{ "id": 6139583, "name": "PROPERTY OWNERS IMPROVEMENT DISTRICT NO. 247 OF PULASKI COUNTY, ARKANSAS v. W. Douglas WILLIFORD, Willis E. and Juanita Starks, Thomas C. and Peggy Joyce Starks, Ronald Reed Hopper and Diana R. Griffin Hopper", "name_abbreviation": "Property Owners Improvement District No. 247 of Pulaski County v. Williford", "decision_date": "1992-12-23", "docket_number": "CA 91-369", "first_page": "172", "last_page": "190", "citations": [ { "type": "official", "cite": "40 Ark. App. 172" }, { "type": "parallel", "cite": "843 S.W.2d 862" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 27-67-312", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "300 Ark. 454", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886761 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "462" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ark/300/0454-01" ] }, { "cite": "298 Ark. 78", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889919 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "90" }, { "page": "931" } ], "opinion_index": 0, "case_paths": [ "/ark/298/0078-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-64-110", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "265 Ark. 417", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664840 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ark/265/0417-01" ] }, { "cite": "468 S.W.2d 102", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10147304, 1636813 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/sw2d/468/0102-01", "/ark/250/1016-01" ] }, { "cite": "250 Ark. 1016", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636813 ], "year": 1971, "pin_cites": [ { "page": "1020" } ], "opinion_index": 0, "case_paths": [ "/ark/250/1016-01" ] }, { "cite": "243 Ark. 832", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724494 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "833" } ], "opinion_index": 0, "case_paths": [ "/ark/243/0832-01" ] }, { "cite": "44 Ark. 258", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893405 ], "weight": 2, "year": 1884, "pin_cites": [ { "page": "264", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark/44/0258-01" ] }, { "cite": "268 Ark. 839", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715489 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0839-01" ] }, { "cite": "257 Ark. 117", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718019 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/257/0117-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 18-15-1201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 14-93-113", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 14-93-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "10 Ark. App. 415", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143052 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/10/0415-01" ] }, { "cite": "244 Ark. 86", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717892 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ark/244/0086-01" ] }, { "cite": "15 Ark. App. 184", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140432 ], "weight": 6, "year": 1985, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ark-app/15/0184-01" ] }, { "cite": "233 Ark. 844", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691634 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "849" } ], "opinion_index": 0, "case_paths": [ "/ark/233/0844-01" ] }, { "cite": "39 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898655 ], "year": 1882, "opinion_index": 1, "case_paths": [ "/ark/39/0167-01" ] }, { "cite": "223 Ark. 404", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1650205 ], "weight": 2, "year": 1954, "opinion_index": 1, "case_paths": [ "/ark/223/0404-01" ] }, { "cite": "248 Ark. 1207", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1597551 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/ark/248/1207-01" ] }, { "cite": "250 Ark. 990", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636860 ], "weight": 2, "year": 1971, "opinion_index": 1, "case_paths": [ "/ark/250/0990-01" ] }, { "cite": "250 Ark. 1083", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636881 ], "weight": 2, "year": 1971, "opinion_index": 1, "case_paths": [ "/ark/250/1083-01" ] }, { "cite": "244 Ark. 1152", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725761 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "1155", "parenthetical": "Brown, J., concurring" }, { "page": "116", "parenthetical": "Brown, J., concurring" } ], "opinion_index": 1, "case_paths": [ "/ark/244/1152-01" ] }, { "cite": "242 Ark. 812", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723941 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/ark/242/0812-01" ] }, { "cite": "33 Or. App. 375", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2139912 ], "weight": 2, "year": 1978, "pin_cites": [ { "parenthetical": "\"Either party may provide evidence of factors which contribute to an assessment of just compensation, but neither has the burden of proof'" }, { "parenthetical": "\"Either party may provide evidence of factors which contribute to an assessment of just compensation, but neither has the burden of proof'" } ], "opinion_index": 1, "case_paths": [ "/or-app/33/0375-01" ] }, { "cite": "225 A.2d 895", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1967, "pin_cites": [ { "parenthetical": "instructing jury that condemnees had burden of proving that their damages were greater than damages testified to by condemnor usurped power and function of jury" } ], "opinion_index": 1 }, { "cite": "424 Pa. 87", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1904983 ], "year": 1967, "pin_cites": [ { "parenthetical": "instructing jury that condemnees had burden of proving that their damages were greater than damages testified to by condemnor usurped power and function of jury" } ], "opinion_index": 1, "case_paths": [ "/pa/424/0087-01" ] }, { "cite": "131 N.E.2d 397", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "pin_cites": [ { "parenthetical": "jury