In this condemnation suit, brought by the Highway Commission, the. jury fixed the value of the land being taken at $26,450. The Commission argues two points for reversal.
First, it is contended that the Commission was unfairly taken by surprise at the trial when the landowner was allowed to prove, without having pleaded, that the tracts being condemned comprised about four acres more than the figures asserted in the Commission’s complaint. That contention arises from this set of facts:
By the complaint the Commission sought to acquire two tracts of land. Tract No. 422, described by metes and bounds, was alleged to contain 14.55 acres. Tract No. 422B was described in two parts: (a) The southwest quarter of the southwest quarter of a certain Section 18, and (b) a part of the northwest quarter of the adjoining Section 19, which was described by metes and bounds and was alleged to contain 23.3 acres, more or less. The description of Tract 422B ended with this clause: “A total of 63.3 Acres, more or less.” It is apparent, simply by substruction, that the plaintiff as-sinned that the southwest quarter of the southwest quarter of Section 18 contained 40 acres.
Schmoll’s answer briefly denied the Commission’s right to condemn all the land described in the complaint and went on to assert a right to compensation in excess of the amount deposited by the condemnor with its declaration of taking. The answer did not controvert the plaintiff’s allegation that Tract 422R consisted of 63.3 acres.
At the trial Schmoll was allowed to offer proof by an abstractor of titles, over the Commission’s objection, that the southwest quarter of the southwest quarter of Section 18 actually contains 43.86 acres. Counsel for the Commission at once pleaded surprise and asked for a continuance to permit the highway department’s engineers to survey the land, hut that request was denied.
We think the court fell into error. True, when the sole issue in a condemnation case is the value of the land the owner need not even file an answer, because the condemnor must pay just compensation whether or not the owner appears and answers. Bradley v. Keith, 229 Ark. 326, 315 S.W. 2d 13 (1958). When, however, the landowner intends to raise other issues, such as a claim for special damages, he must file an answer asserting his contentions. Ark. State Highway Commn. v. Lewis, 243 Ark. 943, 422 S.W. 2d 866 (1968). Similarly, when the other foot is shod, the condemnor’s failure to plead a material matter is prejudicial to the landowner “if it puts him at an unnecessary disadvantage in the presentation of his case.” Urban Renewal Agency v. Hefley, 237 Ark. 39, 371 S.W. 2d 141 (1963).
In a situation such as this one the controlling consideration on appeal is and should he that of simple fairness. Counsel for the Commission evidently drafted their complaint in the belief that the quarter quarter section comprised forty acres. Total acreage is important, because the value of rural property is ordinarily determined by the acre. Counsel for the landowner were manifestly of that opinion, for they came to court prepared to prove the exact acreage that was involved. We are firmly of the view that the issue should have been brought out into the open before the day of trial. If the law were otherwise the Commission, through no fault of its attorneys, would be exposed in every case to the risk of excessive or even fictitious claims not disclosed by the pleadings. For many years the courts, aided by pretrial conferences, discovery depositions, and allied procedures, have been eliminating former practices that permitted litigants to mask their batteries until the day of trial. An affirmance of this judgment would involve a long step backward.
The appellant’s second contention is that the court erred in allowing counsel for the landowner to argue to the jury, without supporting proof, that the Commission was taking more land than it needed and that in such a situation the landowner has no choice except to submit to the Commission’s decision. Such an argument is not well founded, as the landowner has a clear-cut remedy in eqjuity against the taking of more of his land than is needed for public purposes. Burton v. Ward, 218 Ark. 253, 236 S.W. 2d 65 (1951). We need not discuss the issue in detail, however, for it should not arise upon a retrial.
Reversed.
Fogleman, J., dissents.