{ "id": 8722670, "name": "Arkansas Louisiana Gas Company v. Katherine E. Burkley, et al", "name_abbreviation": "Arkansas Louisiana Gas Co. v. Burkley", "decision_date": "1967-05-22", "docket_number": "5-4103", "first_page": "662", "last_page": "668", "citations": [ { "type": "official", "cite": "242 Ark. 662" }, { "type": "parallel", "cite": "416 S.W.2d 263" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "103 Ark. 405", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1351974 ], "opinion_index": 0, "case_paths": [ "/ark/103/0405-01" ] }, { "cite": "5 S. W. 792", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "49 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1309748 ], "opinion_index": 0, "case_paths": [ "/ark/49/0381-01" ] }, { "cite": "41 Ark. 202", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896192 ], "opinion_index": 0, "case_paths": [ "/ark/41/0202-01" ] }, { "cite": "231 Ark. 601", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697219 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/231/0601-01" ] }, { "cite": "240 Ark. 511", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727395 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/240/0511-01" ] }, { "cite": "345 S. W. 2d 20", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1691663 ], "opinion_index": 0, "case_paths": [ "/ark/233/0348-01" ] }, { "cite": "233 Ark. 338", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "221 Ark. 576", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1656588 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/221/0576-01" ] }, { "cite": "220 Ark. 932", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660123 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/220/0932-01" ] }, { "cite": "277 S. E. 889", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "152 Tenn. 348", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8534024 ], "opinion_index": 0, "case_paths": [ "/tenn/152/0348-01" ] }, { "cite": "17 S. W. 2d 886", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "179 Ark. 695", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725054 ], "opinion_index": 0, "case_paths": [ "/ark/179/0695-01" ] }, { "cite": "15 S. W. 2d 399", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "179 Ark. 154", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719505 ], "opinion_index": 0, "case_paths": [ "/ark/179/0154-01" ] }, { "cite": "192 S. W. 904", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "127 Ark. 549", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1550210 ], "opinion_index": 0, "case_paths": [ "/ark/127/0549-01" ] }, { "cite": "147 S. W. 441", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "351 S. W. 2d 447", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1688306 ], "year": 1961, "opinion_index": 1, "case_paths": [ "/ark/234/0277-01" ] }, { "cite": "234 Ark. 276", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1688391 ], "year": 1961, "opinion_index": 1, "case_paths": [ "/ark/234/0276-01" ] }, { "cite": "240 Ark. 511", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727395 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/240/0511-01" ] } ], "analysis": { "cardinality": 488, "char_count": 8971, "ocr_confidence": 0.52, "pagerank": { "raw": 2.0145279947532446e-07, "percentile": 0.7446275825347346 }, "sha256": "aef6d98c60a8ab229aa651a588461421fb64efac2673a1419c21e6b49210f380", "simhash": "1:f2300d938a1ed3d0", "word_count": 1524 }, "last_updated": "2023-07-14T15:00:12.038660+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "FoglemaN, J., disqualified.", "Harris, C. J., dissents." ], "parties": [ "Arkansas Louisiana Gas Company v. Katherine E. Burkley, et al" ], "opinions": [ { "text": "Jambs W. ChesNtjtt, Special Justice.\nThis is ah eminent domain proceeding for the condemnation of an easement for a pipeline right-of-way eighty feet in width across lands owned by Appellees. The area involved consisted of 7.1 acres.\nThe Appellees, in their Answers, asked damages for the lands actually taken based on the value of the fee, together with damages to th\u00e9 remaining lands owned by Appellees. At the trial Appellees waived any right to severance damages and the case was presented to the jury only on the issue of damages for the taking of the pipeline right-of-way.