acts as an assessing or appraising board, determining the fair-market value of the property from all the evidence submitted" } ], "opinion_index": 1 }, { "cite": "164 Ohio St. 377", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 1720179 ], "year": 1955, "pin_cites": [ { "parenthetical": "jury acts as an assessing or appraising board, determining the fair-market value of the property from all the evidence submitted" } ], "opinion_index": 1, "case_paths": [ "/ohio-st/164/0377-01" ] }, { "cite": "124 N.E.2d 424", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "393 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "No ultimate risk of non-persuasion on the issue of just compensation in a condemnation proceeding" } ], "opinion_index": 1 }, { "cite": "240 Va. 66", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2108652 ], "year": 1990, "pin_cites": [ { "parenthetical": "No ultimate risk of non-persuasion on the issue of just compensation in a condemnation proceeding" } ], "opinion_index": 1, "case_paths": [ "/va/240/0066-01" ] }, { "cite": "82 Md. App. 137", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 4381188 ], "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "\"Condemnation cases are fundamentally different from other kinds of cases where value is concerned.\"" }, { "parenthetical": "\"Condemnation cases are fundamentally different from other kinds of cases where value is concerned.\"" } ], "opinion_index": 1, "case_paths": [ "/md-app/82/0137-01" ] }, { "cite": "475 P.2d 553", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10564936 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/p2d/475/0553-01" ] }, { "cite": "127 N.E. 411", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1920, "opinion_index": 1 }, { "cite": "101 Ohio St. 1", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 960855 ], "year": 1920, "opinion_index": 1, "case_paths": [ "/ohio-st/101/0001-01" ] }, { "cite": "5 S.W. 792", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1887, "opinion_index": 1 }, { "cite": "49 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1309748 ], "year": 1887, "opinion_index": 1, "case_paths": [ "/ark/49/0381-01" ] }, { "cite": "26 Ark. App. 42", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136653 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark-app/26/0042-01" ] }, { "cite": "468 S.W.2d 102", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10147304, 1636813 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/sw2d/468/0102-01", "/ark/250/1016-01" ] }, { "cite": "250 Ark. 1016", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636813 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/ark/250/1016-01" ] }, { "cite": "243 Ark. 832", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724494 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/ark/243/0832-01" ] }, { "cite": "44 Ark. 258", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893405 ], "weight": 2, "year": 1884, "pin_cites": [ { "page": "264" } ], "opinion_index": 1, "case_paths": [ "/ark/44/0258-01" ] }, { "cite": "15 Ark. App. 184", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140432 ], "weight": 2, "year": 1985, "opinion_index": 1, "case_paths": [ "/ark-app/15/0184-01" ] } ], "analysis": { "cardinality": 1327, "char_count": 37179, "ocr_confidence": 0.917, "pagerank": { "raw": 1.5308364494704435e-07, "percentile": 0.6710713636200412 }, "sha256": "df4d234ebd739fa58171a92b1178d64afeba4855893619fb042d353d23104f9e", "simhash": "1:7a483db60968f7c2", "word_count": 6263 }, "last_updated": "2023-07-14T22:00:57.058600+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft, C.J., concurs in the result.", "Jennings, J., dissents.", "Rogers, J., joins in the dissent." ], "parties": [ "PROPERTY OWNERS IMPROVEMENT DISTRICT NO. 247 OF PULASKI COUNTY, ARKANSAS v. W. Douglas WILLIFORD, Willis E. and Juanita Starks, Thomas C. and Peggy Joyce Starks, Ronald Reed Hopper and Diana R. Griffin Hopper" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nThe appellant is an improvement district which was formed for the purpose of building a sewer system to serve certain lands in Pulaski County. It filed suit against the appellees to condemn the permanent and temporary easements alleged to be necessary to construct and maintain the system. A total of .7558 acres was taken for the permanent easement and 1.8213 acres for the temporary construction easement.\nThere are five tracts of land owned separately by the appellees. The tracts vary in size from about 8 to slightly less than 2 acres. Appellees own a total of 17 acres, with more than one-half of it located within the Rock Creek \u201cfloodway\u201d as designated by the Federal Emergency Management Agency. Other portions are located within the designated \u201cfloodplain.\u201d The property is effectively severed by the creek. The portion north of the creek fronts on Kanis Road. Access to the portion south of the creek is severely limited.\nAppellant deposited $1050 as estimated just compensation for the property condemned. At trial the appellant\u2019s witnesses testified that the market value of the appellees\u2019 property before the taking would range from $1000 per acre to about 5300 per acre. The testimony of the appellees\u2019 witnesses placed that value in a range of $340,000 to $420,000 per acre. The jury returned a verdict for the appellees in a total amount of $82,768.30. For reversal, the appellant argues four points. We discuss each point separately but not necessarily in the same sequence argued by appellant.\nI.\nThe first point we discuss is appellant\u2019s contention that \u201cthe trial court should have struck the landowners\u2019 value testimony.