The opinion
Steele Hays, Justice, dissenting. 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. § 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. § 4651 , to which the majority opinion makes general reference.
Act 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:
Appellant 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, § 27.25[1] (1979). 1 [My emphasis.]
That 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 (“ordinarily”) 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.
Nor is a different course dictated by § 4651. The provisions of § 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 § 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.
Arkansas 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:
I 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.
Chief 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:
From 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: “If 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.” 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’s opinion against the condemner’s evidence, and would therefore amount to a comment upon the weight of the evidence, which is forbidden under Arkansas practice.
The same concerns expressed in Chief Justice Harris’s 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):
The purpose of a pre-condemnation offer under [§ 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’s 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.
I 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.
The cited treatise reads: “Because the amount deposited is only tentative and may be increased or diminished by the final judgment. . .[.]”