet wide and approximately 1,600 feet long where the line was to be placed. Appellant deposited $150 in the registry of the court to cover any damages to appellee for the taking and asked for the right of immediate entry for construction purposes. On the same day the court entered an Order giving appellant the right of immediate entry. Thereupon appellant began construction operations. On November 9, 1966 appellees filed an Answer and (hunter-Claim. In the Answer appellees stated they owned the land, and that they should recover the sum of $20,000 “for the taking of said lands and the damages caused to the remainder of their lands”. In their cross-complaint appellees sought. $10,000 damages caused by odors from a sewage disposal system which appellant had erected and maintained adjacent to their lands during the past three years. In reply, appellant said any alleged damages asked for in the Counter-Claim was barred by the statute of limitations, and denied all allegations in the answer. A jury trial on November 28, 1966 resulted in a verdict in favor of appellees in the amount of $7,000 for which judgment was entered. On appeal appellant designates only one point, but argues two general grounds for a reversal; One, there is no “substantial evidence upon which to base the award of damages”, and; Two, incompetent testimony was admitted in evidence. One. By-passing for the moment the matter of alleged incompetent testimony, we have concluded there is substantial evidence to support the $7,000 judgment. Homer Keicher, appellee, testified: I am the owner of the land, consisting of 192 acres, am seventy three years old, was born on the land and have lived there ever since; I used the land for farming — such as melons and truck crops and raising cattle.; I know what property has sold for in that neighborhood; In my opinion the value of the land before the sewer line was put in was $70,000 and after that it was worth $50,000. He stated that due to the taking he had to repair a lot of fences to keep cattle “and I can’t even do that”, and the odor from the sewer is awful had. Mrs. Keicher, the wife of Homer, has lived on the land for twenty-two years, testified: My family owns the property in the neighborhood, and I have an opinion as to the value of our farm. [Her opinion was the same as her husband.] She further stated that before the sewer line was put in we had no trouble with odors, hut now when the wind is from the north “it is just unbearable”, and she could easily tell the difference between the sewer line and the 'City dump. Dale Killian testified: I have been a real estate broker in Washington County for fourteen years; have handled property “well over the entire county and am familiar with the value of real estate, the rural type, and of the urban type”; I know the land here in question and have inspected it; in my opinion ‘ ‘ the value of the subject farm prior to its taking was $55,000 . . . the value of the remainder of the farm after the taking by City is $45,000”. King Wheeler, who has been a real estate broker in Washington County for twenty-four years and says he has been acquainted with the land in question all that time, testified, in effect, that the land was worth $54,000 before the taking and $41,000 after the taking. The above testimony was presented to the jury under instructions of the court to which appellant made no objection, and it was, of course, up to the jury to believe or disbelieve any part thereof. We are therefore unable to say there was no substantial evidence to support the jury’s verdict for $7,000. In support of this conclusion we call attention to certain pertinent decisions of this Court. In Housing Authority of Little Rock, Arkansas v. Winston, 226 Ark. 1037, 295 S. W. 2d 621, we said that a non-expert witness who is acquainted with the land in question and says he knows the market value is competent to express an opinion as to its market value. In Ark. State Hwy. Comm. v. Drennen, 241 Ark. 94, 406 S. W. 2d 327, we held that a land owner could give his opinion as to the before and after value of his land. See also: Ark. State. Highway Comm. v. Johns, 236 Ark. 585, 367 S. W. 2d 436. Two. We now examine.appellant’s contention that the case should be reversed because inadmissible testimony was erroneously introduced. (a) Appellant moved to strike “the entire testimony” of Dave Killian because it “involves a lot of elements that are not properly considered in this suit”. The motion was overruled, and, we think, properly so. It is true that references were made by Killian (and other witnesses) to odors from sewer installations other than the pipe line — this pursuant to appellees’ cross-complaint. However, the cróss-complaint was dismissed by the trial court. Also, in overruling appellant’s motion the court sustained it in part by striking testimony relating to the City dump and the land fill. Appellant did not object to this ruling. (b) Appellant moved to strike the “entire testimony” of Wheeler. The trial court then made this statement: “He can testify as to the value of this farm but if you are going to bring in an element of damage from odor, I will sustain it as to that part” because “he didn’t know there was any there before or not”. No other objection was made by appellant. At any rate we think appellant failed to show the witness had no reasonable basis for his opinion as he had formerly stated and as modified. In the Johns, case, supra, 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.” # # • # “It was incumbent upon counsel for the appellant to support their motion to strike by showing that the land owners’ expert witnesses had no reasonable basis for their opinions.” In view of the fact that appellant did not object to any of the instructions given by the court, we hold a fact question was presented to the jury as to the amount of damages. We also find no merit in appellant’s contention, backed by testimony of its witnesses, that the sewer line was a benefit, and not a detriment, to appellees’ property. There was, however, no showing by appellant that such benefit (if any) was peculiar to appellees and did not likewise benefit other property as well. McMahan v. Carroll County, 238 Ark. 812, 384 S. W. 2d 488, and Martin v. Raulston, Comity Judge, 239 Ark. 769, 394 S. W. 2d 133. Affirmed. Brown, Fogleman and Jones, JJ, dissent.