\u201d\nThe record shows that this case was tried two times. In the first trial the court granted the improvement district\u2019s motion for directed verdict in the amount of its deposit. This resulted from the court\u2019s granting the district\u2019s motion to exclude the testimony of the landowners\u2019 expert witnesses on the basis that their testimony was not admissible on the issue of the amount due for just compensation to the landowners. Afterwards, the court granted the landowners\u2019 motion for new trial. This appeal is from the judgment entered after the second trial. The point now under discussion was raised by appellant\u2019s motion to strike the testimony of the landowners\u2019 two \u201cexpert\u201d witnesses who had also testified in the first trial.\nOne of the expert witnesses was John W. \u201cJay\u201d DeHaven. The appellant argues the court should have struck Mr. DeHaven\u2019s testimony because he did not have a reasonable basis for his testimony. We do not think it would serve any purpose to discuss the testimony of this witness in detail. Suffice it to say that the motion to strike presented a matter largely within the sound discretion of the trial judge. Arkansas State Highway Commission v. Kennedy, 233 Ark. 844, 849, 349 S.W.2d 133 (1961). See also Arkansas Louisiana Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985). We cannot say that the trial judge erred in refusing to strike Mr. DeHaven\u2019s testimony.\nThe landowners\u2019 other expert witness was Mary Kay Peyton. We discuss her testimony in some detail in order to explain our holding on this point and because her testimony is also involved in our consideration of appellant\u2019s third point for reversal.\nMs. Peyton was an employee of the Maumelle Company. Mr. DeHaven was president of that company. Both he and Ms. Peyton testified that the highest and best use of the appellees\u2019 property was for commercial development. Ms. Peyton was not an appraiser but was a licensed real estate broker and was general sales manager at the Maumelle Company, which was a land development and marketing company. This case was Ms. Pey-ton\u2019s first time to give an opinion on value to a jury in a condemnation case.\nAt the first trial Ms. Peyton\u2019s testimony was struck because she \u201cfigured\u201d the value of the entire property owned by the appellees at $2.50 per square foot. She then used that figure to determine the value of the portion taken for easement purposes by the appellant. She testified: \u201cBut I did not determine separately the fair market value of the actual easement itself, independent of the rest of the property.\u201d In sustaining the objection to Ms. Peyton\u2019s testimony in the first case, the judge said, \u201cUnder Ms. Peyton\u2019s method of valuation, one could pick any spot of land out of the entire tract and Ms. Peyton would value it at $2.50 per square foot. And yet, it is obvious that some portions of the tract are worth more than that, some less.\u201d\nAt the second trial, Ms Peyton evaluated the appellees\u2019 land separately. Two tracts were still given the value of $2.50 per square foot, but \u201cto be conservative,\u201d Ms. Peyton testified, the other tracts \u201cwere adjusted\u201d to $2.00 per square foot. She testified that she had changed her \u201capproach\u201d for the second trial, but admitted \u201cI have gone back and recalculated to come up with a different method for establishing basically the same thing.\u201d Ms. Peyton did testify that she started with a square-foot valuation based on the market value of comparable property. She said she adjusted the value of the appellees\u2019 property based on the information she gathered on the cost of filling appellees\u2019 land to where it would be suitable for commercial development. She admitted there was a problem with access to that portion of appellees\u2019 property south of the creek, that she had \u201cno idea\u201d what it would cost to build a bridge over the creek, but she thought there were \u201call kinds of possibilities in dealing with that creek besides building a two million dollar bridge across it.\u201d She also testified, using the Williford property as an example, that after his property was filled, brought to grade, and was ready to be built on, it would be worth $2.50 per square foot; that this would be the average price, the portion north of the creek and fronting on Kanis Road being worth $6.00 per square foot and the portion south of the creek being worth $.50 per square foot.\nBecause the motion to strike is largely a matter of discretion, we cannot hold that the trial court erred in refusing to strike Ms. Peyton\u2019s value testimony, but her testimony impacts on the next point that we discuss.\nII.\nThe second point we discuss is appellant\u2019s argument that the trial court applied the wrong measure of damages.\nAppellant offered two instructions, which were refused, on the measure of just compensation. Requested Instruction No. 3 was as follows:\nThe measure of damages allowed for the taking of land for a right-of-way or easement is the market value of the land so taken and, separately, the damage, if any, resulting from the taking to the owner\u2019s remaining lands.\nThe other instruction offered by appellant on the measure of just compensation was requested Instruction No. 4, which stated:\nYou are instructed that the measure of compensation to be paid for the temporary easement is the fair rental value of the property within the temporary easement for the period of construction which, in this case, was one year.\nThe court refused each of the above requested instructions, and over appellant\u2019s objection that it was the wrong measure of damage, the court gave the jury the following instruction:\nY ou are to assess the damages to the property of Doug Williford, Juanita Starks, Ron and Diana Hopper and Tom Starks and you must then fix the amount of money which will reasonably and fairly compensate each of them for the difference in the fair market value of the lands of each immediately before and immediately after the taking.