{ "id": 1886761, "name": "ARKANSAS STATE HIGHWAY COMMISSION v. William H. JOHNSON, et al.", "name_abbreviation": "Arkansas State Highway Commission v. Johnson", "decision_date": "1989-11-20", "docket_number": "89-236", "first_page": "454", "last_page": "469", "citations": [ { "type": "official", "cite": "300 Ark. 454" }, { "type": "parallel", "cite": "780 S.W.2d 326" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "251 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "227 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "524 P. 2d 1242", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10480136 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/p2d/524/1242-01" ] }, { "cite": "284 Ark. 372", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878607 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/284/0372-01" ] }, { "cite": "239 Ark. 592", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1730915 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/ark/239/0592-01" ] }, { "cite": "275 Ark. 229", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753633 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0229-01" ] }, { "cite": "207 Ark. 966", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1481801 ], "weight": 2, "year": 1944, "opinion_index": 0, "case_paths": [ "/ark/207/0966-01" ] }, { "cite": "11 Ark. App. 90", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6650525 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/11/0090-01" ] }, { "cite": "231 Ark. 273", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697105 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/ark/231/0273-01" ] }, { "cite": "269 Ark. 458", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712501 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0458-01" ] }, { "cite": "430 N.Y.S.2d 507", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1980, "opinion_index": 0 }, { "cite": "410 So.2d 3", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9523933 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/so2d/410/0003-01" ] }, { "cite": "605 F.2d 762", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1444527 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/605/0762-01" ] }, { "cite": "420 N.Y.S. 113", "category": "reporters:state", "reporter": "N.Y.S.", "year": 1979, "opinion_index": 0 }, { "cite": "617 P.2d 347", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10445678 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/p2d/617/0347-01" ] }, { "cite": "439 A.2d 600", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1982, "opinion_index": 0 }, { "cite": "50 Md. App. 484", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 2276786 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/md-app/50/0484-01" ] }, { "cite": "Ark. Code Ann. \u00a7 27-67-312", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "42 U.S.C.A. \u00a7\u00a7 4651", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 0 }, { "cite": "265 Ark. 417", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664840 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/265/0417-01" ] }, { "cite": "257 Ark. 659", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722768 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/ark/257/0659-01" ] }, { "cite": "252 Ark. 206", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630096 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/0206-01" ] }, { "cite": "548 F.2d 1130", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 993449 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/f2d/548/1130-01" ] }, { "cite": "42 U.S.C. \u00a7 4651", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 1 }, { "cite": "11 Ark. App. 90", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6650525 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark-app/11/0090-01" ] }, { "cite": "231 Ark. 273", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697105 ], "weight": 2, "year": 1959, "opinion_index": 1, "case_paths": [ "/ark/231/0273-01" ] }, { "cite": "269 Ark. 458", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712501 ], "weight": 2, "year": 1980, "opinion_index": 1, "case_paths": [ "/ark/269/0458-01" ] }, { "cite": "605 F.2d 762", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1444527 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/f2d/605/0762-01" ] }, { "cite": "Ark. Code Ann. \u00a7 27-67-312", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 27-67-319", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 2 }, { "cite": "Ark. Code Ann. \u00a7 27-67-315", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 2 }, { "cite": "42 U.S.C. \u00a7 4651", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 2 }, { "cite": "Ark. Code Ann. \u00a7 