dissenting. The circuit judge’s instructions to the jury were entirely correct and afford no ground for reversal.
Appellant’s proffered instruction number seven was AMI 202, the general instruction on burden of proof:
A party who has the burden of proof on a proposition must establish it by a preponderance of the evidence, unless the proposition is so established by other proof in the case. “Preponderance of the evidence” means the greater weight of evidence. The greater weight of evidence is not necessarily established by the greater number of witnesses testifying to any fact or state of facts. It is the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If, upon any issue in the case, the evidence appears to be equally balanced, or if you cannot say upon which side it weights heavier, you must resolve that question against the party who has the burden of proving it.
The Arkansas Supreme Court has said on a number of occasions that the landowner has the burden of proof on the issue of the value of the land. Springfield & M. Ry. v. Rhea, 44 Ark. 258 (1884); Arkansas State Highway Comm’n v. Hambuchen, 243 Ark. 832, 422 S.W.2d 688 (1968); Arkansas State Highway Comm'n v. Southern Dev. Corp., 250 Ark. 1016, 468 S.W.2d 102 (1971). If the landowner has the burden of proving value, why then would the condemnor not be entitled to have AMI 202 given? The answer lies in the fact that the term “burden of proof’ is used in the law to mean two quite different things. It may refer to the “burden of persuasion” (or “risk of non-persuasion”), or it may refer to the burden of going forward with the evidence (“the production burden”). This distinction was made at least as early as 1898 by Professor James B. Thayer and is explained in elementary text books on civil procedure. See Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure § 7.5 et. seq. (3d ed. 1985). We have recognized the distinction in another context. See Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988).
The landowner in an eminent domain proceeding has the burden of going forward with the evidence. He is entitled to open and close the argument. Rhea, supra, at 264. He must put on his evidence first and should he offer no evidence at all he would no doubt be subject to the entry of a directed verdict and would have judgment only for the amount deposited in the registry of the court by the condemnor. These are matters addressed to the court not the jury. James & Hazard, supra, § 7.7. It is in this sense that the landowner has the burden of proof.
The burden of persuasion, however, is dealt with in instructions to the jury such as AMI 202 which tell the jury how to resolve an issue if the evidence on that issue is equally balanced. See James & Hazard, supra, at § 7.6. To put the burden of persuasion on the landowner on the issue of damages in an eminent domain case would be to tell the jury to set damages at the amount testified to by the condemnor’s witness when the evidence on each side weighs equally. Surely in such a case the jury may set the damages somewhere in between the value testified to by the opposing experts. See L.R. Junction Ry. v. Woodruff, 49 Ark. 381, 5 S.W. 792 (1887).
The failure to observe the distinction between the two meanings of “the burden of proof’ has aptly been said to lead to “hopeless confusion.” See James & Hazard, supra, at 314.
Nichols says that the majority rule is that the landowner has the burden of proof.
From the rule that an award is [vacated] by appeal and cannot be considered by the jury in determining damages, it follows that the burden of proof of establishing his right to substantial compensation is upon the owner, even if he is defendant or respondent in the proceeding, since it is clear . . . that if no evidence were introduced by either party, the jury would have no basis upon which to fix the compensation and would be bound to award nominal damages only. [Footnotes omitted.]
5 Julius L. Sackman, Nichols’ Law of Eminent Domain § 18.5 (rev. 3ded. 1985). Although the distinction is not expressly made, it is clear enough that Nichols uses the term “burden of proof’ in the sense of the burden of going forward with the evidence.
The Conference of Commissioners on Uniform State Laws also explicitly recognized this distinction in drafting the Model Eminent Domain Code (1984). Section 903(a), addressing the burden of production, states “The defendant shall make the first opening statement, proceed first in the presentation of evidence on the issue of the amount of compensation, and make final closing argument.” As the comment to section 903 notes, “Subsection (1) is consistent with the majority view in the United States that the property owner, in an eminent domain action, has the right to open and close, and may proceed first with the presentation of evidence on the issue of the amount of compensation.”
In contrast, § 904 of the Model Code, regarding the burden of persuasion, provides that, “No party has the burden of proof on the issue of the amount of compensation.” The comment to that section states:
It seems difficult to assign an intelligible meaning to the concept of “burden of proof’ in the eminent domain context, since the pleadings are not required to allege or deny the amount of compensation claimed, and the ultimate standard of decision is the constitutional rule of “just compensation.” The amount of compensation that is “just” is essentially an objective market-established fact, although the practical difficulties of marshalling persuasive evidence of that fact are often formidable. From a realistic view, the trier of fact ordinarly is presented with varying and inconsistent opinions as to value, together with disparate supporting data; the ultimate determination necessarily reflects the weight and degree of credibility accorded to these estimates. Under these circumstances, no rational policy basis exists for assigning presumptive validity to the amount specified either in the condemnor’s offer or in the property owner’s demand, thereby requiring the adverse party to assume the burden of controverting that figure.
The Supreme Court of Ohio has said the same thing: “You might as well undertake to fit a hat to a headless man as to fit the doctrine of burden of proof to a proceeding of this character [eminent domain], which is absolutely wanting an issue to which such doctrine can be applied.” Martin v. City of Columbus, 101 Ohio St. 1, 127 N.E. 411 (1920).