\nThe appellant contends that the correct measure of damages in a condemnation case involving a partial taking by a nonsover-eign condemnor is the value of the land taken plus any damage to the remainder, but if the taking is by the sovereign, the correct measure is the difference in the fair market of the entire tract immediately before and immediately after the taking. Our decision in Arkansas Louisiana Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985), is cited in support of appellant\u2019s contention. In that case we acknowledged that the rule in the two situations is different. We explained that this results from the right of the sovereign to have any special benefits offset against the damages sustained by the landowner, while no such right exists where the condemnor is a private corporation. Cited in support of our explanation where the cases of Arkansas Louisiana Gas Co. v. Howell, 244 Ark. 86, 423 S.W.2d 867 (1968), and Ozark Gas Transmission System v. Hill, 10 Ark. App. 415, 664 S.W.2d 892 (1984).\nAs we stated in James, the Arkansas Constitution permits the state to authorize private corporations to condemn property but Article 12, \u00a7 9 provides that full compensation must be paid by the corporation \u201cirrespective of any benefit from any improvement proposed by such corporation.\u201d What this means was summed up by the Arkansas Supreme Court in Howell:\nConsequently, 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.\n244 Ark. at 90.\nAlthough the appellees contend that the appellant improvement district should be accorded the status of sovereign for the purpose of determining the proper measure of damages when the district exercises its power of eminent domain, we do not agree. Appellant is a property owners\u2019 improvement district formed under the provisions of Ark. Code Ann. \u00a7\u00a7 14-93-101 \u2014 14-93-133 (1987 and Supp. 1991). Ark. Code Ann. \u00a7 14-93-113(a) (Supp. 1991) provides:\n(1) All districts organized under this chapter shall have the right of eminent domain in order that they may carry out the purposes of their creation.\n(2) This right shall be exercised in the same manner as in the case of railroad, telegraph, and telephone companies, but without the necessity of making a deposit of money before entering into possession of the property condemned.\nThe right of eminent domain granted to railroad, telegraph, and telephone companies is controlled by Ark. Code Ann. \u00a7\u00a7 18-15-1201 \u2014 18-15-1207 (1987). Section 18-15-1204(b) provides:\nThe amount of damages to be paid the owner of the lands for the right-of-way for the use of the company shall be determined and assessed irrespective of any benefit the owner may receive from any improvement proposed by the company.\nIt is clear that the explicit statutory provisions governing the exercise of the appellant improvement district\u2019s right of eminent domain require payment for the market value of the land taken without offset for any benefit the landowner may receive from the construction of the improvement.\nThus we have two methods to arrive at just compensation in eminent domain cases. When the sovereign exercises its right to take a portion of a tract of land, the proper way to measure just compensation is by the difference in the fair market value of the entire tract immediately before the taking and the fair market value immediately after the taking. In this way any special benefit resulting from the public use of the land taken by the sovereign which increases the value of the land not taken will offset the amount the sovereign will have to pay. This is proper because the owner of the land has received his just compensation, although partly by the increase in value of the land he has left.\nOn the other hand, where railroad, telegraph and telephone companies (or improvement districts) exercise the right of eminent domain, the just compensation to the owner of the land taken is properly measured by the value of the portion of the land taken plus any damage to the portion left. In this way, the owner of the land receives payment \u201cirrespective of any benefit\u201d the owner may receive from the construction of the improvement. This is proper because it is what the statutes enacted by the legislature of this state, in keeping with our constitution, provide.\nOur case of Arkansas Louisiana Gas Co. v. James, supra, which thoroughly discussed these two measure of just compensation, and the reasons for them, also discussed another point argued by the appellees in the instant case:\nWhile testimony as to the before and after values might be prejudicial to the landowner as permitting the trier of fact to consider special damages, it prejudices no right of the appellant corporation. If there was technical error in admitting this testimony of appellee it was harmless.\n15 Ark. App. at 189. While there was no prejudice to the appellant in James, we think there was prejudice in the instant case. Here, the easement taken for the sewer line was within the Rock Creek floodway. Neither of the appellees\u2019 expert witnesses testified to the value of the easement actually taken. Their testimony focused upon the difference in the value of the appellees\u2019 property before and after the taking. This is also how the trial court\u2019s instruction told the jury to arrive at the amount of just compensation to be awarded to the appellees. This case, however, is not like the James case where only the testimony was at issue. There is nothing in that opinion which suggests that the court instructed the jury that the way to measure just compensation was to take the difference in the before and after values. Under the peculiar circumstances here, including the vast difference in the appellant\u2019s and appellees\u2019 value testimony, we think it was error for the court to instruct the jury to award the appellees the difference in the before and after value of their property instead of the value of the property taken and the damage, if any, to the land remaining. The appellant has expressed the point as follows:\n[ B]y applying the before and after measure, the Court enabled the Appellees\u2019 value witnesses to establish an \u201cacross the board\u201d average value per square foot of each of the tracts involved which had the effect of increasing the value of the floodway lands because they were averaged with the Kanis Road frontage.