27-67-312", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 2 }, { "cite": "265 Ark. 417", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664840 ], "weight": 2, "year": 1979, "pin_cites": [ { "parenthetical": "First Pyramid" }, { "parenthetical": "First Pyramid" } ], "opinion_index": 2, "case_paths": [ "/ark/265/0417-01" ] }, { "cite": "252 Ark. 206", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1630096 ], "weight": 2, "year": 1972, "opinion_index": 2, "case_paths": [ "/ark/252/0206-01" ] } ], "analysis": { "cardinality": 1154, "char_count": 31062, "ocr_confidence": 0.915, "pagerank": { "raw": 1.2385336339190156e-07, "percentile": 0.6073132062911776 }, "sha256": "658a3a82920d81b78bbcc1aaa79e2e21b6693063bc0902ac1c97999b72ac58e1", "simhash": "1:67472095781fc78a", "word_count": 5182 }, "last_updated": "2023-07-14T15:14:13.062447+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hickman, Hays, and Glaze, JJ., dissenting in part.", "Hickman, J., joins this dissent." ], "parties": [ "ARKANSAS STATE HIGHWAY COMMISSION v. William H. JOHNSON, et al." ], "opinions": [ { "text": "David Newbern, Justice.\nThis is an appeal by the Arkansas State Highway Commission of a judgment awarding $600,000 to William H. Johnson and other landowners whose property was condemned by the commission to construct a highway interchange. The landowners cross-appeal the trial court\u2019s refusal to award attorneys\u2019 fees. The commission contends the court erred in permitting the landowners to introduce the testimony of Mr. Sanson, who was not called as a witness by the commission, that he had been hired by the commission to make an appraisal of the land taken and appraised it at $233,600. We agree it was improper to allow Sanson to testify that he formed his opinion at the request of the commission, and thus the decision must be reversed. Because we reverse on this point, we need not address the commission\u2019s argument that a court of appeals decision in an earlier appeal of this case is law of the case. We disagree with the commission\u2019s second argument that evidence of the amount it determined to be just compensation for the land taken was erroneously admitted. We address that issue in order to guide the trial court upon retrial, and we conclude the evidence was relevant and admissible.\nThe landowners contend in their cross-appeal that Ark. Const., art. 2, \u00a7 22, requires that they be awarded their attorneys\u2019 fees because they are to be \u201cmade whole.\u201d We do not interpret the Constitution as creating a right to attorneys\u2019 fees, and thus we affirm on cross-appeal.\nAt the conclusion of the first trial of this case, the jury returned a verdict awarding nothing to the landowners. Judgment was entered awarding the commission $233,600 which had been deposited by the commission with the court, and disbursed to the landowners, as the amount the commission determined to be the value of the land at the time of the taking. The landowners had sought additional damages, which they claimed had been caused by the taking, for injury to surrounding remaining land owned by them. In response, the commission had contended that the remaining land was enhanced by the taking.\nThe landowners sought to introduce evidence that two commission appraisers had concluded that there was neither injury to nor enhancement of the value of the surrounding land. They also sought, by a motion in limine, to exclude evidence of subsequent sales of the remaining land. The trial court denied the motion in limine and refused to allow the landowners to present evidence of commission appraisers\u2019 answers to interrogatories. The landowners\u2019 motion for new trial was granted because the judge concluded he had erred in making these evidentiary rulings and in not holding a sufficiently detailed hearing. The order granting a new trial was affirmed by the court of appeals, and the case was retried, resulting in this appeal.\n1. Sanson\u2019s testimony\nJimmy Sanson is a reviewing appraiser, but at the time of the trial he was a staff appraiser, employed by the commission. He appraised the land to be taken as being worth $233,600. The commission did not call Sanson as a witness but presented the testimony of other appraisers who testified the landowners were not damaged by the taking because of enhancement, caused by the taking, of the value of their remaining lands. There is no doubt, and it is not argued, that a witness such as Sanson can be called to give his opinion by the party who did not originally procure the witness\u2019s opinion. The issue here is whether it was error to permit Sanson to reveal that his opinion was originally procured by the commission which chose not to present him as a witness.