Lindsey v. City of Forrest City

George Rose Smith, Justice. In 1971 the City of Forrest City, with a population of more than 12,000, made plans for the expansion and improvement of its sewer system. The project included the creation of a 160-acre oxidation pond, in which sewage would be treated with chemicals and by exposure to the air. This eminent domain proceeding was brought by the city to condemn 121.12 acres out of the appellants’ 696-acre farm, to be used as a site for part of the oxidation pond. At the trial the city offered only one valuation witness, James Montgomery, who testified that just compensation to the landowners would be $42,392, which Montgomery arrived at by valuing the 121.12 acres at $350 an acre. That was the precise amount of the jury’s verdict. For reversal the appellants contend that the trial court should have stricken Montgomery’s valuation, because he did not consider the effect of the taking upon the before and after value of the landowners’ entire farm. We agree with the appellants, that Montgomery did not use a permissible method of fixing just compensation. There is ample proof that the oxidation pond will give off an offensive odor. Moreover, health department regulations prohibit the construction of dwelling houses within 600 feet of such a pond, with the result that 72.72 acres of the landowners’ remaining property will not be available for residential use. Montgomery candidly and unequivocally admitted, upon his original cross-examination, that he had determined just compensation solely by valuing the tract being taken at $350 an acre. He said that he did not consider the rest of the 696-acre tract, “because I wasn’t appraising the other land.” When asked if he had put a value on the whole farm, he replied: “There’s no way that you could do that. . . I did not appraise highway frontage. I was not asked to appraise highway frontage.” He explained that he had not determined the value of the whole farm before the taking: “I wasn’t interested in that.” The trial judge took the landowners’ motion to strike under advisement, to allow Montgomery to be questioned further upon redirect examination. Counsel for the city tried to rehabilitate the witness’s testimony, but the effort failed. Montgomery simply had not considered the effect of the taking upon the rest of the 696-acre farm. In saying that he had indeed considered the effect of the oxidation pond he expressed the opinion that the presence of the pond would improve the farm as a whole. He was unaware of the 600-foot restriction. He insisted that the 696-acre tract was worth $350 an acre before the taking and $350 an acre afterwards. Needless to say, his method of valuation was not a proper way to fix just compensation, because the constitutional prohibition against the taking of property without just compensation “extends, not only to the property actually taken, but to the damage, if any, done to the property not taken. ” State Life Ins. Co. of Indianapolis v. Ark. State Highway Commn., 202 Ark. 12, 148 S.W. 2d 671 (1941). Thus Montgomery’s estimate was demonstrably wrong and unfair to the landowners, but it was undeniably the basis for the jury’s verdict. Although the point was not made in the trial court and is not raised in the briefs here, it was suggested at our conference that the trial judge’s ultimate conclusion was right and should be affirmed, because the landowners asked that the court “strike the testimony of Mr. James Montgomery.” It is said that the motion was properly denied, because part of the testimony was admissible. Young v. Ark. State Highway Commn., 242 Ark. 812, 415 S.W. 2d 575 (1967). The cited rule is sound in certain circumstances, but it should not control this case. When the bare motion to strike is made, with no elaboration, and the trial court simply denies it, his action should be affirmed if part of the testimony is admissible, as in Ark. Sate Highway Commn. v. Bowers, 248 Ark. 388, 451 S.W. 2d 728 (1970). But here the naked motion did not stand alone. Counsel for the landowners fully explained his objection to Montgomery’s testimony. The trial judge agreed, saying that “the statement which he made, if it stands as such, is not a proper appraisal.” The city’s attorney did not question the wording of the motion; instead, he insisted that the witness should be allowed to clarify his position upon redirect examination. The court afforded counsel that opportunity and, after Montgomery’s ineffective effort to explain his position, denied the motion to strike, on the ground that the witness’s testimony was “substantially in compliance” with the rules of evidence. In the circumstances the attorney’s objection was clearly sufficient, for it met the statutory requirement that he state the grounds for his objection and make known the action which he desired the court to take. Ark. Stat. Ann. § 27-1762 (Repl. 1962); Bell v. Kroger Co., 230 Ark. 384, 323 S.W. 2d 424 (1959). Reversed. Fogleman, J., dissents.