dissenting. I must respectfully dissent from the opinion of the majority in this case. The rule in determining just compensation where there is a partial taking by the sovereign in the exercise of its right of eminent domain is the difference in the fair market value of the entire tract immediately before the taking and the fair market value of the remaining land immediately after the taking. The reason for that rule was recently explained by this court in Property Owners Improvement District v. Williford, 40 Ark. App. 172, 843 S.W.2d 862 (1992), where we said:
When the sovereign exercises its rights to take a portion of a tract of land, the proper way to measure just compensation is by the difference in the fair market value of the entire tract immediately before the taking and the fair market value immediately after the taking. In this way any special benefit resulting from the public use of the land taken by the sovereign which increases the value of the land not taken will offset the amount the sovereign will have to pay. This is proper because the owner of the land has received his just compensation, although partly by the increase in value of the land he has left.
40 Ark. App. at 178, 843 S.W.2d at 866.
This rule has been well established in condemnation cases filed by the Arkansas State Highway Commission to acquire land for highway purposes. See Arkansas State Highway Commission v. Fox, 230 Ark. 287, 322 S.W.2d 81 (1959); Barnes v. Arkansas State Highway Commission, 10 Ark. App. 375, 664 S.W.2d 884 (1984).
In the instant case, it is admitted that the appellee owns 420 acres of land on which are located all four quadrants of the intersection of Highway 181 and Interstate Highway 55 in Mississippi County, Arkansas. The State Highway Commission filed this suit to take 1.16 acres of appellee’s land lying in the southeast quadrant of the intersection; to impose controlled access on 69 feet lying in the southwest quadrant; and to impose controlled access on 438 feet in the northeast quadrant.
The appellee’s only value witness testified to the before and after value of only 3.21 acres of the land taken. That tract is in the northeast quadrant of the intersection. The witness gave no testimony as to the before and after value of the appellee’s land lying in the other three quadrants — not even as to the 1.16 acres taken from the land in the southeast quadrant. Also, he did not testify as to the before and after value of the appellee’s 420 acres. The appellant moved to strike the testimony of this witness because he testified to the before and after value of only 3.21 acres of the land taken and not to the before and after value of the whole 420 acres. The trial court denied the motion.
It is the appellee’s argument, accepted by the majority of this court, that the trial court’s ruling was correct. I do not agree. The rule of law applicable to this situation is very clear, and the reason for the rule is very clear. Appellee’s witness chose the 3.21 acres because that area, bounded by the 463 feet of controlled access, plus a depth of 300 feet, was all of the property affected that the witness thought had commercial value.
The problem with the testimony of this witness is that it avoided the rule that allows the state credit for any enhancement in value resulting from the taking. This credit is even provided by statute. See Ark. Code Ann. § 27-67-316(f)(1987).
In the Fox case, supra, the expert witness for the landowners testified that the “total” amount of damage sustained by the taking of a portion of their land was $20,800.00, but refused to give the before and after figures. The Arkansas Supreme Court found there was “no substantial evidence” to support a judgment for more than $ 10,250.00, which was the highest before and after difference testified to by the witnesses for the State Highway Commission. And in Lindsey v. Forrest City, 259 Ark. 743, 536 S.W.2d 305 (1976), the court held that the appraisal of the only value witness offered by the city should have been stricken because he “did not use a permissible method of fixing just compensation.” The court said the witness admitted he determined just compensation by valuing the 121 acres taken for a oxidation pond at $350 per acre and had not determined the value of the whole 690-acre farm.
In the instant case, the court should have stricken the testimony of the appellee’s value witness because he did not testify as to the before and after value of the appellee’s entire tract of 420 acres. The jury was entitled to this information to ensure that the State would get credit for any enhancement of the entire tract. Obviously, the witness did not have to attribute any enhancement to the remaining land but he should not have been permitted to side step the issue in contravention of the long-established case law of this state.
I would reverse and remand for a new trial.