\nAs the appellant points out, Ms. Peyton testified that two tracts were worth $2.50 per square foot and the other tracts were worth $2.00 per square foot. She did not, however, testify as to the value of the property taken for the easement. We think the failure of the trial court to correctly instruct the jury to base compensation on the value of the easement taken, plus any damage to the property remaining, constituted reversible error. We also think the court should have given appellant\u2019s requested Instruction No. 4, which pertained to the temporary easement.\nIII.\nWe now discuss appellant\u2019s argument that the trial court should have allowed the landowners to be questioned concerning the purchase price paid for their properties. We think the court did err in not allowing appellant to cross-examine appellee Williford about this matter since Williford said on direct examination that he \u201ccertainly paid more\u201d for his property than the appellant offered to pay for the taking of Williford\u2019s property. However, this point may not arise on retrial. As to the other appellees, the considerations on retrial will involve how recent the purchase was, whether the transaction was voluntary, whether there has been marked fluctuation in values since the purchase, and various other factors. See Arkansas State Highway Commission v. Hubach, 257 Ark. 117, 514 S.W.2d 386 (1974); Arkansas Power and Light Co. v. Llewellyn, 268 Ark. 839, 595 S.W.2d 712 (Ark. App. 1980).\nIV.\nFinally, we discuss the appellant\u2019s contention that the trial court erred in refusing to instruct the jury that the landowners has the burden of proving that the amount deposited by the appellant was not sufficient as just compensation for the property taken. Instruction No. 6, offered by appellant and refused by the court, was as follows:\nThe defendants contend that the plaintiff has not offered just compensation for the easement right taken for the sewer line. The defendants have the burden of proving this contention.\nThe court also refused appellant\u2019s requested instruction No. 7, which is AMI Instruction 202. This instruction would have told the jury that the party who has the burden of proof on an issue must establish it by a preponderance of the evidence and would have defined the meaning of preponderance of the evidence.\nIt has long been recognized in Arkansas that the burden of proof on the issue of just compensation is upon the landowner. In Springfield and Memphis Railway v. Rhea, 44 Ark. 258 (1884), the court said:\nTo the defendant were justly accorded the opening and conclusion of the argument. The landowner is, in such cases, the real actor, no matter which party initiates the proceedings. No issue can be raised as to the right of the railroad corporation to condemnation, or as to his right to compensation. The law confers these rights, and the filing of the petition by the railroad company is an admission that he is entitled to some damages. The extent of the damage is the object of the inquiry. And here the burden of proof is upon him.\nId. at 264 (emphasis added). We do not find where this point has been questioned since the above case was decided; however, the Arkansas Supreme Court has occasionally repeated the rule. In Arkansas State Highway Commission v. Hambuchen, 243 Ark. 832, 833, 422 S.W.2d 688 (1968), the court said, \u201cThe landowners, having the burden of proof on the issue of value, rested their case after having produced only two witnesses.\u201d In Arkansas State Highway Commission v. Southern Development Corporation, 250 Ark. 1016, 1020, 468 S.W.2d 102 (1971), the court said, \u201cMarket value is a factual issue peculiarly within the province of the jury and to be proved by the owner as a fact.\u201d And in Arkansas State Highway Commission v. First Pyramid Life Insurance Company, 265 Ark. 417, 579 S.W.2d 587 (1979), Justice Fogleman, dissenting in part, said, \u201cIn this case, the ultimate power of the sovereign is pitted against the private citizen-subject who bears the burden of proving by a preponderance of the evidence the amount of \u2018just compensation\u2019 due him for his property taken by the sovereign,\u201d 265 Ark. at 427.\nMoreover, Ark. Code Ann. \u00a7 16-64-110 (1987), in pertinent part, states:\n(3) (A) The party on whom rests the burden of proof in the whole action must first produce his evidence;\n(B) The adverse party will then produce his evidence;\n(6) The parties may then submit or argue the case to the jury. In the argument the party having the burden of proof shall have the opening and conclusion; and if, upon the demand of his adversary, he refuses to open and fully state the grounds upon which he claims a verdict, he shall be refused the conclusion.\nIn keeping with the above statutory provisions, the appellees in this case first produced their evidence, and in the arguments to the jury the appellees opened and closed.\nWe think it is clear that in Arkansas in a condemnation case where the issue is just compensation the landowners have the burden of proof on that issue. While the appellees cite some authority in other jurisdictions which hold that neither party has the burden on this issue \u2014 that it is simply a question of going forward with the evidence \u2014 we think the rule is different in this state and that this case was subject to our well-established rule that places the burden of proving just compensation on the landowner and gives him the right to open and close in producing evidence and arguing the case to the jury.\nThe appellees suggest, however, that even if they had the burden of proof, it was not reversible error for the trial court to refuse to give appellant\u2019s requested jury instruction on that point. We cannot agree.