At the risk of being accused of invading the province of the jury, I respectfully dissent from the majority opinion in this case.
As more specifically pointed out in my concurring opiuion in the case of Ark. State Highway Commission v. Dixon, 246 Ark. 756, 439 S.W. 2d 912, a tremendous gap has developed between the opinions of the experts testifying for the landowners, and those testifying for the highway commission, as to the damages sustained to land in highway condemnation cases, and this case is no exception. The lowest estimate of damages by the appellee’s experts in this case is $24,200 and the highest estimate by appellant’s experts is $9,000, a difference of $15,200. The jury verdict was for $28,-000. Tlie appellant’s expert appraisers say that the highest and best use of the land involved is for agricultural purposes; whereas the appellee’s experts say that its highest and best use is for subdivision residential development. As I attempted to point out in my concurrence in Dixon, supra, these expert appraisers had the same information available to them and drew their conclusions from the same source. If such discrepancy does not reflect on the qualifications of these witnesses as expert appraisers, it certainly does, in my opinion, adulterate the quality of their testimony and opinions as substantial evidence.
I recognize that only the trial judge has the statutory authority, under Ark. Stat. Ann. 27-1901—27-1903 (Repl. 1962), to re-examine the issues of fact after a verdict by a jury, and that it is the duty of the trial judge and not this court to set aside a verdict which is against the preponderance of the evidence. (La. & Arle. Ry. Co. v. O’Steen and Barr, 194 Ark. 1125, 110 S.W. 2d 488.)
I also recognize that in the case at bar enhancement in value by the construction of the highway was not pleaded by the appellant and that aside from a mere unsupported motion for a change in venue, the appellant relied on the usual, and almost trite contention, that there was no substantial evidence to support the jury verdict of $28,000. I recognize that my dissent is based on a rather radical departure from our usual procedures in determining what is substantial evidence.
Witness Hewitt testified for the appellee that the highest and best use of the land was for residential development and the damage was $30,160. Witness Hayes testified for the appellant that the highest and best use. was for agricultural purposes and that the damage was $8,750. The testimony of appellee’s experts ranged from Mr. Hewitt’s high of $30,160 to witness Barnes’ low of $24,200, and for the 'appellant the testimony ranged from Mr. Hayes’ low of $8,750 to Mr. Mashburn’s liigli of $9,000 — so what is substantial evidence under such discrepancy in the testimony of experts'? I am simply unable to accept as substantial evidence, the opinions of the experts in this case when the testimony, in my opinion, is so thoroughly contradicted by the plat of the area involved and accepted in evidence.
The land involved in this case is inside the corporate limits of Morrilton and is on a high bank overlooking the Arkansas River above lock and dam No. 9. The highway involved is not a controlled access highway, but is a new location of the old highway. The old highway crossed the river bridge and ran parallel with the river along the west side of appellee’s property, whereas the new highway crosses a new bridge a short distance down stream from the old bridge. The new highway enters appellee’s land at its southwest corner, crosses a part of the land and then curves north to run through the east side of appellee’s property. The old highway now constitutes a paved street on the west side of appellee’s property next to the river and the new paved highway provides highway frontage and access to any portions of the east half of appellee’s property.
If the appellee’s experts were correct in their opinion that the highest and best use of appellee’s land is for residential development purposes, then their testimony that the lands have been damaged by the construction of a paved road readily accessible to any residential plots that may be laid out on such land, simply does not make sense to me.
Since no enhancement in value was alleged in this case and no request was made for a new trial, I would reverse and remand for a determination of the market value of the land actually taken in fee and for an assessment of damages not to exceed that amount.