*1 Chancery registry of. the Charleston Court the District the sum . . to be held . deposit guarantee payment a cash bond state damages, any, if occasioned these defendants’ damages, any, paid mandatory are not if such decree, pro- proper in the manner and as after ascertained by law.” vided ordinary injunction an but it bond,
This was not specific Highway If was on a condition. Commission bad dissatisfied with the condition it should have been appealed agreed, case. Instead, cross first deposit; having cannot made the now be heard —after Bollingers feeling security say lulled the into a —to Highway that their claim If is barred. Bollinger was dissatisfied with the allowance County claim in the Court, Commission should have appeal the claim resisted to the Circuit Court. indirectly County Commission cannot now attack the Court allowance. Chancery
"We therefore conclude that decree hereby be, should and is, affirmed. Highway
Ark. State Commission v. Cochran. 5-1834 2d 733 327 S. W.
Opinion September Delivered 21,
[Rehearing denied October 1959] *2 W. B. Thrasher, Dowell Anders <& Wendell Hall, for appellant. McCray, Mehaffy,
Ben M. by: Smith & Williams B. appellee. Ben Allen, for George proceeding by J. is a This Smith, Rose
Highway Commission to condemn 2.038 acres of land, by appellee owned parcel Cochran. The con- part demned is of a tract, three-acre all of which is sub- ject to a mineral lease executed Cochran to the other appel- appellee, Company. fixed the & The compensation owner- for Cochran’s $10,140.00 lees’ ship Hogan’s interest lessee. as contends are excessive verdicts during rulings that erroneous were made trial. mining lease authorized the
latter what is referred to remove the three acres “select material,” was to re- Cochran yard. ceive a of ten cents Select material porous ais sand is used and other road paved highways. in the construction Ex- contractors ploratory drilling upon the tract shows that average twenty-one depth select material to an exists throughout Upon feet the three acres. this basis the *3 appellees’ deposit being witnesses estimated the as total yards, yard 101,400 cubic which ten a cents be worth $10,140.00 to Cochran. the exact Since is amount of the verdict awarded Cochran it to is evident jury accepted appellees’ testimony as being true. particular ap-
In the circumstances of this case pellees’ proof competent. general As a rule the market value of a tract of land cannot be determined simply by estimating the amount of or other min- stone multiplying eral that it contains and then that estimate price per Orgel, a fixed unit. Valuation Emi- Under (2d Ed.), nent Domain § 165; Cox, Hollister v. 131 Conn. 523, 41 A. 2d 156 93, A.L.R. 1412. But it has been correctly pointed testimony out that re- should be already when, ceived as here, the owner has leased the property per yard for rental. of Evi- Winner, Rules dence in Eminent Domain 13 Ark. L. Cases, Rev. testimony
Here there is would have mined and used the material if Cochran select keep had been allowed to the land. In view of this evi- appellees’ computations dence the of value were admis- sible. regard falling
We do not this case within principle required pay that a condemnor not should be to price an enhanced demand its alone has created. 884 Land, Ark., D. C. v. 620 Acres States United See Authority, Hoy Turnpike Supp. 686; v. Kansas
P.
example,
Hoy
In the
case,
We support ownership in excess an award does judg- figure have mentioned. we $6,904.70, condition that in that amount on ment is affirmed cal- entered within seventeen remittitur of the he excess judgment days; he reversed and will endar otherwise the a new trial. the cause remanded for Hogan’s verdict contention that The Commission’s insistence down to an excessive narrows produced competent whatever to no evidence may the outset It observed establish its loss. Hogan conveyed an interest the title to the lease to mineral though have the lessee did not
land, even Louisiana v. Oil Well mineral itself. Standard Oil Co. of Quality Salvage 360; Co., 281 W. Coal 170 Ark. S. note, 756; 2d case Guthrie, 433, 157 203 Ark. S. W. Co. question whether L. Eev. 186. The Ark. any worth of its about the offered admissible interest. easy material is not to find. said,
As we have price, market have an established It does not seem to according proximity road to its value varies as its *5 Hogan projects. had been In instance construction this used contracts and would have extensive road awarded highway of the in the construction the select material Hogan It shown with- build. that had hound itself to
886 sup- that known
out contradiction the nearest alternative ply of is near Bauxite would involve hauling amounting $34,476.00. increased costs On to Hogan’s one basis witnesses testified that interest of its in the Cochran lease had a market value of $34,476.00; jury, only but the $2,127.50. as we have of seen, made an award opinion the that We are of the evidence is sufficient support to timony verdict. The no tes- offered dispute proof Hogan’s
to value of depends upon material project, its nearness to construction implies manifestly transportation important plain enough costs are factor. an It seems Hogan’s depends that the value interest leasehold large upon comparative expense extent compelled be involved if were to find another performance source of material for the contracts. its improvements In a recent case we held cost of necessary by taking part made property of the landowner’s proper jury’s
is a item for the consideration, though even that cost itself the true measure of damages. Highway Speck, Ark. State v. Comm. ques- Ark. 712, 324 S. 2d 796. W. Here the ultimate jury Hogan’s tion for the was the fair market value- of leasehold interest, and that issue was submitted to the jury through challenged. instructions that are not Even though transportation increased costs are not themselves damages regard the measure in a case kind we proper jury evidence as aid to in its effort to determine the market value of lease.