\nThe just compensation evidence in this case varied tremendously. Appellees\u2019 witness, Jay DeHaven, fixed their just compensation at more than $260,000. The highest amount fixed by the appellant\u2019s witnesses was $3890. The per-acre value of the land owned by appellees ranged between $340,000 to $420,000 according to appellees\u2019 evidence and from $1000 to $5300 according to appellant\u2019s evidence. We believe the jury should have been told who had the burden of establishing the amount of just compensation to which the appellees were entitled. Moreover, by refusing to give appellants\u2019 requested instruction No. 7, there was no instruction by the court that gave the jury any guidance on the amount, degree, or weight of the evidence upon which it should base its verdict. In addition to telling the jury that the party who has the burden of proof on an issue must establish it by a preponderance of the evidence, instruction No. 7 would have told the jury that \u201cit, upon any issue in the case, the evidence appears to be equally balanced,of if you cannot say upon which side it weighs heavier, you must resolve that question against the party who has the burden of proving it.\u201d\nBoth requested instructions No. 6 and 7 would have given crucial guidance to the jury which had the task of making a decision based upon enormously conflicting evidence. However, we are not satisfied that appellant\u2019s requested instruction No. 6 was totally correct, and it is the general rule that a party entitled to an instruction on an issue may not complain of the failure of the court to instruct on the matter if the requested instruction is erroneous or incomplete. Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 90, 765 S.W.2d 924, 931 (1989). And if appellant\u2019s requested instruction No. 6 should not have been given, requested instruction No. 7 would have been abstract and could not have been given. Nevertheless, we are reversing this case on another point, and in view of another trial we discuss the problem presented by appellant\u2019s requested instruction No. 6.\nThat instruction would have told the jury that the landowners contend the improvement district has not offered just compensation and the landowners have the burden of proving this contention. We are aware of the case of Arkansas State Highway Commission v. Johnson, 300 Ark. 454, 780 S.W.2d 326 (1989), and its holding that Ark. Code Ann. \u00a7 27-67-312 (1987) requires an estimate of just compensation to be annexed to the declaration of taking of property for public highway purposes and that this estimate is not a negotiation or settlement figure excluded as evidence by Ark. R. Evid. 408. See 300 Ark. at 462, 780 S.W.2d at 330. That statute, however, applies to eminent domain actions brought by the State Highway Commission. The statutes applicable to such actions brought by improvement districts do not make the same provision. Even more important is the tendency of appellant\u2019s requested instruction No. 6 to focus the jury\u2019s attention on the landowners\u2019 burden to prove that the appellant had not offered just compensation rather than the amount of just compensation to which the landowners were entitled.\nOn retrial, we think the issues in this case can be properly submitted to the jury by the usual instructional format which would tell the jury that this is an eminent domain action whereby the improvement district is taking the permanent and temporary easements necessary to construct and maintain a sewer system. The instructions should then tell the jury that \u201cyou have the duty to determine from a preponderance of the evidence, and from the rules set out in the court\u2019s instruction, the amount of just compensation to be awarded the defendants.\u201d That instruction should be followed by the instruction on the measure of damages applicable to the case as set out in appellant\u2019s requested instructions No. 3 and 4. Those instructions should be followed with one which tells the jury that the burden of proof is on the landowners to prove their claims for just compensation by a preponderance of the evidence. That phrase should then be defined as set out in appellant\u2019s requested instruction No. 7, which is AMI Instruction 202.\nOf course, other specific instructions would be given as needed, but the instructions outlined above will, in our opinion, present the basic elements to the jury on retrial.\nReversed and remanded.\nCracraft, C.J., concurs in the result.\nJennings, J., dissents.\nRogers, J., joins in the dissent.", "type": "majority", "author": "Melvin Mayfield, Judge." }, { "text": "John E. Jennings, Judge,\ndissenting. The circuit judge\u2019s instructions to the jury were entirely correct and afford no ground for reversal.\nAppellant\u2019s proffered instruction number seven was AMI 202, the general instruction on burden of proof:\nA party who has the burden of proof on a proposition must establish it by a preponderance of the evidence, unless the proposition is so established by other proof in the case. \u201cPreponderance of the evidence\u201d means the greater weight of evidence. The greater weight of evidence is not necessarily established by the greater number of witnesses testifying to any fact or state of facts. It is the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If, upon any issue in the case, the evidence appears to be equally balanced, or if you cannot say upon which side it weights heavier, you must resolve that question against the party who has the burden of proving it.