\nIn Arkansas State Highway Commission v. Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972), this court held, with three justices dissenting, that a landowner was permitted to call as a witness a staff appraiser hired by the commission and identified as such to give an opinion, although he was not called as a witness by the commission. In Arkansas State Highway Commission v. Witkowski, 257 Ark. 659, 519 S.W.2d 743 (1975), it was held the trial court did not err in following the Phillips case but that the issue had been decided by a divided court and would be reconsidered. The opinion noted that a majority of jurisdictions would not agree with the Phillips decision.\nIn Arkansas State Highway Commission v. First Pyramid Life Ins. Co.of America, 265 Ark. 417, 579 S.W.2d 587 (1979), the Phillips case was, although not mentioned by name, effectively overruled. It was held, citing the language of the Witkowski decision and the cases cited there, that it was prejudicial error to allow a party to introduce into evidence the original employment of an expert witness over the objection of the party who originally employed the expert. While the only reason given in the First Pyramid decision was that the original employment of the expert was not \u201cpertinent\u201d to the issue of valuation, the other reasons can be found in Justice George Rose Smith\u2019s dissenting opinion in the Phillips case. Justice Smith\u2019s opinion began as follows:\nI would reverse this judgment. In simple fairness a party ought not to be permitted to show, as the appellees did in the trial court, that his adversary has failed to call as a witness an expert whom his adversary employed merely for the purpose of obtaining an opinion. If such testimony has any effect at all, other than its intended purpose to arouse an attitude of passion and prejudice in the jury room, that effect is completely outweighed by the reasons of policy for not admitting such proof and by the weight of authority elsewhere.\nThe opinion then pointed out, (1) that such testimony is of no direct benefit to the jury in reaching its decision, (2) that there, as here, there was no reason to suspect wrongdoing by the commission, (3) it is unfair to put the commission in the position of having to explain its action in not calling the witness, and (4) the better reasoned cases do not permit it.\nThe landowners argue that the Witkowski and First Pyramid cases are distinguishable or should be reexamined and overruled. With respect to the argument that the cases are distinguishable, no arguments are made, but the landowners refer to the fact that the trial judge distinguished them. Looking to the trial court\u2019s order we find his distinction to have been on the basis that \u201cthe appraisals\u201d of the commission were used in this case in making representations to third parties, primarily the federal government in obtaining federal funding for the highway project, and that was not so in the Witkowski and First Pyramid cases.\nIt was not \u201cthe appraisals\u201d that were used to get federal money for the project. It was, rather, the commission\u2019s \u201cstatement of just compensation\u201d which is required by the federal guidelines stated in the Uniform Relocation Assistance and Real Property Acquisition Act of 1970,42 U.S.C.A. \u00a7\u00a7 4651 through 4655. The statement of \u201cjust compensation\u201d required by \u00a7 4651 to be made by the condemning authority to the landowner is clearly a conclusion reached by the agency which shall be no less than \u201cthe agency\u2019s approved appraisal of the fair market value of such property.\u201d The two are obviously separate. The conclusory statement of \u201cjust compensation\u201d is like the statement of \u201cjust compensation\u201d Ark. Code Ann. \u00a7 27-67-312 (1987) requires to be annexed to a declaration of taking made by a condemning authority.\nMr. Sanson\u2019s appraisal was in the amount of $233,600. That was also the amount stated in the statement of just compensation in this case. The fact that the amount of Sanson\u2019s appraisal is the same as the amount of the just compensation statement makes it somewhat difficult in this case to perceive that the two are separate, but they are. Sanson testified that the commission\u2019s procedure in establishing the amount of just compensation for land to be taken begins with an appraisal, such as the one he made, by a staff appraiser. That appraisal is then reviewed by a reviewing appraiser. If the reviewing appraiser agrees with the staff appraiser\u2019s appraisal, \u201cas of that point, it becomes the official position of the Arkansas Highway Department that this is the amount of just compensation that the property owners are entitled to.