\nAppellees presented evidence that the value of the lands taken was $1,000.00 an acre. Two witnesses for the Appellant testified respectively that the lands had a value of $800.00 an acre and $780.00 an acre. Both of Appellant\u2019s witnesses testified that the lands would be worth as much after the installation of the pip\u00e9line as they were before the taking.'\nThe parties stipulated that the right-of-way easement condemned was for underground pipelines and that Appellees would have full use and control of the surface of the easement, subject to the right of Appellant to use the surface to service, repair, and lay its underground pipelines, and further stipulated that in the event of future use of the surface of the easement by Appellant, it would pay crop damage and leave the land in the same condition it was in before future repair or construction.\nAt Appellees\u2019 request, the Court gave the following instruction on measure of damages:\n\u201cUnder the law of this State the owner of land is entitled to be paid the full value of the land embraced within the right-of-way easement as if a fee had been taken, even though the landowner, after the pipeline has been constructed, has the right to continue using the surface of the right-of-way for farming or other purposes not inconsistent with the use of the easement. The Gas Company acquired by the condemnation proceedings herein the power to make such use of the right-of-way as to future needs required for the purpose for which the right-of-way was condemned.\nThe landowners herein have not complained of nor are they asking to be compensated for any damage to the remainder of the lands not included in the right-of-way easement. Therefore, you have only one element of damage to consider, which is the market value of the strip of land which was actually taken as an easement right-of-way.\u201d\nThe Appellant objected to the giving of this instruction and insisted that the proper measure of damages was the difference between the value of the entire tract immediately before and immediately after the partial taking.\nThe Appellant offered the following instruction, which was refused by the Court.\n\u201cYou are instructed that it is your duty to assess the damage, if any, to the property of Katherine E. Burkley, and you.will fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damage sustained by reason of the plaintiff\u2019s pipeline crossing the real property described in this litigation:\n1. The difference in the fair market value of the entire tract of land immediately before and immediately after the laying of plaintiff\u2019s pipeline across the said real property.\nWhether this element of damage has been proved by the evidence is for you to determine.\u201d\nThe jury returned a verdict, for Appellees in the sum of $5,680.00. The jury obviously accepted the $800.00 an acre valuation placed on the land by one of Appellant\u2019s witnesses and multiplied this .sum by the T.l acres condemned.\nThe sole issue presented on this appeal is whether the trial court was correct in instructing the jury that the landowners were entitled to the full value of the land embraced within the right-of-way easement as if fee had been taken, or whether the court should have applied the familiar \u201cBefore and After\u201d Rule as to measure of damages.\nIn Lazenby v. Arkansas State Highway Commission, 231 Ark. 601, 331 S. W. 2d 705, we said:\n\u201cSince Appellant was only seeking to recover the value of the land actually taken, it was proper to show the market value per acre. This having been done, it was only necessary to multiply that amount by the number of acres taken. There is a long line of cases in support of this rule.\u201d\nSee Little Rock & Fort Smith Railway Company v. McGehee, 41 Ark. 202 ; Little Rock Junction Railway v. Woodruff, 49 Ark. 381, 5 S. W. 792 ; Fort Smith and Van Buren District v. Scott, 103 Ark. 405, 147 S. W. 441 ; Drainage District No. 11 v. Stacey, 127 Ark. 549, 192 S. W. 904 ; Baucum v. Arkansas Power & Light Company, 179 Ark. 154, 15 S. W. 2d 399 ; and Yonts v. Public Service Company of Arkansas, 179 Ark. 695, 17 S. W. 2d 886.\nIn only one of the cases cited above \u2014 Baucum v. Arkansas Power & Light Company, Supra \u2014 did the Court mention the \u201cBefore and After\u201d Rul\u00e9,' and then only in connection with the landowner\u2019s claim for severance damages in addition to damages for the right-of-way actually taken.