\nThe Arkansas Supreme Court has said on a number of occasions that the landowner has the burden of proof on the issue of the value of the land. Springfield & M. Ry. v. Rhea, 44 Ark. 258 (1884); Arkansas State Highway Comm\u2019n v. Hambuchen, 243 Ark. 832, 422 S.W.2d 688 (1968); Arkansas State Highway Comm'n v. Southern Dev. Corp., 250 Ark. 1016, 468 S.W.2d 102 (1971). If the landowner has the burden of proving value, why then would the condemnor not be entitled to have AMI 202 given? The answer lies in the fact that the term \u201cburden of proof\u2019 is used in the law to mean two quite different things. It may refer to the \u201cburden of persuasion\u201d (or \u201crisk of non-persuasion\u201d), or it may refer to the burden of going forward with the evidence (\u201cthe production burden\u201d). This distinction was made at least as early as 1898 by Professor James B. Thayer and is explained in elementary text books on civil procedure. See Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure \u00a7 7.5 et. seq. (3d ed. 1985). We have recognized the distinction in another context. See Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988).\nThe landowner in an eminent domain proceeding has the burden of going forward with the evidence. He is entitled to open and close the argument. Rhea, supra, at 264. He must put on his evidence first and should he offer no evidence at all he would no doubt be subject to the entry of a directed verdict and would have judgment only for the amount deposited in the registry of the court by the condemnor. These are matters addressed to the court not the jury. James & Hazard, supra, \u00a7 7.7. It is in this sense that the landowner has the burden of proof.\nThe burden of persuasion, however, is dealt with in instructions to the jury such as AMI 202 which tell the jury how to resolve an issue if the evidence on that issue is equally balanced. See James & Hazard, supra, at \u00a7 7.6. To put the burden of persuasion on the landowner on the issue of damages in an eminent domain case would be to tell the jury to set damages at the amount testified to by the condemnor\u2019s witness when the evidence on each side weighs equally. Surely in such a case the jury may set the damages somewhere in between the value testified to by the opposing experts. See L.R. Junction Ry. v. Woodruff, 49 Ark. 381, 5 S.W. 792 (1887).\nThe failure to observe the distinction between the two meanings of \u201cthe burden of proof\u2019 has aptly been said to lead to \u201chopeless confusion.\u201d See James & Hazard, supra, at 314.\nNichols says that the majority rule is that the landowner has the burden of proof.\nFrom the rule that an award is [vacated] by appeal and cannot be considered by the jury in determining damages, it follows that the burden of proof of establishing his right to substantial compensation is upon the owner, even if he is defendant or respondent in the proceeding, since it is clear . . . that if no evidence were introduced by either party, the jury would have no basis upon which to fix the compensation and would be bound to award nominal damages only. [Footnotes omitted.]\n5 Julius L. Sackman, Nichols\u2019 Law of Eminent Domain \u00a7 18.5 (rev. 3ded. 1985). Although the distinction is not expressly made, it is clear enough that Nichols uses the term \u201cburden of proof\u2019 in the sense of the burden of going forward with the evidence.\nThe Conference of Commissioners on Uniform State Laws also explicitly recognized this distinction in drafting the Model Eminent Domain Code (1984). Section 903(a), addressing the burden of production, states \u201cThe defendant shall make the first opening statement, proceed first in the presentation of evidence on the issue of the amount of compensation, and make final closing argument.\u201d As the comment to section 903 notes, \u201cSubsection (1) is consistent with the majority view in the United States that the property owner, in an eminent domain action, has the right to open and close, and may proceed first with the presentation of evidence on the issue of the amount of compensation.\u201d\nIn contrast, \u00a7 904 of the Model Code, regarding the burden of persuasion, provides that, \u201cNo party has the burden of proof on the issue of the amount of compensation.\u201d The comment to that section states:\nIt seems difficult to assign an intelligible meaning to the concept of \u201cburden of proof\u2019 in the eminent domain context, since the pleadings are not required to allege or deny the amount of compensation claimed, and the ultimate standard of decision is the constitutional rule of \u201cjust compensation.\u201d The amount of compensation that is \u201cjust\u201d is essentially an objective market-established fact, although the practical difficulties of marshalling persuasive evidence of that fact are often formidable. From a realistic view, the trier of fact ordinarly is presented with varying and inconsistent opinions as to value, together with disparate supporting data; the ultimate determination necessarily reflects the weight and degree of credibility accorded to these estimates. Under these circumstances, no rational policy basis exists for assigning presumptive validity to the amount specified either in the condemnor\u2019s offer or in the property owner\u2019s demand, thereby requiring the adverse party to assume the burden of controverting that figure.\nThe Supreme Court of Ohio has said the same thing: \u201cYou might as well undertake to fit a hat to a headless man as to fit the doctrine of burden of proof to a proceeding of this character [eminent domain], which is absolutely wanting an issue to which such doctrine can be applied.\u201d Martin v. City of Columbus, 101 Ohio St. 1, 127 N.E. 411 (1920).\nRecent cases have recognized the distinction between the two meanings or aspects of \u201cthe burden of proof\u2019 and have declined to place the burden of persuasion on the landowner. In State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970), the Supreme Court of Alaska hit the nail on the head:\nIn a condemnation proceeding such as the case at bar where the sole issue is determination of just compensation, procedural rules involving the concept of risk of failure to persuade are inapposite.Here the focal point of the trier of fact\u2019s inquiry is the ascertainment of just compensation. Thus, regardless of whether the condemning agency or the property owner meets a given burden of persuasion, Alaska\u2019s constitutional mandate requires that the owner be awarded just compensation for the property he has lost. In the usual condemnation case, the jury is confronted with conflicting opinions as to value. The jury is not faced with the necessity of finding a particular value or no value at all. As to the issue of fair market value, both the condemning agency and the property owners may produce competent evidence of the fair market value of the condemned property. Absent the production of such evidence by either party, the triers of fact will determine fair market value solely from the other party\u2019s evidence. The burden of production facet of burden of proof, rather than the risk of non-persuasion aspect, is the more meaningful concept in the trial of a condemnation proceeding.