Arkansas State Highway Commission v. Ormond

448 S.W.2d 354, 247 Ark. 867, 1969 Ark. LEXIS 1195
CourtSupreme Court of Arkansas
DecidedDecember 22, 1969
Docket5-5021
StatusPublished
Cited by15 cases

This text of 448 S.W.2d 354 (Arkansas State Highway Commission v. Ormond) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arkansas State Highway Commission v. Ormond, 448 S.W.2d 354, 247 Ark. 867, 1969 Ark. LEXIS 1195 (Ark. 1969).

Opinions

John A. Fogleman, Justice.

Appellant took 11.01 acres from a 262-,acre tract owned by appellees for the construction of Interstate Highway 40, a controlled-access highway. It appeals from a judgment awarding appellees $12,000 as just compensation, .asserting only two grounds for reversal. The first is the refusal of the trial court to strike that portion of the testimony of Charles L. Ormond, one of the landowners, relating to values based on use of the land for commercial catfish farming. The other is that there was no substantial evidence to support the verdict.

We agree that appellant’s motion to strike that portion of Ormond’s value testimony of which it complained should have been sustained. He had fixed a value of $102,114 on the whole tract before the taking and a value of $17,240 on the remaining lands, consisting of 92.5 acres north of, and 158 acres south of, the new highway. Thus, his difference between before and after values was $84,874.

Ormond, a realtor and farmer, demonstrated his familiarity with real estate values in Conway County. He testified that the highest and best use for the lands was for catfish farming, and that he had commenced operations to devote the lands to that purpose before the taking. According to him, he had constructed a preliminary pond in 1963 or 1964 and had constructed a dam on the north part of the land which had not been completed when the condemnation suit was filed. Ormond stated that he acquired the land several years before the taking after having studied the entire county to find land suitable for flooding. He felt that this land had these attributes and a terrain such that adjoining lands would not be flooded from dams necessary for his purposes. This taking destroyed accessibility to the north residual, so that there was no way to proceed with catfish farming plans.

On cross-examination, it was revealed that Ormond had made extensive investigation as to markets, prices, demands, methods, yields and costs he might anticipate when his plans were implemented. He admitted that his before taking value was based entirely on income he anticipated upon the basis of his own estimates of market prices, yields and costs. Ho also admitted that prices would fluctuate and that one could not say as much as a year in advance what the price would be when the crop was yielded. His estimate of costs included 6c for fingerling minnows, even though he acknowledged a current range of 4%c to 7c.

There is nothing whatever in the record to indicate that Ormond had any experience in this business or anything related thereto. Appellant’s objection was that the value based upon his anticipated future profits was highly speculative. Thus, appellant met its burden of showing that there was no reasonable basis for Ormond’s opinion of the value of the entire tract before the taking. Even if we should consider that evidence of income and production from commercial catfish farming is admissible under the recognized exception in cases of agricultural property, as appellees urge, there is no exception which permits such values to be based on pure speculation, as must be the case when the testimony is given by one without experience or expertise in the undertaking about which he. testifies, when there is no history as to the particular land upon which to base anticipated income or production. See Little Rock & Ft. S. Ry. Co. v. Alister, 62 Ark. 1, 34 S. W. 82.

Even though the value testimony. of Ormond was improper, this does not require reversal, if other evidence is sufficient to sustain the verdict. Owen v. Jones, 14 Ark. 502; Jones v. Malvern Lumber Co., 58 Ark. 125, 23 S. W. 679. It is only when there is no other evidence to sustain the verdict or when it is manifest that appellant was prejudiced by the incompetent evidence that a reversal is proper under circumstances existing here. See Owen v. Jones, supra; Fordyce v. McCants, 51 Ark. 509, 11 S. W. 694, 4 L. R. A. 296, 14 Am. St. R. 69. We have held that error will not require reversal where it is manifestly not prejudicial,. or where it is evident that the error did not affect the verdict. Insured Lloyd’s v. Mayo, 244 Ark. 802, 427 S. W. 2d 164; Keathley v. Yates, 232 Ark. 473, 338 S. W. 2d 335; Street v. Shull, 187 Ark. 180, 58 S. W. 2d 932; Lamden v. St. Louis Southwestern Ry. Co., 115 Ark. 238, 170 S. W. 1001.