\u201d\nThe record includes a deposition by Paul Broyles, Chief of the Right-of-Way Division, Arkansas Highway Department. Mr. Broyles stated the procedure used by the department and noted that an appraisal by a staff appraiser would not necessarily become the department\u2019s determination of just compensation to be used for negotiations with the landowner or in obtaining federal funding. It first must be approved by the reviewing appraiser, after which it \u201cwould normally be sent to the Acquisition Section and utilized in negotiations with the landowner and in application for federal funds. . . .\u201d\nWhile the issue of the admissibility of the statement of just compensation which we address in the next segment of this opinion was not raised in the Witkowski and First Pyramid cases, the issue of the admissibility of the original employment of the appraiser was, and it is the same issue raised here. With respect to that issue, we cannot distinguish those cases from this one.\nIn asking us to reconsider the Witkowski and First Pyramid cases the landowners cite Levitsky v. Prince George\u2019s County, 50 Md. App. 484, 439 A.2d 600 (1982) and Barton v. Board of Education, 617 P.2d 347 (Utah 1982), both of which are clearly contrary to our cases. The Levitsky case recognizes the split of authority on the question of revealing the expert\u2019s original employment and notes that the Maryland Court of Appeals has chosen the approach of leaving the matter within the trial court\u2019s discretion. The opinion in the Barton case does no more than recite the argument made by the majority of this court in the Phillips case and by the dissenters in the Witkowski case. Neither of them presents anything which would cause us to reconsider the issue which was resolved in the First Pyramid decision.\nAlso cited is Cronk v. State, 420 N.Y.S. 113 (1979), apparently the opinion of a trial judge of the New York Court of Claims, for the proposition that an unfiled appraisal obtained by the condemning authority in excess of that upon which it relied at trial was admissible as an \u201cadmission against interest.\u201d That rationale is one which was not discussed in the First Pyramid opinion or in the Phillips and Witkowski cases. The opinion in the Cronk case points out that the higher appraisal had been used by the condemning authority in representations to the federal government, although the amount sought by the state agency from the federal government was argued to have been less than the amount suggested in the appraisal.\nWe find the Cronk case to be distinguishable from this one. There is no evidence that Mr. Sanson\u2019s appraisal was used by the commission in representations to third parties. As explained above, it was, rather, the commission\u2019s determination of just compensation which was so used. Again, we see a difference between the appraisal and the commission\u2019s conclusion based upon it.\nAs the amount of Sanson\u2019s appraisal and the amount the \u2022 commission concluded to be just compensation to the landowners were the same, we must consider whether any prejudice resulted from the error committed in letting the jury know of Sanson\u2019s original employment. In closing argument, the landowners\u2019 counsel stated:\nLet me say this about Mr. Sanson: You notice that while he was the appraiser that made the original appraisal, established just compensation, did it in conformity \u2014 as he testified to you \u2014 with Federal and State law what he had to do, following the requirements of the law \u2014 had that reviewed by the reviewing appraiser with the Department, who agreed with him, and signed off on it and established that as the Department\u2019s official estimate of just compensation that these people were due as a result of the taking of their twelve acres and who called Mr. Sanson. You notice Mr. Gowen [counsel for the commission] didn\u2019t call him, and he\u2019s an employee out there with Mr. Gowen at the Highway Department \u2014 had been for years \u2014 he\u2019s been there fifteen years. We\u2019re the ones that called him. Mr. Gowen could have if he was shooting straight with you. He could have put Sanson on the stand, and Sanson could have explained to you how he made the original appraisal and then how after this suit got going he decided to change his mind on it.\nLadies and gentlemen, I submit to you that you have seen a case here where the Highway Commission has played fast and loose with the rights of these citizens in making appraisals and then suppressing it, of going out and getting another appraiser at some considerable expense to tell you folks that the Highway Department could take those twelve acres out there and not pay a dime for them. That\u2019s what they\u2019re trying to do and it\u2019s not right \u2014 it\u2019s not fair.