Arkansas Power & Light Co. v. Melkovitz

668 S.W.2d 37, 11 Ark. App. 90, 1984 Ark. App. LEXIS 1516
CourtCourt of Appeals of Arkansas
DecidedApril 4, 1984
DocketCA 83-145
StatusPublished
Cited by11 cases

This text of 668 S.W.2d 37 (Arkansas Power & Light Co. v. Melkovitz) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arkansas Power & Light Co. v. Melkovitz, 668 S.W.2d 37, 11 Ark. App. 90, 1984 Ark. App. LEXIS 1516 (Ark. Ct. App. 1984).

Opinion

George K. Cracraft, Judge.

In January 1979 Cleo Melkovitz and Martha, his wife, and Herbert C. Rule and Elizabeth, his wife, purchased a 439 acre tract of land in Lonoke County. In August 1979 Arkansas Power and Light Company brought this action to condemn 12.77 acres of that land for an easement for a power transmission line and, making the required deposit, entered the land on August 29, 1979. On December 27, 1982 the jury found the sum of $75,000 to be just compensation for the taking and judgment was entered. The appellant brings this appeal contending that the trial court erred in refusing to strike the testimony of appellees’ expert, that the jury verdict was grossly excessive, that the trial court erred in permitting the jury to hear evidence concerning the deposit made at the time of entry, in excluding appellant’s expert witnesses from the courtroom during the trial, and in refusing to instruct the jury as to appellees’ duty to mitigate their damages. We find no error.

Walter C. Estes, appellees’ expert, testified that he had been engaged in extensive farming all his life and had been a real estate broker in Arkansas since 1970 and in Louisiana since 1977. He now maintains real estate offices in both states. In 1978 he had a listing to sell appellees’ farm then owned by Mr. Coleman for $1250 per acre, which in his opinion after an inspection represented the fair market value. He was unable to sell the farm for Coleman and his listing expired. He took no further interest in the property until this controversy arose. He testified that he arrived at the market value at the time of taking by adjusting the $1250 per acre value he had placed on it in 1978 to current value by utilizing a percentage factor published by the government for lands in Arkansas which he had found to be accurate. He determined the value of 80 acres immediately surrounding the transmission lines after the taking at $807.50 per acre, a reduction of 50% of fair market value. He also reduced the remainder of the property by 5%, arriving at a before value of $1615.00 per acre and an after value of $1534.25 per acre. Appellant contends that although the witness gave his opinion as to these values there was no reasonable basis for it. We do not agree.

It is settled that the testimony of an expert witness should be stricken if cross-examination demonstrates that he has no reasonable basis for his opinion. Ark. State Hwy. Comm’n v. Russell, 240 Ark. 21, 398 S.W.2d 201 (1966). Appellant argues that a basis was lacking here because the expert had arrived at his value before the taking by projecting the “1978 list price of $1250 per acre and adjusted it forward to August 21, 1979 using a percentage factor published in government reports for all lands in Arkansas.” He argues that the basic figure of $ 1250 was the asking price of Mr. Coleman and not one determined by the witness. We cannot agree because although the witness did testify with regard to the listing and the price contained in it, he testified that he had inspected the property himself and had determined that Coleman’s asking price of $1250 per acre represented the fair market value. The witness testified at length as to the criteria he had used in determining fair market value such as location, soil type, adaptability of the soil, and improvements. Additionally the witness testified to several comparable sales he had utilized in arriving at his fair market value on the date of the property before the taking. No objection was made to his use of the percentage factors published by the government in adjusting that value forward to the date of taking.

Estes testified that the value of the 80 acres immediately surrounding the transmission lines was decreased by 50% and he devalued the remaining acreage by 5%. He had taken into consideration the location, size and construction of the power line and its interruption of farming activity in the 80 acre tract. He stated that any potential purchaser of the property would take those things into consideration in determining what he would be willing to pay for the property. On cross-examination he admitted that he was not familiar with any sale of real estate in that area in which the presence of a transmission line had actually depreciated market value but was giving his “educated opinion.” The appellant, relying on Ark. State Hwy Comm’n v. Jensen, 253 Ark. 795, 489 S.W.2d 5 (1973), contends that this testimony was fatally defective and should be stricken. In Jensen the expert gave opinion evidence on the value of property and improvements but admitted on cross-examination that he had not inspected the improvements and was not familiar with the farm prior to the taking except by casually viewing it from the highway. The court held that the expert’s familiarity with the property was not sufficiently established to support his specific testimony.

The court declared that on cross-examination an expert witness should be able to demonstrate that his valuation has a foundation in fact rather than mere surmise. It did not hold, as appellant suggests, that “experience and knowledge of real estate” cannot be utilized or relied on by an expert in making appraisals. It merely holds that one cannot base an opinion on those factors alone but must demonstrate some familiarity with the property.

Estes, unlike the expert in Jensen, testified that he had personally inspected the property both before and after the construction of the power line and was familiar with the property in both conditions. After the power line was erected he found the efficiency of the operation would be reduced and the cost of the operation increased by its existence. Based on his experience as a farmer and former owner of a farm crossed by a power line, he testified that obstruction on the land created hazards to the operation of machinery and aircraft and would decrease the effectiveness and increase the cost of aerial application of seed, fertilizer and herbicides, and reduce crop yield.

These opinions were shared by appellee Melkovitz, an experienced farmer and industrial pilot, and by other crop dusters called to testify. Estes also testified that the location of the towers and power lines precluded the use of a pivot sprinkler system, which is now being used in lieu of irrigation in the area because of the falling of the water table. His opinion was corroborated by other expert testimony. He testified that the reduction of 5% in value to the remaining acreage was also due to the presence of the power line and reduction in productivity to the 80 acre tract which affected the desirability of buying the whole farm. He testified that these and other problems occasioned by the erecting of the power line would definitely have an effect on the willing purchaser. In his opinion a willing purchaser when offered identical tracts, one with a power line and one without, would pay more for the one without. According to Estes these problems would recur from year to year and have an effect upon the value of the property.

Appellant also relies on Ark.-Mo. Power Co. v. Sain, 262 Ark. 326, 556 S.W.2d 441 (1977) in which seven acres through a farm were condemned for an easement for a transmission line. The expert witness testified as to the difference in the market value of the farm before and after the condemnation.

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Bluebook (online)
668 S.W.2d 37, 11 Ark. App. 90, 1984 Ark. App. LEXIS 1516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arkansas-power-light-co-v-melkovitz-arkctapp-1984.