Recent cases have recognized the distinction between the two meanings or aspects of “the burden of proof’ and have declined to place the burden of persuasion on the landowner. In State v. 45,621 Square Feet of Land, 475 P.2d 553 (Alaska 1970), the Supreme Court of Alaska hit the nail on the head:
In a condemnation proceeding such as the case at bar where the sole issue is determination of just compensation, procedural rules involving the concept of risk of failure to persuade are inapposite.Here the focal point of the trier of fact’s inquiry is the ascertainment of just compensation. Thus, regardless of whether the condemning agency or the property owner meets a given burden of persuasion, Alaska’s constitutional mandate requires that the owner be awarded just compensation for the property he has lost. In the usual condemnation case, the jury is confronted with conflicting opinions as to value. The jury is not faced with the necessity of finding a particular value or no value at all. As to the issue of fair market value, both the condemning agency and the property owners may produce competent evidence of the fair market value of the condemned property. Absent the production of such evidence by either party, the triers of fact will determine fair market value solely from the other party’s evidence. The burden of production facet of burden of proof, rather than the risk of non-persuasion aspect, is the more meaningful concept in the trial of a condemnation proceeding.
See also Solko v. State Roads Comm’n, 82 Md. App. 137, 570 A.2d 373 (1990) (“Condemnation cases are fundamentally different from other kinds of cases where value is concerned.”); Hamer v. School Bd., 240 Va. 66, 393 S.E.2d 623 (1990) (No ultimate risk of non-persuasion on the issue of just compensation in a condemnation proceeding); Ellis v. Ohio Turnpike Comm’n, 124 N.E.2d 424 (1955 ), rev’d on other grounds, 164 Ohio St. 377, 131 N.E.2d 397 (1955) (jury acts as an assessing or appraising board, determining the fair-market value of the property from all the evidence submitted); Morrissey v. Commonwealth Dep’t of Highways, 424 Pa. 87, 225 A.2d 895 (1967) (instructing jury that condemnees had burden of proving that their damages were greater than damages testified to by condemnor usurped power and function of jury); Unified Sewerage Agency v. Duyck, 33 Or. App. 375, 576 P.2d 816 (1978) (“Either party may provide evidence of factors which contribute to an assessment of just compensation, but neither has the burden of proof’).
The circuit court was right not to give appellant’s proffered instruction number seven and the judge’s ruling does not violate or conflict with any decision of our supreme court.
Appellant’s proposed instruction number 6 would have told the jury that the landowners had the burden of proving that they had “not [been] offered just compensation.” If the instruction is construed to mean that the landowner has the burden of persuasion, it was wrong for the reasons just stated. On the other hand, if the instruction means only that the landowners had the burden of going forward with the evidence, it may be a correct statement of law but relates to a matter addressed solely to the trial judge and is not a matter for instruction to the jury. See James & Hazard, supra, § 7.7.
The majority also holds that the trial judge committed reversible error in telling the jury that the measure of damages was the difference between the value of their land before the taking and after the taking. According to the majority the circuit court should have told the jury to award the landowners the value of the land actually taken plus the damage, if any, to their remaining lands.
Our opinion in Arkansas Louisiana Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985), adequately explains why appellant, the condemnor, could not possibly be prejudiced by the failure to give an instruction which draws the jury’s attention to severance damages as a separate element of damages. But apart from James, the supreme court has made it fairly clear that in a “partial taking case” the two instructions at issue here are merely different versions of the same rule; they offer “alternative formulas” to arrive at just compensation. See Young v. Arkansas State Highway Comm’n, 242 Ark. 812, 415 S.W.2d 575 (1967); Arkansas State Highway Comm’n v. Morris, 244 Ark. 1152, 1155, 429 S.W.2d 114, 116 (1968) (Brown, J., concurring). The court should not give both instructions. Young; Morris, supra. But the instruction given by the judge here has been approved expressly or impliedly by the supreme court in partial taking cases. Arkansas Louisiana Gas Co. v. McGaughey Bros., 250 Ark. 1083, 468 S.W.2d 754 (1971); Arkansas State Highway Comm’n v. Delaughter, 250 Ark. 990, 468 S.W.2d 242 (1971); Arkansas State Highway Comm’n v. Stallings, 248 Ark. 1207, 455 S.W.2d 874 (1970); Clark County v. Mitchell, 223 Ark. 404, 266 S.W.2d 831 (1954); St. Louis, A. & T. R.R. v. Anderson, 39 Ark. 167 (1882). The drafters of the Model Code, as well as Nichols and Orgel, not only recognize the two formulas as essentially equivalent but also prefer the “before and after” rule followed by the circuit judge in the case at bar. Model Eminent Domain Code § 1002 comment (1984); 4A Julius L. Sackman, Nichols’ the Law of Eminent Domain § 14.05 (rev. 3d ed. 1985); 1 Lewis Orgel, Valuation Under the Law of Eminent Domain § 65 (2d ed. 1953). I see neither error nor prejudice in the court’s instruction on the measure of damages.
If the question were whether the landowners received more money for their property than should reasonably been awarded, I could perhaps agree. But that is neither an issue on appeal nor a stated basis for our reversal.
For the reasons stated, I respectfully dissent.
Rogers, J., joins in this dissent.