\nClearly, full advantage was taken of the evidence of Jimmy Sanson\u2019s original employment. When the argument of counsel is considered along with the fact that the jury in the first trial, at which the evidence in question here was excluded, awarded the landowners nothing and the fact that this jury awarded $600,000, we cannot say the error was not prejudicial.\n2. Evidence of just compensation\nIn United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979), the condemning authority, following the guidelines found in 42 U.S.C.A. \u00a7 4651, provided the landowners a statement of just compensation. At trial, the condemning authority presented evidence of lesser values and argued that Fed. R. Evid. 408 precluded introduction by the landowners of the statement of just compensation because it was a figure used in settlement negotiations. The court of appeals held that the statement of just compensation was an admission. It was proper evidence because, rather than being a negotiation figure, it was a statement of the amount the government believed the landowner was constitutionally entitled to if negotiations should fail.\nBoth \u00a7 4651 and Ark. Code Ann. \u00a7 27-67-312 (1987) require estimates of just compensation. The Arkansas statute requires that such an estimate be annexed to the declaration of taking of property for public highway purposes. We agree with the conclusion that the statement of just compensation is not a negotiation or settlement figure excluded by A.R.E. 408. The rationale of the 320.00 Acres of Land case has been followed in courts of other states, see, e.g., Thomas v. State, 410 So.2d 3 (Ala. 1982); Cook v. State, 430 N.Y.S.2d 507 (1980).\nIn its argument that the statement of just compensation may not be introduced, the commission cites Arkansas State Highway Commissions. Taylor, 269 Ark. 458, 602 S.W.2d 657 (1980), in which it was held that the amount deposited with the court by the commission, representing the commission\u2019s determination of the value of the land at the time of taking, was properly introduced by the landowner because it had already been mentioned by counsel for the commission in his opening statement. The opinion states, however, that \u201cordinarily evidence of the amount deposited by a condemnor as estimated just compensation is not admissible in evidence. The amount is only tentative and the amount ultimately fixed may be more or less than the deposit,\u201d citing 6A Nichols on Eminent Domain, p. 27-55, \u00a7 27.25[1] (1979). While we find no support for the statement in the cited paragraph in the treatise, we do find it in Chief Justice Harris\u2019s dissenting opinion in Arkansas State Highway Commission v. Blakeley, 231 Ark. 273, 329 S.W.2d 158 (1959).\nIn the Blakeley case, a commission appraiser testified the landowner\u2019s land was worth $200 less than before the taking. On cross-examination, counsel for the landowner mentioned that the commission had deposited $500 with the court and asked if the witness had not been working for the highway department when that appraisal was made. The witness answered he had not. The court\u2019s opinion contained this obiter dictum, which was followed by our court of appeals in Arkansas Power & Light Co. v. Melkovitz, 11 Ark. App. 90, 668 S.W.2d 37 (1984): had the witness answered \u201cyes,\u201d counsel for the landowner could have pursued the matter in order to impeach the witness\u2019s testimony by showing he had made a prior inconsistent statement. Chief Justice Harris\u2019s disagreement with the latter statement was based on his conclusion that the deposit represented only a \u201ccompromise\u201d figure or an \u201coffer\u201d being made by the commission for the land.\nWe conclude that when the commission is required by federal or state law to reach a determination of just compensation and to communicate that information to the landowner, the court, or third parties, it is by statutory definition more than an offer or compromise figure. While it is true that a jury or court may award more or less than the amount stated, that does not change the fact that such a statement constitutes an admission of the constitutional entitlement of the condemnee, and it should be admissible as evidence to rebut the condemnor\u2019s contentions that the condemned property is worth less than the amount stated as just compensation.