\nSee also Solko v. State Roads Comm\u2019n, 82 Md. App. 137, 570 A.2d 373 (1990) (\u201cCondemnation cases are fundamentally different from other kinds of cases where value is concerned.\u201d); Hamer v. School Bd., 240 Va. 66, 393 S.E.2d 623 (1990) (No ultimate risk of non-persuasion on the issue of just compensation in a condemnation proceeding); Ellis v. Ohio Turnpike Comm\u2019n, 124 N.E.2d 424 (1955 ), rev\u2019d on other grounds, 164 Ohio St. 377, 131 N.E.2d 397 (1955) (jury acts as an assessing or appraising board, determining the fair-market value of the property from all the evidence submitted); Morrissey v. Commonwealth Dep\u2019t of Highways, 424 Pa. 87, 225 A.2d 895 (1967) (instructing jury that condemnees had burden of proving that their damages were greater than damages testified to by condemnor usurped power and function of jury); Unified Sewerage Agency v. Duyck, 33 Or. App. 375, 576 P.2d 816 (1978) (\u201cEither party may provide evidence of factors which contribute to an assessment of just compensation, but neither has the burden of proof\u2019).\nThe circuit court was right not to give appellant\u2019s proffered instruction number seven and the judge\u2019s ruling does not violate or conflict with any decision of our supreme court.\nAppellant\u2019s proposed instruction number 6 would have told the jury that the landowners had the burden of proving that they had \u201cnot [been] offered just compensation.\u201d If the instruction is construed to mean that the landowner has the burden of persuasion, it was wrong for the reasons just stated. On the other hand, if the instruction means only that the landowners had the burden of going forward with the evidence, it may be a correct statement of law but relates to a matter addressed solely to the trial judge and is not a matter for instruction to the jury. See James & Hazard, supra, \u00a7 7.7.\nThe majority also holds that the trial judge committed reversible error in telling the jury that the measure of damages was the difference between the value of their land before the taking and after the taking. According to the majority the circuit court should have told the jury to award the landowners the value of the land actually taken plus the damage, if any, to their remaining lands.\nOur opinion in Arkansas Louisiana Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985), adequately explains why appellant, the condemnor, could not possibly be prejudiced by the failure to give an instruction which draws the jury\u2019s attention to severance damages as a separate element of damages. But apart from James, the supreme court has made it fairly clear that in a \u201cpartial taking case\u201d the two instructions at issue here are merely different versions of the same rule; they offer \u201calternative formulas\u201d to arrive at just compensation. See Young v. Arkansas State Highway Comm\u2019n, 242 Ark. 812, 415 S.W.2d 575 (1967); Arkansas State Highway Comm\u2019n v. Morris, 244 Ark. 1152, 1155, 429 S.W.2d 114, 116 (1968) (Brown, J., concurring). The court should not give both instructions. Young; Morris, supra. But the instruction given by the judge here has been approved expressly or impliedly by the supreme court in partial taking cases. Arkansas Louisiana Gas Co. v. McGaughey Bros., 250 Ark. 1083, 468 S.W.2d 754 (1971); Arkansas State Highway Comm\u2019n v. Delaughter, 250 Ark. 990, 468 S.W.2d 242 (1971); Arkansas State Highway Comm\u2019n v. Stallings, 248 Ark. 1207, 455 S.W.2d 874 (1970); Clark County v. Mitchell, 223 Ark. 404, 266 S.W.2d 831 (1954); St. Louis, A. & T. R.R. v. Anderson, 39 Ark. 167 (1882). The drafters of the Model Code, as well as Nichols and Orgel, not only recognize the two formulas as essentially equivalent but also prefer the \u201cbefore and after\u201d rule followed by the circuit judge in the case at bar. Model Eminent Domain Code \u00a7 1002 comment (1984); 4A Julius L. Sackman, Nichols\u2019 the Law of Eminent Domain \u00a7 14.05 (rev. 3d ed. 1985); 1 Lewis Orgel, Valuation Under the Law of Eminent Domain \u00a7 65 (2d ed. 1953). I see neither error nor prejudice in the court\u2019s instruction on the measure of damages.\nIf the question were whether the landowners received more money for their property than should reasonably been awarded, I could perhaps agree. But that is neither an issue on appeal nor a stated basis for our reversal.\nFor the reasons stated, I respectfully dissent.\nRogers, J., joins in this dissent.", "type": "dissent", "author": "John E. Jennings, Judge," } ], "attorneys": [ "Friday, Eldredge & Clark, by: Michael G. Thompson and Andrew T. Turner, for appellant.", "Hardin & Grace and John T. Harmon & Assoc., P.A., for appellees." ], "corrections": "", "head_matter": "PROPERTY OWNERS IMPROVEMENT DISTRICT NO. 247 OF PULASKI COUNTY, ARKANSAS v. W. Douglas WILLIFORD, Willis E. and Juanita Starks, Thomas C. and Peggy Joyce Starks, Ronald Reed Hopper and Diana R. Griffin Hopper\nCA 91-369\n843 S.W.2d 862\nCourt of Appeals of Arkansas En Banc\nOpinion delivered December 23, 1992\nFriday, Eldredge & Clark, by: Michael G. Thompson and Andrew T. Turner, for appellant.\nHardin & Grace and John T. Harmon & Assoc., P.A., for appellees." }, "file_name": "0172-01", "first_page_order": 200, "last_page_order": 218 }