# Arkansas State Highway Commission v. Lemley > Supreme Court of Arkansas · June 25, 1973 · 254 Ark. 724 URL: https://www.frixlaw.com/law-library/cases/7819214 ## Case - **Full name:** ARKANSAS STATE HIGHWAY COMMISSION v. W. F. LEMLEY - **Court:** Supreme Court of Arkansas - **Decided:** June 25, 1973 - **Citations:** 254 Ark. 724; 497 S.W.2d 680; 1973 Ark. LEXIS 1587 - **Precedential status:** Published - **Opinion:** Dissent by Fogleman - **Judges:** Brown, Fogleman, Holt, Jones - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7819214 ## Opinion text John A. Fogleman, Justice, dissenting. I find it necessary to dissent, for a second time, from a reversal of this case and from its fourth remand for a fifth trial to determine just compensation for a taking on September 29, 1966. The four verdicts by different juries have fixed the landowner’s recovery at $13,000, $12,000, $14,500 and $15,000. See 247 Ark. 201 , 444 S.W. 2d 692 ; 250 Ark. 186 , 464 S.W. 2d 605 ; 252 Ark. 549 , 479 S.W. 2d 855 . We held on the first appeal that the testimony then before the court was insufficient to show a unity of use for farming purposes between the 120 acres in Section 33 and the 40 acres of timberland in Section 34. No effort has been made in this fourth trial to recover compensation based on treatment of the non-contiguous tracts as a unit. We recognized in Lemley I that there was evidence to present a jury question on the right to compensation for deprivation of access to the tract in Section 34. I submit that on the basis of the same evidence (and the evidence was not materially different) the existence of a jury question as to whether there were compensable damages for deprivation of access is the law of the case. Bailey v. Stewart, 238 Ark. 666 , 385 S.W. 2d 20 ; Ford Motor Company v. Fish, 233 Ark. 634 , 346 S.W. 2d 469 , and cases cited therein. In Lemley II this court ruled adversely to appellant on its points 3, 6 and 8, upon the basis that our holding on the first appeal had become the law of the case. They were: 3. The trial court erred in refusing to strike that portion of Mr. Jackson’s testimony as to the east 40 acres of land on the basis that this is a separate tract of land; that there was no taking from this portion of land; and that any impairment of access to a separate tract would not be compensable. 6. The trial court erred in refusing to strike Mr. Barnes’ testimony with respect to damages to the separate tract. 8. The trial court erred in giving appellees’ requested instructions A and B. Barnes’ testimony as to damages to the 40-acre tract at the third trial is not materially different from that given by him on the second trial. Both times he valued the 40 acres at $4,800 before the taking and $1,200 after. This court found error only in Barnes’ means of arriving at the value of remaining lands in the 120-acre tract. He did not use the disapproved means of valuing the residual tracts from the sundered 120-acre tract on this occasion. The reversal in the second appeal was not based in any respect on application of the language quoted in the majority opinion to testimony relating to the 40-acre tract. The only material difference in Barnes’ testimony at the last trial was his reliance upon what he called the “market data” approach and his checking his opinion by an income approach based upon estimated soybean production. The instructions complained of in Lemley II were those which submitted to the jury the questions whether the 40 acres were damaged by destruction or impairment of access, and if so, the amount of damage measured by the difference in value before and after the taking, giving consideration to the uses to which the land was put or for which it was reasonably suitable. It should be noted that this court also applied the law of the case on the second appeal in rejecting appellant’s contention that the testimony of Judge Tom Scott, also a witness at the fourth trial, as to the cost of restoration of access should not have been admitted. One premise of my present dissent is the same as I expressed in Lemley II. On that appeal, appellant challenged the action of the trial court in refusing to strike the landowner’s before-the-taking value testimony and his resulting damage testimony, arguing that he gave no substantial evidence upon which to predicate his land values. Virtually the same attack is made on virtually the same testimony on this appeal. In the prior appeal, we found no merit in appellant’s contention. Consequently, attempted rationalization of the testimony of Jackson is not only unnecessary, it is precluded. Furthermore, Jackson did not rely upon his sales to a potential condemnor, as he he did in Lemley III, as a basis of his value testimony. In my dissent in Lemley II, I pointed out that no infirmities were found in Jackson’s testimony fixing the difference in value at $22,000 and that his testimony afforded support to the jury verdict without regard to Barnes’ testimony, citing Arkansas State Highway Commission v. Stallings, 248 Ark. 1207 , 455 S.W. 2d 874 , and Arkansas State Highway Commission v. Ormond, 247 Ark. 867 , 448 S.W. 2d 354 . Even though we found the landowner’s testimony in Stallings to be vulnerable to appellant’s attack, we found the testimony of appellant’s only other value witness afforded substantial evidentiary support for the jury verdict and affirmed the judgment. In Ormond, we held that the landowner’s improper value testimony was manifestly not prejudicial when the verdict was substantially less than the assessment of damages for the taking made by the landowner’s expert witness. We said that the error in