Appellants, Larry R. Williams and his wife, Karen R. Williams, appeal a Howard County jury verdict of $50,000 for the condemnation in fee of twenty acres of land owned by appellants and taken by appellee, Arkansas State Highway Commission. We reverse and remand.
Appellee condemned twenty acres of a 222-acre tract owned by appellants for the relocation of Arkansas State Highways No. 4 and No. 27 around the southeast area of Nashville, Arkansas, commonly known as the “Nashville Bypass.” Before the taking, the 222 acres fronted Arkansas State Highway 4 on the north and Arkansas State Highway 27 on the west. The area acquired by appellee ran north and south almost in the middle of the 222-acre tract. After the taking, the property retained its highway frontage, and gained frontage on the new bypass with four access points on both the east and west sides of the facility. This was in keeping with the specifications contained in appellee’s Declaration of Taking and right-of-way plans filed in this action. Witnesses for the landowners testified to damages ranging from $403,000 to $423,000, whereas appellee’s testimony alleged damages in the amount of $43,500.
The only issue raised by appellants is whether or not the trial court erred in refusing to instruct the jury as follows:
DEFENDANTS’ [APPELLANTS’] INSTRUCTION NO. A
You are instructed that the Arkansas State Highway Commission is taking the Williams’ property for a controlled-access facility as defined by Arkansas law. A controlled-access facility as defined in Arkansas Statutes Annotated Section 76-2202 by law is “. . . a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right of easement, or only a controlled right of easement of access, light, air or view, by reason of the fact that their property abuts upon such controlled-access facility or for any other reason.” As a matter of law, the Williams have no legal right of access to the controlled access facility from their abutting land other than by permission of the Arkansas Highway Department. The Arkansas Highway Department can permit access to the highway only at certain locations designated in the plans filed in this case with the declaration of taking. The Arkansas Highway Department can revoke permission any time in the future as conditions may require. Arkansas Statutes Annotated Sections 76-2202, 2203, 2204.
Appellants’ assignment of error is founded upon their argument that the jury was entitled to an instruction defining a controlled-access facility. They state the jury was entitled to know their property was condemned as a controlled-access facility and that appellee took all rights of ingress and egress with the exception of certain access points. Appellants argue the above proffered instruction correctly defines a controlled-access facility and sets forth the governing law. They state that right of access is a property right which a landowner cannot be deprived of without just compensation.
On the other hand, appellee contends that appellants have a legal right of access from their abutting lands to the bypass, and that right is not based upon the whim of the Arkansas State Highway Commission. Appellants’ right of access rests upon appellee’s official plans filed with the court. Appellee argues appellants’ instruction was misleading in that it informed the jury appellee could revoke permission of the access at any time. The proffered instruction did not inform the jury that appellants would have a new cause of action if appellee revoked its permission. Appellee points out in its brief that there was never a controversy at trial as to the access points contained in its plan nor was there a contention on appellants’ part that the facility was not constructed in accordance with the plan.
Arkansas Statutes Annotated § 76-2202 (Repl. 1981) defines a controlled-access facility as follows:
A controlled-access facility is defined as a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement, or only a controlled right of easement of access, light, air or view, by reason of the fact that their property abuts upon such controlled-access facility or for any other reason. Such highways or streets may be freeways open to use by all customary forms of street and highway traffic; or they may be parkways for [from] which trucks, buses, and other commercial vehicles shall be excluded, [emphasis added].
The record in the case at bar as abstracted reflects that the jury was not instructed by the trial court on the definition of a controlled-access facility. We believe the above emphasized language of § 76-2202 refers to and includes a partially controlled-access facility.
Both parties to this litigation cite us to the case of Arkansas State Highway Commission v. Arkansas Real Estate Co., Inc., 243 Ark. 738, 421 S.W.2d 883 (1967), wherein the Arkansas State Highway Commission condemned a right-of-way in fee simple for a controlled-access highway across the landowners’ property. The Highway Commission proffered an instruction defining a controlled-access highway in the language of the statute and stating that the highway had been constructed in accordance with certain plans on file with the highway department. The instruction further stated that if the Commission should in the future change the highway in such a way as to damage the landowners, the landowners would have a new cause of action. The landowners contended that this instruction was not perfectly drawn insofar as the record did not justify the court in telling the jury unequivocally that the controlled-access facility had been constructed in accordance with the plans. The supreme court reversed, holding that the substance of the proffered instruction should have been given. The court pointed out that in view of the necessity of a new trial, the Commission, upon proper proof, would be entitled to a correctly worded charge on the point.
This court stated in Dodson Creek, Inc. v. Fred Walton Realty Co., 2 Ark. App. 128, 620 S.W.2d 947 (1981), that a litigant is entitled to have his theory of the case submitted to the jury and that it is the duty of each litigant to prepare and request a correct instruction embodying it. We further stated that a trial court is not required to give an instruction which needs explanation, modification or qualification.
We believe appellants’ proffered instruction should have been given in the instant case because it was a correct statement of the law as embodied in case law and statutory authority. It was a clear expression of appellants’ theory of the case, and it needed no explanation, modification or qualification. Under the facts of the case at bar, there was no controversy as to whether the facility had been built according to the Highway Commission’s plans and specifications; therefore, it would seem that the Highway Commission, upon request, and in addition to the instruction proffered by appellants, would have been entitled to express their theory of the case utilizing language found in Arkansas State Highway Commission v. Arkansas Real Estate Co., Inc., supra, instructing the jury that if the Commission should in the future change the highway in such a way as to damage the landowners, the landowners would have a new cause of action.
Accordingly, we reverse and remand for a new trial.
Mayfield, J., concurs. Jennings and Cracraft, JJ., dissent.