Arkansas State Highway Comm'n v. Welter

Conley Byrd, Justice. On the first appeal of this case, Arkansas State Highway Commission v. Welter, 247 Ark. 23, 444 S. W. 2d 65 (1965), we reversed a $23,000 verdict because all the landowners’ witnesses had compared the values of the lots in the landowner’s paper subdivision to the sales of lots in fully developed subdivisions containing curbs, gutters and all utilities. After the date of our mandate, the landowners consummated a $50,000 sale of a one acre tract to Franks Oil Company. At the commencement of the present trial, the landowners waived all rights to severance damages. The trial court then instructed counsel for the Highway Department that the sole issue was just compensation for the parcel actually taken and that he could not refer to the fact that the landowners owned any adjacent or contiguous lands to the lands condemned or that the lands were enhanced in value as result of the highway construction. The jury returned a verdict for $6,000. The Highway Department appeal contends that the trial court erred in refusing to allow it to introduce evidence of the before and after market value of the property in litigation and also that the trial court erred in refusing to strike the testimony of appellees’ value witnesses. As far as the record here shows, the landowners, for some 9 or 10 years, had on record a paper plat of the lands involved. Welter readily admittéd that they have neither installed utilities, constructed streets nor sold any lots. Thus for practical purposes their so-called subdivision is nothing more than a paper plat or, as sometimes called in the real estate trade, a “paper tiger’’. There is a diversity of opinion among the several jurisdictions of the United States on the issue presented here. See 27 Am.. Jur. 2d Eminent Domain § 357. However, our court has consistently ruled that where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits under our constitution. See Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707 (1897); Weidemeyer v. Little Rock, 157 Ark. 5, 247 S. W. 62 (1923), and Gregg v. Sanders, 149 Ark. 15, 231 S. W. 190 (1921). The federal decisions are in accord, see Bauman v. Ross, 167 U. S. 548, 17 S. Ct. 966, 42 L. ed. 270 (1896) and McCoy v. Untion Elevated Railroad Co., 247 U. S. 354, 38 S. Ct. 504, 62 L. ed. 1156 (1917). Of course the benefits to be set off are those which are local, peculiar and special to the owner’s land, who has been required to yield a portion pro bona publico, Weidemeyer v. Little Rock, supra. It follows that under the foregoing authority, the trial court on the record before us erred in limiting the issues and excluding evidence of special benefits. While the other issue, because of the foregoing ruling, may not arise in the same context on a new trial, we point out that the trial court did not err in refusing to strike the testimony of the landowners’ witnesses. In this trial the landowners’ witnesses properly limited their comparable sales for purposes of establishing value to sales of parcels in undeveloped subdivisions. Reversed and remanded. Brown and Fogleman, JJ., concur.