{ "id": 1606852, "name": "Arkansas State Highway Commission v. George Poteete", "name_abbreviation": "Arkansas State Highway Commission v. Poteete", "decision_date": "1968-10-21", "docket_number": "4633", "first_page": "430", "last_page": "435", "citations": [ { "type": "official", "cite": "245 Ark. 430" }, { "type": "parallel", "cite": "432 S.W.2d 774" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "243 Ark. 943", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725016 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/243/0943-01" ] }, { "cite": "118 F. 2d 79", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 472948 ], "opinion_index": 0, "case_paths": [ "/f2d/118/0079-01" ] }, { "cite": "353 P. 2d 185", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 643127 ], "opinion_index": 0, "case_paths": [ "/ariz/88/0097-01" ] }, { "cite": "244 F. Supp. 831", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 403722 ], "opinion_index": 0, "case_paths": [ "/f-supp/244/0831-01" ] }, { "cite": "164 Mass. 380", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 789036 ], "opinion_index": 0, "case_paths": [ "/mass/164/0380-01" ] }, { "cite": "115 S.W. 375", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1908, "opinion_index": 0 }, { "cite": "88 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517168 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/ark/88/0533-01" ] }, { "cite": "238 Ark. 278", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734288 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/238/0278-01" ] } ], "analysis": { "cardinality": 491, "char_count": 7746, "ocr_confidence": 0.499, "pagerank": { "raw": 7.334814173087165e-08, "percentile": 0.44019689951035756 }, "sha256": "536961f441c6a3afe0b6c569f3958bb45e62086dd1fb0447f8f8f8a9a50d5202", "simhash": "1:ca8d08d24ff05e42", "word_count": 1369 }, "last_updated": "2023-07-14T16:29:50.317094+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Byrd, J., dissents." ], "parties": [ "Arkansas State Highway Commission v. George Poteete" ], "opinions": [ { "text": "Lyle Brown, Justice.\nThis is an eminent domain proceeding instituted by the Arkansas State Highway Commission in connection with the construction of Interstate 40 through the town of PlumervilLe, Conway County. The taking traversed a substantial portion of a subdivision owned by appellees, George Poteete and wife. The Highway Commission\u2019s principal point on appeal concerns the fact that the jury was permitted to consider possible damages to twenty-eight lots, no part of which was in the actual taking.\nSixty full lots and portions of thirty-three lots were within the new right-of-way. The Commission contended that those 93 lots were the only lots to be considered in awarding compensation. It was the landowners\u2019 theory that 28 lots outside the actual taking were diminished in value because they were so interdependent with the parcels taken. The trial court submitted to the jury the described controversy in this manner: If the jury found that each of the 121 individual lots (60 taken, 33 partially taken, and 28 not touched by taking) constituted a single unit of value, then the Poteetes could not recover for any depreciation in value of the 28 lots; on the other hand, if the jury found there was a connected or wnity of use of the 121 lots, then the entire 121 lots should be taken as a unit of value and used in calculating compensation.\nThe Commission relies principally on Arkansas State Highway Comm\u2019n. v. Taylor, 238 Ark. 278, 381 S.W. 2d 438 (1964). That case involved lots in a subdivision. \u00a5e held that where the only use shown for the lots was a separate and distinct use and the holding of each lot by itself, each individual lot constituted a unit of value. In that event those lots not in the actual taking could not be considered in calculating compensation.\nThe fact situation in Taylor hardly makes it applicable to the case at bar. There it was emphasized that no testimony showed that any one of the lots in the subdivision was used, or would be used, in connection with any other lots. We hasten to reaffirm the law in Taylor, but it does not encompass every situation in which there is a partial taking of a subdivision. Long* before Taylor, our Court made this pronouncement in Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S.W. 375 (1908) :\n\u201cThis court has frequently held that in a proceeding by a railroad company to condemn a right of way the assessment of damages is not restricted to the injury done to the legal subdivision of land described in the petition, and that if the tract described is part of a larger connected body of land the owner may recover for the injury done to the tract as a whole. It follows from this that where the whole of a tract of land is taken it should be valued as a whole, and not according to the legal subdivisions as distinct and separate parcels of land.\n\u201c \u2018Whether a particular lot of land constitutes an independent parcel is a question which cannot be determined in the affirmative by the mere fact that it is separated from other land by a highway or street, or by paper lines, or by fences; nor can it be determined in the negative by the mere fact that it is all in one ownership and is not divided by streets or by paper lines.