dissenting. Today we discover error where none exists, and return this case to the circuit judge to retry it before another jury. The instruction which we require to be given on retrial is neither necessary nor appropriate.
The landowners’ requested instruction is set out in the majority opinion. It is a combination and rephrasing of parts of three statutes. The majority decision is based on the premise that, in an adversary proceeding, each side is entitled to present its theory of the case to the jury by way of instructions. It accurately identifies the landowners’ theory of the case, i.e., that they were entitled to compensation for denial of the right of access to the new highway. The problem is that the landowners’ theory of the case is wrong, as a matter of law.
It is true that when a controlled access highway is built over an existing road to which the abutting landowner had access, the landowner is entitled to compensation for the loss of access brought about by the change. See 3 Nichols, The Law of Eminent Domain § 10.2211 [2], at 398 (Rev. 3d ed. 1985), and Arkansas State Highway Commission v. Kesner, 239 Ark. 270, 388 S.W.2d 905 (1965). It is also true that the lessened accessibility from one side to another of severed property is a compensable element of damages. Arkansas State Highway Commission v. Marshall, 253 Ark. 212, 485 S.W.2d 740 (1972). But where an entirely new limited-access highway is built and there is no loss of access to a prior existing highway, the landowner is not entitled to compensation for the loss of access to the new highway. The state should not have to compensate the owner for the loss of a right of access which he never had. See Clarke, The Limited Access Highway, 27 Wash. L. Rev. 111, 122 (1952).
The Wisconsin Supreme Court clearly stated the distinction in Carazalla v. State, 269 Wis. 593, 71 N.W.2d 276 (1955) (opinion on motion for rehearing):
[T]he limiting of access to a public highway through governmental action results from the exercise of the police power, and that in the case of a newly laid out or relocated highway, where no prior right of access existed on the part of abutting land owners, such abutting land owners are not entitled to compensation. On the other hand,. . .where an existing highway is converted into a limited-access highway with a complete blocking of all access from the land of the abutting owner, there results the taking of the preexisting easement of access for which compensation must be made through eminent domain.
269 Wis. at 608B, 71 N.W.2d at 278.
The denial of access to a new freeway does not amount to a taking, and every state which has considered this issue has so held, with the possible exception of Alabama. See Stoebuck, The Property Right of Access Versus the Power of Eminent Domain, 47 Tex. L. Rev. 733,740 (1969). See also 3 Nichols, The Law of Eminent Domain § 10.2211 [4] at 402.9.
Another equally serious difficulty with the offered instruction is that it tells the jury that the highway department can revoke its grant of limited access to the highway at “any time in the future as conditions may require” without telling the jury that this would give rise to a new cause of action for the landowners. The jury might well have inferred from the instruction that they ought to compensate the landowner in this trial for the possible revocation of access rights in the future. Arkansas State Highway Commission v. Arkansas Real Estate Co., Inc., 243 Ark. 738, 421 S.W.2d 883 (1967), lends no support to the majority’s decision. Although the supreme court there approved the giving of a definition of a controlled-access highway in the language of the statute, the instruction included the language that the landowners would have a new cause of action should the commission change the highway in the future so as to damage them. Because the instruction in the case at bar was incomplete, it was misleading. It is not error to refuse to give an offered instruction which is incomplete. Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W.2d 304 (1948). Nor is it error to decline to give a misleading instruction. Arkansas State Highway Commission v. Lewis, 258 Ark. 836, 529 S.W.2d 142 (1975).
The landowners may have sought this instruction because of the persistent argument by the highway commission that this was a “partially controlled-access” highway. The landowners are correct as matter of law that under Ark. Stat. Ann. § 76-2202 (Repl. 1981) this is a “controlled-access facility.” But assuming the landowners were entitled to have the court give the statutory definition of a controlled-access facility, they may not complain of the court’s failure to give the defining instruction, because the instruction they offered was clearly wrong. Dodson Creek, Inc. v. Fred Walton Realty, 2 Ark. App. 128, 620 S.W.2d 947 (1981).
The case at bar bears some similarity to State v. Frost, 456 S.W.2d 245 (Tex. Civ. App. 1970). Frost was an eminent domain case in which the landowner requested, and the trial court gave, an instruction, apparently in statutory language, telling the jury of the highway commission’s legal authority to restrict access to a controlled-access highway and to deny access in the future.
The Texas court of civil appeals said:
[W]e feel that the trial court’s giving of instruction number 5 to the jury is reversible error, and so confused and abridged the appellant’s position in this case that a new trial is required. . . . [T]he instruction would lead the jury to award non-compensable damages under the police powers and the laws of the State. . . . The jury might logically have believed that access was then being taken away by the State Highway Commission, and that damages should be assessed accordingly. ... Of course, Sec. 2 of said statute above, does empower the Highway Commission to alter or deny access except at specific points designated by the Highway Commission, but right of compensation of the landowner is given if and when such powers are invoked. There is clearly no requirement that such powers ever be exercised.
456 S.W.2d at 256.
The adoption of the Arkansas Model Jury Instructions for civil cases provides guidance for the trial courts in many areas. Eminent domain is one of the areas of the law which is not covered by AMI. The supreme court has directed that when instructions must be used which do not appear in AMI they shall be “simple, brief, impartial, and free from argument.” Twin City Bank v. Isaacs, 283 Ark. 127, 672 S.W.2d 651 (1984). The offered instruction was not impartial.
Finally, the instruction was abstract and therefore need not have been given. Arkansas State Highway Commission v. Lewis, 258 Ark. 836, 529 S.W.2d 142 (1975).
For the reasons stated, I respectfully dissent. I am authorized to state that Judge Cracraft joins in this opinion.
Cracraft, J., joins.