concurring. I concur in the reversal and remand of this case. The point presented by the briefs is not difficult. Both parties agree that the Commission has taken, for highway purposes, a strip of land out of the center of 222 acres owned by the appellants. The strip taken completely severs the 222-acre tract and was taken in fee simple; however, the declaration of taking does provide access, at two separate points, from each side of the remaining tract to the highway to be constructed. Although the point is not in dispute in this case, it should be noted that the Arkansas Supreme Court has held that the “lessened accessibility” from one side to the other of severed property is a compensable element of damages. Arkansas State Highway Commission v. Wallace, 249 Ark. 303,459 S.W.2d 812 (1970). Also, in Arkansas State Highway Commission v. Marshall, 253 Ark. 212, 485 S.W.2d 740 (1972), where the Commission took 31.7 acres in fee simple from a 60-acre tract leaving four residuals of 5 to 15 acres each, the court said that the lands were taken to construct a controlled-access highway facility which impaired the access rights of abutting landowners and noted it had said in a previous case that the right of access is a property right for which the owner cannot be deprived without just compensation, and the court specifically refused to reconsider its position on that issue.
The only question presented by the parties in this case is whether the appellants’ requested instruction, set out in the majority opinion, should have been given to the jury. The appellee’s contention is that the instruction is wrong at the point where it says that appellants “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 appel-lee’s argument is that the appellants do have a legal right of access from their abutting land, “not based on the whim of proper authority in the Highway Department” but on the official plans of the Department filed in the trial court. Also, appellee says the instruction did not tell the jury that if the access given by the plans were “revoked” the appellants would have a new cause of action.
I think the majority opinion is clearly correct in holding that the trial court erred in refusing to give appellants’ requested instruction. What the appellee really says is that the trial court did not err in refusing to give the instruction because the instruction is not a complete statement of all the law. It has been recognized that “it is generally impossible to state all the law in one instruction,” Williams v. Cooper, 224 Ark. 317, 321, 273 S.W.2d 15 (1954), and that it is not error to refuse to give an instruction when the subject is covered by other instructions given, Hopper v. Denham, 281 Ark. 84, 88, 661 S.W.2d 379 (1983). However, in the present case, there was no instruction given by the court dealing with the issue of the Highway Department’s right to change the points of access to the controlled-access facility. In view of the fact that Ark. Stat. Ann. § 76-2203 (Repl. 1981) allows controlled-access facilities to be altered under certain conditions and that the Supreme Court of Arkansas has held that “lessened accessibility” from one side to the other of property severed by a highway is an element of damages, and that the access of abutting landowners to a highway constructed across their land is a property right that cannot be taken without just compensation, I think the jury was entitled to know that it was possible for the appellants’ access to the highway to be changed. In my view, it was the appellee’s responsibility — not the appellants’ responsibility — to request the instruction about the right to bring a new cause of action if the existing access points are changed.
The dissenting opinion raises some questions not raised by the appellee. It suggests the appellants’ requested instruction was not completely correct. Indeed, it suggests that it was misleading and not “impartial, and free from argument.” However, even if any of these suggested defects are valid, they could have been eliminated if the appellee had requested an instruction to tell the jury that the appellants would have the right to bring a new cause of action if the existing access points were changed. But the Arkansas State Highway Commission does not argue that the appellants’ instruction contained these suggested defects. Based on what the Commission thought proper to contend in this case against citizens whom it serves, I agree that the judgment in this case should be reversed and remanded.