\u2019 Wellington v. Boston & Main Bd., 164 Mass. 380; ...\u201d\nIn general terms it may be said that the controlling principle is \u201cseparate and independent\u201d utilization as opposed to a \u201cconnected or unity of use.\u201d That is the essence of the test in Boles. See Nichols Em. Dom. Supp. V. 4, \u00a7 14.31; USA v. 26.81 Aeres, 244 F. Supp. 831; State v. Jay Six Cattle Co. (Ariz.), 353 P. 2d 185; U.S. v. Powelson, 118 F. 2d 79.\nAn examination of the lots, including the utilities, reveals these elements of interdependence or evidence of the same:\n1. A substantial number of the \u201cuntouched\u201d lots on the north of the interstate are dependent, for sewage purposes, on Wall Street, which was taken, that being the natural outfall of a sewer line;\n2. Access to the \u201cuntouched\u201d lots on the north:\n(a) Lots 1-12 in the northwest corner have no access except through lots that were in the taking (saving two lots bordering on Highway 92);\n(b) Lots 2-6, Block 2, and Lots 13, 14, Block 3, are dependent for access on streets and lots in the taking;\n(c) Lots 1, 2, and 3, Block 1 could not be reached except by traversing several adjoining lots (excepting Lot 1 which is bordered by a street on the east side) ;\n3. \u201cUntoucher)\u201d lots in the southwest corner:\n(a) Lot 25, which was partially taken, abutted Highway 92. Lot 26 abuts Lot 25 on the east. Testimony was to the effect that Lots 25 and 26 needed to be joined in a single sale to make an attractive unit with highway frontage;\n(b) The highest economic value of Lots 26-30 was said to be dependent on the top tier of five lots adjacent on the north, which tier was partially taken;\n(c) A partial taking of Lot 40, which abuts Highway 92, allegedly destroyed the marketability of Lot 39; those two lots would have been combined to make an ideal building unit with highway frontage;\n(d) The taking closed the west end of a ten-foot alley running behind Lots 26-30. Appraiser Barnes testified that none of those lots could ever be serviced by the dead-end alley;\n4. Appraiser Barnes pictured the highway right-of-way as running the full length, east and west, of the subdivision and roughly cutting a wide swath through the center. He reasoned that the street pattern serving most of the \u201cuntouched\u201d lots had been destroyed. (A majority of the streets in the affected area now \u201cdead-end\u201d into the new highway.) He also asserted that the right-of-way would have to be utilized to run sewer lines to the \u201cuntouched\u201d lots on the north. That was the route laid out by the town of Plumerville. Presently, according to Barnes, the cost of laying those facilities would be prohibitive;\n5. There was also evidence that a number of the lots would necessarily be sold in groups of \u201cthree-lot-deep tiers\u201d; and others would be sold in two-lot units. Witness Pearce testified that a normal homesite in Plumerville required two or more lots of the general size of those in the subdivision.\nNichols summarizes the rule in this manner, which we consider applicable here:\n\u201cIn many cases the court can, as a matter of law, determine that lots are distinct or otherwise, but ordinarily it is a practical question to be decided by the jury or other similar tribunal which passes upon matters of fact, which should consider evidence on the use and appearance of the land, its legal divisions and the intent of its owner and conclude whether on the whole the lots are separate or not.\u201d Nichols Em. Dom. Supp., V. 4, \u00a7 14.31.\nWe hold that the trial court acted properly in submitting the matter to the jury and we have summarized evidence which we think made the question one for the jury to resolve.\nOne other contention is urged for reversal. The Commission contends that testimony regarding compensation for the twenty-eight lots, no part of which was taken, would be in the nature of an assertion for special damages; that special damages were not pleaded and therefore no recovery is allowable. The answer is that the landowners here tried their case on the theory that the 121 lots had a unit of use and that the taking of a-part of the unit diminished the value of the residual, or the twenty-eight lots. Diminution in value of part of an individual tract- \u2014 if it is a unit \u2014 is not classified as special damages. Arkansas State Highway Comm\u2019n. v. Lewis, 243 Ark. 943, 422 SW. 2d 866 (1968).\nAffirmed.\nByrd, J., dissents.", "type": "majority", "author": "Lyle Brown, Justice." } ], "attorneys": [ "Thomas B. Keys and James K. Biddle for appellant.", "Gordon, Gordon & Eddy for appellees." ], "corrections": "", "head_matter": "Arkansas State Highway Commission v. George Poteete\n4633\n432 S.W. 2d 774\nOpinion Delivered October 21, 1968\nThomas B. Keys and James K. Biddle for appellant.\nGordon, Gordon & Eddy for appellees." }, "file_name": "0430-01", "first_page_order": 454, "last_page_order": 459 }