\n3. Attorneys\u2019 fees\nThe landowners argue they are entitled to recover their attorneys\u2019 fees as a part of their compensation. They recognize that we deny such a recovery when it is sought as part of the costs of litigation in eminent domain cases, Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944), while we permit it where there is evidence of \u201cbad faith\u201d on the part of the condemning authority. Des Arc Watershed Imp. Dist. v. Finch, 275 Ark. 229, 630 S.W.2d 17 (1982); Housing Authority v. Amsler, 239 Ark. 592, 393 S.W.2d 268 (1965). They argue, however, that we permitted a rate of interest in excess of the statutory rate in Arkansas State Highway Commission v. Vick, 284 Ark. 372, 682 S.W.2d 731 (1985), on the theory that otherwise the landowner would not have been \u201cmade whole.\u201d\nWe have some sympathy for the argument that a landowner who is the defendant in condemnation proceedings and who did nothing to bring them on himself or herself but contests only the value of the property in question should not be required to pay for the proceedings. See Stewart & Grindle, Inc. v. State, 524 P. 2d 1242 (Alaska 1974), where the Supreme Court of Alaska interpreted its rule of court, which allows attorneys\u2019 fees where it appears necessary to achieve a \u201cjust result,\u201d as permitting the granting of attorneys\u2019 fees in condemnation cases. The same could be said of many other types of proceedings, however, such as the automobile accident where the plaintiff was doing absolutely nothing wrong when struck by a negligent driver\u2019s car.\nAs the landowners\u2019 brief candidly points out, the Supreme Court of Georgia once adopted the position that a landowner was entitled to attorneys\u2019 fees in condemnation proceedings, White v. Georgia Power Co., 227 S.E.2d 385 (Ga. 1976), only to find itself embroiled in controversy over the decision which it ultimately overruled, DeKalb City v. Trustees, 251 S.E.2d 243 (Ga. 1978), noting that the problems it faced could be avoided by a well drafted statute.\nAlthough we agree the provisions of Ark. Const, art. 2, \u00a7 22, constitute a strong exhaltation of the right of property in this state, the right of property comes in many different forms, and we are not prepared to hold attorneys\u2019 fees are recoverable to protect any particular one in the absence of an authorizing statute.\nReversed on appeal; affirmed on cross-appeal.\nHickman, Hays, and Glaze, JJ., dissenting in part.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Steele Hays, Justice,\ndissenting. While I concur in Sections 1 and 3 of the majority opinion, I believe the majority is mistaken with respect to Section 2. It seems patently clear that our statutes establishing the procedure by which the condemning authority can take immediate possession of lands [originating in Act 115 of 1953 and now codified in Ark. Code Ann. \u00a7 27-67-312 through 319 (1987)] did not intend that the estimated compensation deposited by the condemnor be disclosed to the jury. Nothing in Act 115 even remotely implies such a reading, nor does any part of the language of 42 U.S.C. \u00a7 4651, to which the majority opinion makes general reference.\nAct 115 plainly was designed to provide a method by which the condemning authority could obtain possession at the outset of a condemnation proceeding, rather than having to wait until the litigation was concluded. That method (provided by Act 115) was to deposit with the trial court an amount equal to the estimated value of the lands being taken. If the condemnor makes the required deposit, it is entitled to immediate possession. Act 115 also provided that the condemnee could protest the amount and the trial judge was empowered under the act to order an increased deposit. Decisions of this court and the Court of Appeals have held that the amount deposited pursuant to Act 115 is not admissible in the subsequent trial and those decisions are sound. In Arkansas State Highway Commission v. Taylor, 269 Ark. 458, 602 S.W.2d 657 (1980), Justice Fogleman, writing for a unanimous court stated the rule:\nAppellant is correct in its argument that ordinarily evidence of the amount deposited by a condemnor as estimated just compensation is not admissible in evidence. The amount is only tentative and the amount ultimately fixed may be more or less than the deposit. 6 A Nichols on Eminent Domain, p. 27-55, \u00a7 27.25[1] (1979). [My emphasis.]\nThat language was quoted verbatim by the Court of Appeals in Arkansas Power & Light Co. v. Melkovitz, 11 Ark. App. 90, 668 S.W.2d 37 (1984). The qualifying adverb (\u201cordinarily\u201d) appearing in the quoted passage clearly alludes to the exception to the rule, i.e., that the amount of the deposit may become admissible for impeachment purposes where an appraiser who provided the figure used in establishing the amount of the deposit testifies at trial to a lesser figure. In this case impeachment was not the basis of the admission.