#### Arkansas State Highway Commission v. W. D. Freyaldenhoven et ux

5-4889

439 S.W. 2d 791

Opinion Delivered April 21, 1969

[Rehearing denied May 19, 1969.]

Thomas B. Keys and Kenneth R. Brock for appellant.

Gordon, Gordon & Eddy for appellees.

George Rose Smith, Justice.

In this eminent domain proceeding the appellant is condemning a right-of-way for Interstate 40 across the appellees’ 300-acre farm, effectively cutting it in two. The jury fixed the landowners’ compensation at $20,000. The only argument for reversal is the Commission’s contention that there is no substantial evidence to sustain the landowners’ claim for severance damages, which necessarily made up the greater part of the jury’s verdict.

The controversy narrows down to the adequacy of an underpass which the condemnor constructed for the landowners’ cattle to use in traveling from one side of the divided highway to the other. There are pastures *689on both sides. It is an undisputed fact that in the landowners ’ cattle-raising operation the animals must be transferred from one pasture to the other several times a year. If the cattle can be induced to use the underpass, then the severance damages will fall far short of the amount of the verdict. But if the landowners must load their livestock in trucks and transport them to an overpass half a mile away, then the verdict is not excessive.

AVe must uphold the verdict. The landowners requested an underpass ten feet high and ten feet wide, but the highway department engineers merely enlarged a proposed concrete drainage culvert to dimensions of five feet by five feet. This tunnel is 165 feet long and according to the proof is decidedly dark throughout much of its length. AVitnesses for the landowners observed snakes and mud in the tunnel. Freyaldenhoven himself, an experienced cattle raiser, testified that his livestock refused to enter the underpass, which had been completed before the trial. He roped a gentle cow and attempted to pull her through the tunnel, but the animal balked. The jury was shown a photograph depicting that unsuccessful effort. Another cattleman, the witness Grisswood, testified that in his opinion it. would not be possible to force cattle to use the underpass. Two real estate appraisers also expressed that opinion.

The highway department countered that testimony with the opinions of two other real estate appraisers •who thought that the underpass would serve its intended purpose. The department also offered the testimony of a cattle raiser who had a similar tunnel on his property in Clark county. He testified that his cattle had readily learned to use the underpass, though the jury may have doubted his further statement that he had a 1,200-pound work horse that customarily went through the tunnel “even though he had to squat just a little.” From what we have said it is evident that the decisive issue was that of weighing the conflicting testimony of *690experienced witnesses, all of whom were worthy of belief. IIpon such an issue the verdict is conclusive.

Affirmed.