The Commission also insists that the court erred in permitting separate return verdicts for the Cochran and interests land, but this con- rejected tention Highway in Ark. State Comm. Fox, 230 Ark. 2d S. W. judgment favor is affirmed. dissent. JJ.,
Holt Ward, dissenting. Paul Ward, Associate Justice, care- After ful reflection I am forced to the conclusion that major- *6 that respects in several ity erroneous opinion rise up will probably sanctioned therein of evidence rules to haunt court. hereafter to an award to
As Cochran. approved The majority testimony The on Cochran in amount of $6,904.70. opinion was also the this award based and majority itself show that it arrived at ascertain- conclusively ing the of cubic contained in two acres of yards number ground twenty-one at an and then average depth feet — figure by that ten multiplying (cents) price per obvious, course, It is that in order to arrive at the yard. above cubic yards number of walls of the gravel pit — dug straight have to be down with a perpendicu- — lar bank excavation, for the entire of the depth is, twenty-one course, This, plain physical feet. is just impossibility. it is Fortunately in necessary this case to rely ‘‘ ’’ on
solely obvious in there the record to support my contention of error. Two in witnesses state substance that it was impossible excavate sand and — — gravel or the materials here to a considered depth of twenty-one feet with perpendicular walls, but that it was necessary on a slope excavate of one to one- and-one-half. By they method arrive mathematically at much less than the 69,047 yards cubic in as set forth opinion. Appellees’ own witness sub- majority stated stance that could not you excavate with perpendicular sides because the material when wet would dissolve like I sugar. am, therefore, forced to conclusion there is no substantial evidence on which the could award Cochran ten cents per cubic yard
select material.
Under I these circumstances would on fall back the old well-established rule Cochran’s damages in this case are the difference between the value of the property before the taking and the value after the taking. only The testi- mony introduced the record of this nature was highest two of appellant’s witnesses. placed one damages $6,450.00 after taking into consider- ation the value of market the select material. Therefore,
I would affirm as to Cochran for the latter amount in the event of a remittitur. authority I the best find
Moreover, have been able to support determining- does not damages majority’s method of *7 — by multiplying yards by that is a cubic stated price per yard. Highway v. See Reiter State Kansas, 177Kansas 281 P. trial 1080, 2d where the permitted questioned appellate court the evidence and the “ stating: court reversed, ... the rate should have been in admitted evidence”. in the case of Also, United States ex rel. T.V.A. Indian Creek Marble Com pany, Supp. “Fixing compensa 40 F. it 811, was said: just bj7-multiplying tion for land taken the number of cubic yards given price by per feet or or tons a unit has met with disapproval almost uniform of the courts”. The court “ proper further said: It was not at to arrive a value of land by taking quantity condemned mul such of sand and tiplying by royalty yard by per it either rate or multi plying quantity by price currently bring was sand ing per yard”. “royalty” The reason for the rejecting speculation. rule is that it is based on It is well settled opinions our that value must be fixed the time taking by exactly impossible and it State is to tell how many of material will until it is be utilized extracted from the earth. That fact is well demonstrated Appellees’ in the case under consideration. witness stated part “pit” of Cochran’s could not be used because presence heavy equipment. of develop of so much Also, it could up some the material would not be to stand ard. Hogan. reasoning applies
toAs The same applies Hogan. claim of Cochran to the case More- by Hogan proper over, introduced brought relevant then the should have in a verdict in favor of in the amount of $34,476.00, because the undisputed testimony appellee establishes that amount. If sincerely is accord with the rule followed majority opinion, why then it is hard to understand it has not asked the trial court and this court for directed verdict for that amount. Hogan’s
Again, on based estimate hauling gravel from from Bauxite rather than fact that in pit, haul it it an extra distance was forced to proposition. In of about miles. Let’s examine four place pure as to conjecture the first where material pit It must fol- the Cochran would have been used. Hogan’s reasoning, low, under line therefore, damages depended on used where he the material. Based reasoning, Hogan might on such have claimed that he had damage to haul it six seven and his or miles further correspondingly larger. proves have been This conclusive- ly again Hogan’s damages could not cal- have been (under rule) taking majority culated at the time of the by the State. interesting apparent might inequities
It is to note what have resulted this case the majority under rule. The *8 paid approximately record indicates Cochran $500.00 parcel question only years for the of land in a few before litigation began. Under the allowed be Highway Department introduced into record the Could pay have been forced to more than $44,000.00for two- property, might thirds of Cochran’s and, shown it above, pay have been forced to even more. The reflects record paid Hogan hauling that the State, under contract, its for from material and it Bauxite, shouldn’t forced to pay thing again. him for same gather Hogan
I from the entire record that suffered taking no loss reason of the of the said acres two agree my prevent land. I do view would him from making profit by securing a handsome virtue of his lease from to but I Cochran do not think the State should have profit. paper him for
reimburse the loss land of before-and-after-taking Under time tested rule, paid when total the State Cochran market value his (including paid material) two land acres of the select possessed. Any for all the value the land rule that forces pay wrong impractical. more is State and guarantee any didn’t could take nothing he land, his knew could take words, the State took the land. In other took free gamble profit expense and he on a State’s neat should lose.
Judge Holt in this dissent. joins Milling
Cargill, Thibault Inc. Co. 2d 362 5-1857 S. W. Opinion September Delivered
[Rehearing 23, 1959] denied November MeHaffy, appellant. Williams, Smith & for n & Wright, Upton, appellee. Lindsey Harrison, July Paul Ward, Associate Justice. On 26, 1955, appellee, Milling placed Company, Thibault an order appellant, Cargill, Incorporated, with bushels agreed of corn. There was written but it no contract parties by appellee acceptance all that the offer *9 by appellant did constitute the essential terms contract, price of which were follows: as $1.66 grain bushel delivered Little Bock and the was to be “shipped Chicago” July from than later seems that in It the normal course of events the carload August should have arrived in Little Bock than not later actually days the 7th. It arrived from five to seven later appellee accept ship- at which time refused to attempts compromise ment. all After had failed, appellant grain price per sold the brought at the bushel, $1.44 and then action to recover the loss appellee. Judge, sitting The trial the Circuit before jury, judgment appellee. resulted in a in favor of the