We must determine, then, whether, in view of other evidence in the case, this error was prejudicial to appellant or whether it affected the verdict. In doing so we must also determine the other question posed, i. e., whether there was substantial evidence to support the jury verdict. We find that there was and that the error in relation to the Ormond testimony does not require reversal.

It must be remembered that only Ormond’s opinion as to the land value before the taking would have been stricken. This would leave for the jury’s consideration, not only Ormond’s opinion as to the value of the remaining lands, but his testimony as to the characteristics of the land and as to a much disputed point — its highest and best use. This was appropriate. Ormond was entitled to show every advantage that his property possessed, present and prospective, in order that the jury might satisfactorily determine what price it could have been sold for on the market. Arkansas State Highway Commission v. Carder, 28 Ark. 8, 305 S. W. 2d 330; Arkansas State Highway Commission v. O. & B., Inc., 227 Ark. 739, 301 S. W. 2d 5; City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. R. 51; Kansas City Southern Ry. Co. v. Boles, 88 Ark. 602, 115 S. W. 375. He could state and have his witnesses state any and every fact concerning the property which he would naturally be supposed to adduce in order to place it in an advantageous light if he were selling it to a private individual. Little Rock Junction Ry. v. Woodruff, supra; Stuttgart & R. B. R. Co. v. Kocourek, 101 Ark. 47, 141 S. W. 511. An owner is entitled to show the availability of his property for any and all purposes to which it is plainly adapted, or for which it is likely to have value and induce purchases. Arkansas State Highway Commission v. Brewer, 240 Ark. 390, 400 S. W. 2d 276: Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495; Gurdon & Ft. Smith R. Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019. The same considerations are to be regarded as in a sale between private parties. Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440; Little Rock & Fort Smith Railway v. McGehee, 41 Ark. 202.

Appellees also offered the testimony of Lloyd Pearce, a realtor with 14 years’ experience as a real estate appraiser. He described a 10-acre lake on the property and a dam which held water on some 35 to 40 acres thereof. He recognized that these lakes had a potential for fish farming. He considered that the highest and best use of the lands was for agricultural purposes with a potential for rural homesites and commercial fish farming. His opinion was that the fair market value of the whole tract Avas $52,400 and of the remaining lands, $35,300, leaving a difference of $17,100 or $5,100 more than the jury verdict.

Appellant’s argument that Pearce’s value testimony is not substantial is difficult to follow. He was the first witness called. Our attention is not directed to any objection to his testimony or the basis therefor made during the trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Delta Regional Airport Authority v. Gunn
386 S.W.3d 693 (Court of Appeals of Arkansas, 2011)
Central Power & Light Co. v. City of San Juan
962 S.W.2d 602 (Court of Appeals of Texas, 1998)
Arkansas Power & Light Co. v. Melkovitz
668 S.W.2d 37 (Court of Appeals of Arkansas, 1984)
Ozark Gas Transmission Systems ex rel. Ozark Gas Pipeline v. Barclay
662 S.W.2d 188 (Court of Appeals of Arkansas, 1983)
Arkansas State Highway Commission v. First Pyramid Life Insurance
602 S.W.2d 609 (Supreme Court of Arkansas, 1980)
Arkansas State Highway Commission v. Cash
590 S.W.2d 676 (Court of Appeals of Arkansas, 1979)
Arkansas State Highway Commission v. Lemley
497 S.W.2d 680 (Supreme Court of Arkansas, 1973)
Arkansas State Highway Commission v. Jensen
489 S.W.2d 5 (Supreme Court of Arkansas, 1973)
Arkansas State Highway Commission v. Southern Development Corp.
469 S.W.2d 102 (Supreme Court of Arkansas, 1971)
Arkansas State Highway Comm'n v. Bane
464 S.W.2d 603 (Supreme Court of Arkansas, 1971)
Arkansas State Highway Comm'n v. Lemley
464 S.W.2d 605 (Supreme Court of Arkansas, 1971)
Arkansas State Highway Comm'n v. Highfill
452 S.W.2d 846 (Supreme Court of Arkansas, 1970)
Arkansas State Highway Commission v. Ormond
448 S.W.2d 354 (Supreme Court of Arkansas, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
448 S.W.2d 354, 247 Ark. 867, 1969 Ark. LEXIS 1195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arkansas-state-highway-commission-v-ormond-ark-1969.