not striking Ormond’s testimony obviously did not enhance the award and that the verdict was less than the amount for which there was substantial evidentiary support. The language we used in Arkansas State Highway Commission v. Rowe, 252 Ark. 59 , 477 S.W. 2d 486 , where the jury verdict was sustained by a unanimous court is so appropriate here that I take the liberty of quoting: We also have cases where the substantial nature of the testimony of a particular witness has been attacked, and we have agreed that the evidence complained of was not substantial, but we have then pointed out the testimony of other witnesses that did meet the test of substantiality, fully supported the verdict, and affirmed the judgment. Arkansas State Highway Commission v. Coffman et al., 247 Ark. 302 , 445 S.W. 2d 92 . Here it seems obvious to me that Barnes’ testimony fixing the amount of compensation at $13,000 did nothing to enhance the award of $15,000 and that Jackson’s figure of $22,000 furnished ample evidentiary support for that verdict. Manifestly, any error in admitting, or failing to strike, Barnes’ testimony was not prejudicial. A further premise for my dissent is my disagreement with the majority as to the admissibility and substantiality of the Barnes testimony. I really don’t understand how the majority can say that the matter upon which its opinion is based was argued by appellant. The only argument advanced by appellant is that comparable sales are indicators of value where there are no sales of identical property and that the opinion of this expert should be rejected because it was not substantiated. If the majority is basing its position on this argument, then it seems that its opinion must be construed as saying that the testimony of Barnes was not substantial or that it should have been stricken because it was not supported by testimony relating to comparable sales. If this is the case, then this jury verdict is a victim of the “comparable sale” syndrome which has stricken other verdicts. There are, and, I submit, will continue to be cases where there simply are no reajly comparable sales, and, of necessity, the opinion of a properly qualified expert must be admitted upon the basis of his familiarity with the property involved, its highest and best use, the real estate market generally and any factors which might influence the hypothetical willing buyer and willing seller in negotiating a selling price. We have recently held that it is not always necessary that the opinion of a qualified real estate expert be supported by comparable sales to be admissible or to constitute substantial evidence, at least where comparable sales are not to be found, particularly when the lands involved are unimproved and unproductive. Arkansas State Highway Commission v. Steen, 255 Ark. 908 , 489 S.W. 2d 781 . Barnes’ -qualifications are not questioned by appellant, who omitted abstracting his testimony on that score on the premise that they were well known to this court. Barnes described the tracts in detail enumerating advantageous features and pointed out the various factors which made them less desirable after the taking than before. He described the character of the soil and the topography and expressed the opinion that all the lands were suitable for row crops, specifically soybeans. He stated that even though the 40-acre tract was woodland, its highest and best use was agricultural and that any informed purchaser would so consider it. He testified that there was no specific sale to which he could attribute specific similarity as a basis for valuation of the woodland on both tracts, but that he referred to “market data” he had accumulated on at least fifty transactions in the vicinity, and arrived at his value by a study of them. They included some woodland sales ranging from $45 per acre to more than $100 per acre prices. He refused to classify these lands as woodland, however, because he considered their highest and best use to be for agricultural crops, as the land on three sides of the 40-acre tract was being used. According to Barnes, his “market data” approach is recognized by the American Institute of Real Estate Appraisers, and is to be used when there is no really comparable sale. Barnes’ income approach, condemned by the majority, was not the basis of his opinion at all. On redirect examination it was. shown that this approach was used only as a check on his appraisal based on the market data approach. Barnes had previously testified, apparently without objection, that the soil was capable of producing 30 bushels of soybeans per acre and that these beans were selling for $2.50 per bushel in 1966. Barnes himself acknowledged the weakness of this approach for appraisal purposes, but demonstrated that upon the basis of production of similar lands, income could be capitalized to show a value of $312.50 per acre. It stands to reason that a prospective purchaser would consider the factors mentioned by Barnes. I humbly submit that the majority has not addressed itself to the arguments advanced on appeal, but has weighed the Barnes testimony rather than determining its admissibility or substantiality. Furthermore, it has not pointed out how appellant was prejudiced by the trial court’s failure to strike this testimony, and the verdict certainly has eliminated the presumption we usually indulge. In my opinion, we have two adequate and appropriate bases to end the reruns of this case by affirming the current judgment. I am authorized to state that Mr. Justice Brown and Mr. Justice Holt join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7819214. Public record. Not legal advice.