\nWe believe that it is proper to determine the value of the land taken by determining the market value of the land actually taken when, as in this case, no claim is made for severance damages to the remainder of the land. This determination can' be made by determining the value per acre and multiplying by the number of acres taken.\nThis view is particularly applicable to takings by private corporations in light of Article 12, Section 9 of the Arkansas Constitution of 1874, providing that compensation for such takings shall be determined irrespective of any benefit from any improvement proposed by such corporation.\nThe Appellant further contends that the \u201cBefore and After\u201d Rule must be applied in this case because the Appellant is taking only an easement, and the Appellees will retain the right to cultivate the surface of the ground after the pipeline is installed and should not be awarded the full value of the fee.\nIn Baucum v. Arkansas Power & Light Company, Supra, a case involving an electric transmission line, this Court, quoting with approval Kentucky Tennessee Light & Power Company v. Beard, 152 Tenn. 348, 277 S. E. 889, held:\n\u201cWhen; an electric light and power company, in condemnation proceedings, acquired a permanent easement across the land of another, it became liable for the full value of the right-of-way as if the fee had been taken. And the fact that the owner was given the permissive use of the right-of-way could not be considered in reduction of the sum to be allowed as compensation.\u201d\nIn Texas Illinois Natural Gas Pipeline Company v. Lawhon, 220 Ark. 932, 251 S. W. 2d 477, a case involving a pipeline easement, this Court reaffirmed Baucum and said:\n\u201cUnder the law of this State, the owner of land is entitled to he paid the fnll value of the land embraced within the right-of-way easement, as if the fee had been taken, even though the landowner, after the pipeline was constructed,, had the right to continue using the surface of the right-of-way for farming or other purposes not inconsistent with the use of the easement. Appellant acquired by the condemnation proceedings the power, to make such use of the right-of-way as its future- needs required for the purpose for which the right-of-way was condemned. \u2019 \u2019\nThe instruction given by the trial court in this case was taken almost verbatim from the. Lawhon case.\nThe rule of the Baucum, case was also followed in Arkansas Power & Light Company v. Morris, 221 Ark. 576, 254 S. W. 2d 684, another electric transmission line case, and in State ex rel Publicity and Parks Commission v. Earl, 233 Ark. 338, 345 S. W. 2d 20, a case involving easements across lands adjacent to an airport.\nAppellant relies upon Arkansas Louisiana Gas Company v. Howard, 240 Ark. 511, 400 S. W. 2d 488, in which the \u201cBefore and After\u201d Rule is mentioned as the true measure of damages for property taken by eminent domain. This case was reversed on other grounds and did not overrule Baucum and the other cases cited above.\nThe rule established in Baucum, that the landowner is entitled to receive full value of the fee for an easement of this type, tends to eliminate future litigation over damages sustained by reason of future additional construction on the easement, and should be sustained.\nAffirmed.\nFoglemaN, J., disqualified.\nHarris, C. J., dissents.", "type": "majority", "author": "Jambs W. ChesNtjtt, Special Justice." }, { "text": "CarletoN Harris, Chief. Justice,\ndissenting.. I respectfully dissent from the holding of the majority, my views being based .on this court\u2019s rulings in Feibelman v. Trunkline Gas Company, 234 Ark. 276, 351 S. W. 2d 447 (1961), and Ark-La Gas Company v. Howard, 240 Ark. 511, 400 S. W. 2d 488 (1966).\nI would reverse and remand.\u2019", "type": "dissent", "author": "CarletoN Harris, Chief. Justice," } ], "attorneys": [ "Douglas Bradley and Robinson, Thornton, McCloy & Young, for appellant.", "Barrett, Wheatley, Smith & Deacon, for appel-lees.", "Oscar Feridler, amicus curiae." ], "corrections": "", "head_matter": "Arkansas Louisiana Gas Company v. Katherine E. Burkley, et al\n5-4103\n416 S. W. 2d 263\nOpinion delivered May 22, 1967\n[Rehearing- denied July 26, 19-67.]\nDouglas Bradley and Robinson, Thornton, McCloy & Young, for appellant.\nBarrett, Wheatley, Smith & Deacon, for appel-lees.\nOscar Feridler, amicus curiae." }, "file_name": "0662-01", "first_page_order": 684, "last_page_order": 690 }