Arkansas State Highway Commission v. Witkowski

Conley Byrd, Justice. The jury awarded compensation in this eminent domain proceeding in accordance with the testimony of C. V. Barnes, an expert witness called on behalf of appellees M. E. Witkowski, et ux. For reversal of the $155,-000 judgment the Arkansas State Highway Commission makes the following contentions: “I. The court erred in denying appellant’s motion to strike the before value testimony of C. V. Barnes, expert witness for the landowners. II. The court erred in allowing appellees to establish in the presence of the jury that an appraiser who had made an appraisal of the subject property for appellant was not called to testify.” POINT I. The record shows that appellant condemned 79.35 acres which ran diagonally across appellees’ ownership of 269 acres. C. V. Barnes testified for the landowner arriving at a total before valuation of $363,000 and an after valuation of $208,000. After testifying that he placed an assemblage value on the property, the record on direct examination shows: “Q. What is assemblage value, explain that to the jury, please, sir? A. Well, assemblage value can be made up of a number of things. First, assemblage primarily talks about size of Two Hundred Sixty Nine Acre parcel of ground such as the Witkowskis had is more flexible and conducive to development than like say a forty acre tract of ground because there are certain fixed expenses that have to be written off in any development and the larger the development, the more you have to write the fixed expenses off of. Also, when you have a development large enough to take advantage of multi-family and commercial use, why that goes into the element of assemblage. Q,. So that . . . A. In a Forty acre tract, it would be very, very hard to get commercial and multi-family and single family all on one tract of ground, so that when you get a large acreage that comprised of seven forty acre tracts, so to speak, you do have this capability. Q. So the size of the property in other words, the size of this particular piece of property does increase its value in your opinion? A. In my opinion, yes, sir.” On direct in showing how he arrived at his before value the witness testified as follows: “Q. All right, sir, so in looking at the trend and using that as a factor in determining the fair market value of raw land in this area, particularly Mr. Witkowski’s what did you come up with as to value per acre? A. After making all of my studies and analysis, I came to the conclusion that Mr. Witkowski’s property on the raw land basis and in let’s say forty acre segments, more or less, had a value of a Thousand Dollars per acre. Q. And you add to that, I believe you have already testified, you add to that . . . A. Well, I didn’t ... let me back up and put it this way. I valued Mr. Witkowski’s property before the taking at Thirteen Hundred and Fifty Dollars an acre, and as I just said, I felt like based on my study of the sales and there were no sales out there of Two Hundred and Sixty Nine acres, hunted all over that end of the world to find anything comparable in size, most of the market data was of the sizes that we have talked about, so I came to the conclusion that in small parcels or smaller parcels that the value of the property was a Thousand Dollars and that the fact that over a period of some four or five years, he had put this Two Hundred Sixty Nine acres together into one parcel, thereby increasing its potential and adaptability and all kinds of things, that it had an assemblage factor of Two Hundred Dollars per acre. Q. Over and above the Thousand? A. Over and above the Thousand, and that the improvements that had been constructed on the property made a contribution of a Hundred and Fifty Dollars per acre to the property and that’s the way I got my Thirteen Hundred and Fifty Dollars per acre. Q. Or Three Hundred and Sixty Three Thousand Dollars before market value. A. That’s correct.” On cross-examination the witness testified that the property remaining had a value of $1100 per acre. With reference to the assemblage value the record shows only the following: “Q. I want to ask you about that assemblage business. How did you arrive at that Two Hundred Dollars an acre assemblage value? A. Well, based on judgment and experience, I would say, and based on the fact that the, for example, let’s just talk about the three sales that Mr. Witkowski . . . Q. I want to talk about them, go ahead. A. One of the sales, of course, the highest price sale was for Eight Hundred and some odd dollars per acre and it had access. The other two sales, one at Five Hundred and the other at Six Hundred and Fifty Dollars, if I remember my figures about right, didn’t have access and so that right there would indicate to me that property with access was worth more than that without and when the last two sales, for example, were purchased, that increased their value because they then had the same access as all the rest of them, so that’s one of the factors that go to make up the assemblage value. Now, another thing is that when you talk about a small tract of ground like the Curtis sale which was the forty acre tract, the only potential for it would be . . . well, let’s put it this way, the potential for a forty acre tract is not as great as Two Hundred and Sixty Nine acres, when you get to Two Hundred and Sixty Nine acres, you’ve got a big enough unit to start planning and relating commercial and multi-family uses on the property where you cannot do that on smaller tracts and thus commercial potential created by putting smaller pieces together into a big block enhances its value.” The witness’ definition of “assemblage” corresponds generally to the definition of “plottage” as defined in Black’s Law Dictionary 4th Ed. — i.e., “A term used in appraising land values and particularly in eminent domain proceedings, to designate the additional value given to city lots by the fact that they are contiguous which enables the owner to utilize them as large blocks of land.” However, this is a separate and distinct item from that which occurs when access is given to a landlocked tract because in the latter instance the enhancement in value accrues only to the landlocked portion whereas the enhancement from “assemblage” or “plottage” is to the whole property. We readily recognize that “assemblage” or “plottage” is an element that may be taken into consideration in arriving at the valuation of property but like all other elements to which a damage factor is assigned an expert witness on cross-examination must demonstrate that he has some reasonable basis for assigning a particular amount of damage. In this instance the $200 figure comes to 20% of the value of the land and if we should accept his answer that the $200 figure is based “. . . on judgment and experience” then we know of no rationale that would prevent the same witness from using a $2000 figure. However, at the outset we are confronted with the problem that the only motion to strike was made at the close of the direct examination of the witness. Of course, at that time the trial court properly refused the motion to strike, Ark. State Highway Comm. v. Johns, 236 Ark. 585, 367 S.W. 2d 436 (1963). The motion to strike was not renewed at the end of the cross-examination. Consequently, appellant is not in a position to claim error on the part of the trial court, Mo-Pac R.R. v. McDaniel, 252 Ark. 586, 483 S.W. 2d 569 (1972). In its argument appellant proceeds on the theory that there is no substantial evidence to support the award but it cannot avail on this issue because at least one other expert arrived at a difference between a before and after value of $164,000 and it is not contended that he had no basis for his opinion. POINT II. In accordance with our decision in Arkansas State Highway Commission v. Phillips, 252 Ark. 206, 478 S.W. 2d 27 (1972), the landowners submitted evidence to the jury to show that the Highway Commission had used a number of appraisers to appraise the property in question that were not called to testify. Admittedly this was done to raise the inference that the testimony of those witnesses would have been unfavorable to the condemnor. The Highway Commission recognizes the binding effect of the Phillips' case, supra, but requests that we reconsider the issue. While we cannot say that the trial court erred in following the Phillips ’ case, supra, we note that it was not a unanimous decision and that it is decidedly contrary to a majority of the other jurisdictions that have considered the issue — see Boyles v. Houston Lighting and Power Company, 464 S.W. 2d 359 (Tex. 1971); Lutsko v. Commonwealth Department of Transp., 13 Pa. Comwlth. 150, 318 A. 2d 361 (1974); and State Ex rel State Highway Com’n v. Texaco Inc., 502 S.W. 2d 284 (Mo. 1973). For cases involving related issues see Logan v. Chatham County, 113 Ga. App. 491, 148 S.E. 2d 471 (1966) and Whitcomb v. Whitcomb, 267 S.W. 2d 400 (Ky. 1954). Consequently, with respect to all cases being tried after the effective date of this opinion, we give the bench and bar notice that the issue involved in the Phillips’ case, supra, will be reconsidered. Affirmed. Fogleman and Holt, JJ., concur.