\nNor is a different course dictated by \u00a7 4651. The provisions of \u00a7 4651 (Section 301 of the Uniform Relocation Assistance and Real Property Acquisition Act of 1970) are expressly not mandatory even to federal agencies but are guidelines which are wholly advisory. See \u00a7 102, Public Law 91-646; United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979), footnote 134. They are in no way binding on this court.\nArkansas State Highway Department v. Blakeley, 231 Ark. 273, 329 S.W.2d 158 (1959), is an enigma. A bare majority affirmed the modest award of $1,000, in spite of the fact that counsel for the condemnee brought before the jury that the condemnor had deposited $500 at the time of taking. The opinion is too abbreviated to permit a conclusion as to whether the majority considered the incident prejudicially de minimis, or thought that counsel for the Commission had somehow opened the door for impeachment. It is evident that the Blakeley decision does not suggest the amount of the deposit is admissible as evidence of the value of the lands taken and Justice Paul Ward, fearing that Blakeley would be so interpreted, endeavored to make that clear in a concurring opinion:\nI concur because I think the majority opinion is subject to the interpretation (and it may hereafter be so cited) to hold the questioned testimony admissible in any event even on direct examination. I am inclined to the view that such testimony is not admissible except for the purpose of impeachment.\nChief Justice Harris was not willing to leave it to chance and, joined by Justice Holt, wrote a forceful dissenting opinion pointing out the fallacy of permitting the deposit to be used as evidence:\nFrom a practical standpoint, it seems most illogical to allow such evidence. One thing is certain, if the landowner is permitted to establish the amount deposited by the Highway Commission with its Declaration of Taking, there is no need for the Highway Department to ever offer evidence that the land is of less value than the amount deposited, for, of course, the jury will consider that the Highway Department deposited the very minimum. Certainly, it is contemplated under the statute that the amount determined by the jury may be less than the amount of the deposit, for Section 76-537 provides: \u201cIf the compensation finally awarded shall be less than the amount of money so deposited and paid to the persons entitled thereto, the Court shall enter judgment in favor of the State of Arkansas and against the proper parties for the amount of the excess.\u201d Of course, the net result is that the Highway Department, instead of depositing a fair and just sum, will be forced to deposit as small an amount as possible, and the court will frequently be called upon to determine the proper sum for deposit. When this happens, I am of the view that the size of the deposit can be kept from the jury, for this figure fixed by the Court would have the effect of pitting the trial judge\u2019s opinion against the condemner\u2019s evidence, and would therefore amount to a comment upon the weight of the evidence, which is forbidden under Arkansas practice.\nThe same concerns expressed in Chief Justice Harris\u2019s dissenting opinion were well stated by the Circuit Court of Appeal for the Fourth Circuit in Washington Metropolitan Area Transit Authority v. One Parcel of Land in Montgomery County, Maryland, 548 F.2d 1130 (1977):\nThe purpose of a pre-condemnation offer under [\u00a7 4651 ] is to expedite acquisition and avoid litigation. The Act says that the offer must not be less than reasonable market value. If the offer is to serve its purpose, it must include something more than reasonable market value for usually the seller is not a willing one and the offer\u2019s purpose is the avoidance of delay and the expense of the condemnation proceedings. To permit the offer to be received in evidence in effect would put a floor on recoveries in condemnation proceedings. No amount of explanation would prevent the jury from giving the landowner at least that much. There would be less incentive to accept the offer, and the purpose of the Act would be frustrated.\nI find no authority cited in the majority opinion which requires that we forswear our own precedents and on remand I would exclude evidence of the amount deposited by the appellant.\nThe cited treatise reads: \u201cBecause the amount deposited is only tentative and may be increased or diminished by the final judgment. . .[.]\u201d", "type": "dissent", "author": "Steele Hays, Justice," }, { "text": "Tom Glaze, Justice,\ndissenting in part. The majority relies on Arkansas State Highway Commission v. First Pyramid Life Ins. Co. of America, 265 Ark. 417, 579 S.W.2d 587 (1979) (First Pyramid), wherein this court held that neither party to a condemnation case is bound by rejected opinions of expert witnesses employed by them to appraise property being condemned and cannot be prejudiced by the admission in evidence of rejected appraisals made at their instance. The court reasoned that the testimony of such experts is \u201cnot pertinent to the issue of just compensation.