#### ARKANSAS STATE HIGHWAY COMMISSION v. O. A. ALLEN, et ux

73-149

501 S.W. 2d 243

Opinion delivered November 26, 1973

Thomas B. Keys and Philip N. Gowan, for appellant.

*599 Joe T. Gunter and Hugh L. Brown, for appellees.

Conley Byrd, Justice.

This is the second appearance of this eminent domain action. In Arkansas State Highway Commission v. Allen, 253 Ark. 46, 484 S.W. 2d 331 (1972), we reversed a $27,000 judgment upon a jury verdict. On retrial the jury awarded damages in the amount of $23,750. For reversal of the judgment entered thereon the Commission raises the two points hereinafter discussed.

POINT No. 1. The Commission here contends that the trial court erred in refusing to rule as to the admissibility of alleged comparable sales testified to by the landowner and his expert witness. We find no merit in the contention. The record shows that both the landowner and his expert used some comparable sales, but the record does not demonstrate that such sales were not comparable. Neither can we find any merit in the suggestion that the trial court committed error in refusing to rule on the comparability of such sales before the witness had testified relative to the sales.

POINT NO. 2. The landowner’s expert testified that the highest and best use of the subject property was for commercial and residential uses. The Commission now contends that the Patton to Fisher comparable sale used by the expert should have been struck because it was subsequently used for a commercial or industrial use. We find no merit in the contention.

Affirmed.