Arkansas Louisiana Gas Co. v. Howell

Conley Byrd, Justice. From a jury award of $4,278 as the just compensation due appellees Lillian and Nettie Howell for the taking of a 2.5-acre tract along the east side of 119 acres owned by them adjacent to the city of Paragould, appellant Arkansas Louisiana Gas Company brings this appeal, alleging as reversible error the following points: I. The court erred in admitting unrecorded plats into evidence, and other instruments referring to an unrecorded plat. II. The court erred in not permitting a continuance on appellant’s plea of surprise, or permitting the pleadings to be amended to conform with the proof. III. The court erred by permitting speculative arbitrary and. fictitious testimony with reference to damage, and by failing to strike the testimony of witness Dennis T. Jarrett and Johnny A. Knight except for lands within right-of-way. IV. The court instructed the jury erroneously as to the measure of damage to real property.. V. The verdict is excessive. I. On the issue of the unrecorded plat, the testimony showed that appellees’ 119 acres was south of and adjacent to the city of Paragould. A portion of the property was actually within the city limits. The northeast corner of their property abutted the southernmost terminus of Seventh Street, a north-south through street. Ap-pellees contended that since the 2.5-acre easement took the portion of the property abutting the southernmost terminus of Seventh Street, a subdivider would have to make a 24-foot jog in Seventh Street to reach the property, and that as a result of this jog or access the 39.29 acres ready for residential subdivision was damaged. A portion of the property 241.2 feet east and west by 135 feet north and south had been sold prior to the eminent domain action by a metes and bounds description with this addendum: ‘ • . . . which property is also described as Lots 1, 2 and 3 of ‘Block A of Howell’s Second Addition according to an unrecorded plat of Howell’s Second Addition, which Plat was prepared by Knight Laird and dated December, 1963.” The unrecorded plat introduced into evidence is totally irrelevant to any of the issues involved. All the witnesses recognized that the portion of the property covered by the plat was suitable and ready for residential subdivision. All testimony treated the area on an acreage basis for valuation purposes. Appellant contends that under Arkansas State Highway Comm’n v. Parks, 240, Ark. 719, 401 S.W. 2d 732 (1966), the introduction of the unrecorded plat constituted reversible error. With this we are unable to agree, for the record fails to show how or by what means or even innuendo the plat was used to measure the property owners’ damages. Since appellant’s own witnesses stated that the highest and best nse of the land included in the plat was for residential subdivision, and no attempt was made to evaluate damages on a per lot basis instead of a raw acreage basis, we can find no prejudice in the admission of the unrecorded plat and consequently hold the admission thereof to be harmless error. II. On the motion for continuance and the motion to amend the pleadings to conform to the proof, the record shows that the trial began on March 16, 1967, and that the testimony was concluded at 4:25 p. m., whereupon the court excused the jury until the next morning at 9:30. When court reconvened the next dav, appellant made a motion for continuance to give it time to locate its franchise agreement with the city of Paragould, and a motion to amend the pleadings to conform to the proof, whereby appellant would release from the eminent domain action a portion of tbe property on which the transmission line had not been constructed. Of course both motions were addressed to the sound discretion of the trial court, Norton & Wheeler Stave Co. v. Wright, 194 Ark. 115. 106 S.W. 2d 178 (1937), and Ark. Stat. Ann § 27-1160 (Repl. 1962), and we are unable to find any abuse of such discretion here. III. Appellant here contends that there is no substantial or proper evidence to sustain the damages assessed to the before and after value of the 39.29-acre tract. In particular, it stresses that witness Jarrett took 5 per cent from the before value to arrive at the after value. In this connection there is substantial evidence from, which the jury could find that the access to the property had been impaired, and on the whole record we are unable to say that there was no reasonable basis for the witness’s opinion as to the damages he assigned to the tract. The record shows no evidence of comparable sales with a similar impaired access. IY. The objection here is to the court’s instruction to the jury that the landowners were entitled to recover for the full market value of the 2.5 acres of land within the easement and in addition to recover damages, if any, to the remaining lands caused by the taking. In Arkansas Louisiana Gas Co. v. Burkley, 242 Ark. 662, 416. S. W. 2d 263 (1967), we pointed out that a corporation authorized to condemn land under our Constitution (article 12, § 9) is not entitled to deduct benefits to the landowner from the award to be given for the taking. Consequently, we hold that, when a private corporation takes property through the process of eminent domain, damages are properly awarded on the basis of the full fair market value for the easement taken, plus any damage occurring to the remainder of the property. Therefore it follows that the instruction of the court was proper. V. It is contended that the jury’s award jwas excessive. However, there is little discrepancy between the market values per acre for the 2.5-acre easement testified to by appellant’s witnesses and those of the landowners. Actually, this argument gets hack to the issue of whether or not the jog in the road constituted an impairment of the access, hut as we have already indicated, this was an issue for the jury and we are unwilling to say that the verdict is excessive. Affirmed. Harris, C. J., and BrowN, J., dissent. FoglemaN, J., disqualified.