\u201d Such reasoning, especially in cases like the one before us now, makes absolutely no sense.\nHere, the Highway Commission\u2019s original expert, Mr. Sanson, appraised the land in question as being worth $233,600. The Commission heavily relied upon Sanson\u2019s appraisal by commencing this condemnation suit and depositing $233,600 as estimated just compensation into the court registry. The state\u2019s depositing of this amount is one of five requirements the state must meet before it has the right to enter and take possession of the properties of the condemnees-landowners. See Ark. Code Ann. \u00a7\u00a7 27-67-312 and -314 (1987). The significance of such a deposit is emphasized by the fact that title to the land vests in the Commission when it makes the deposit with the court. Ark. Code Ann. \u00a7 27-67-315 (1987); see also Ark. Code Ann. \u00a7 27-67-319 (1987). In view of Arkansas\u2019s statutory condemnation procedure, it appears obvious the deposit amount made by the state is relevant when determining all facets of the taking of a landowner\u2019s property. If the Highway Commission had rejected Sanson\u2019s appraisal rather than relying upon it when taking the appellees\u2019 lands, I could argue that such an appraisal was not relevant \u2014 or \u201cpertinent\u201d as this court said in First Pyramid. However, when the Commission accepted and relied upon San-son\u2019s appraisal when taking appellees\u2019 lands, I fail to understand how this court can ignore the value given the condemned lands by Sanson.\nThe Highway Commission\u2019s reliance on Sanson\u2019s appraisal was even greater in the present case than in most. Here, the Commission condemned appellees\u2019 lands in connection with a project that would allow it to obtain 90% in federal funds to underwrite the cost of acquisition of the right-of-way. Federal law, the Uniform Relocation Assistance and Real Property Act of 1970 (42 U.S.C. \u00a7 4651, et al.), required the Commission in this case to give the condemned (landowners) a statement of just compensation. The Commission complied with this federal requirement and in doing so, based its statement of just compensation upon Sanson\u2019s appraisal of damages to be $233,600 \u2014 the same appraisal and amount the Commission first used in commencing this suit and taking the appellees\u2019 lands.\nIn conclusion, the majority court attempts to shore up the faulty reasoning in First Pyramid by citing Justice George Rose Smith\u2019s dissent in Arkansas Highway Comm\u2019n v. Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972). The most that I can discern from Justice Smith\u2019s dissent is that some policy reason should be adopted to exclude expert opinion testimony like that which is in issue in condemnation cases here. Justice Smith adds that such opinion evidence should not be admissible when there is no reason to suspect any wrongdoing on the part of the Commission. In my view, these arguments are simply unconvincing. The Commission thoroughly relied on Sanson\u2019s appraisal when it satisfied their purposes in applying for federal funds and taking the appellees\u2019 lands, and I believe the appellees are thoroughly justified in relying on that same evidence to show just compensation for the land. While I do not believe this court necessarily needs to overrule its decision in First Pyramid in order to affirm this case, I would have no reluctance to do so. The Phillips case, overruled by First Pyramid, certainly supported the admissibility of such expert appraisal and I have no hesitancy in returning to that view.\nFor the reasons above, I would affirm.\nHickman, J., joins this dissent.", "type": "dissent", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Robert L. Wilson, Philip N. Gowen, and Charles Johnson, for appellant.", "Sloan, Rubens, Peoples & Coleman, by: Kent J. Rubens; Friday, Eldredge & Clark, by: Robert V. Light, for appellees." ], "corrections": "", "head_matter": "ARKANSAS STATE HIGHWAY COMMISSION v. William H. JOHNSON, et al.\n89-236\n780 S.W.2d 326\nSupreme Court of Arkansas\nOpinion delivered November 20, 1989\n[Rehearing denied December 18, 1989.]\nRobert L. Wilson, Philip N. Gowen, and Charles Johnson, for appellant.\nSloan, Rubens, Peoples & Coleman, by: Kent J. Rubens; Friday, Eldredge & Clark, by: Robert V. Light, for appellees.\nGlaze, J., would grant rehearing." }, "file_name": "0454-01", "first_page_order": 482, "last_page_order": 497 }