dissenting. I respectfully dissent because I think the court has actually weighed the evidence in this case and, after comparing the testimony of value witnesses presented by appellant with that of value witnesses for appellee, decided that the appellee’s evidence failed to provide substantial support for the jury verdict, or that the sales relied upon by appellant’s witnesses were more comparable than those relied upon by appellee. I do not see how it can be said that the record on this second trial and the arguments advanced by appellant here require a second reversal of this case.
In the first place the court’s opinion is based, in part, upon a premise not really argued by appellant. Here, I refer to the treatment of the Schmoll testimony. The argument as to the deficiency in the Schmoll testimony is epitomized in the following paragraph from appellant’s brief:
“Mr. Schmoll, valuing his back forty at $750 per acre and the rest of it at $1,500 per acre, mentioned sales, but said positively he didn’t value his land based upon those sales (R. 103). He admitted on redirect that he knew of another sale, but on cross examination said he didn’t know if he did or did not take it into consideration, because he didn’t figure it had the acreage (R. 109). Appellee himself, eliminates his testimony from consideration.”
Thus, appellant relied upon the landowner’s lack of reliance upon comparable sales to eliminate his testimony from consideration. Of course, this is not the test of substantiality of a landowner’s testimony. Schmoll had inherited part of the land and had bought the interest of his brothers and sisters in 1946. He was familiar with all of the land, its characteristics, the portions of it which were cleared and the improvements on it. He knew his tract was within 200 feet of the city limits of Atkins, and within 1/4 mile of the city water tank, that gas, lights and a water supply with adequate pressure were available to the property and that there had been development of property just east of his. He mentioned no sale on direct examination. On cross-examination he stated that he did not base his testimony on any sales.
Since Schmoll did not rely upon comparable sales, it was up to appellant to otherwise demonstrate upon cross-examination that there was no reasonable basis whatever for his testimony.1 Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S. W. 2d 201, Arkansas State Highway Commission v. Carter, 247 Ark. 272, 445 S. W. 2d 100; Arkansas State Highway Commission v. Stobaugh, 247 Ark. 231, 445 S. W. 2d 511. His knowledge or lack of knowledge of market values of comparable lands went only to the weight to be given to his testimony. Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S. W. 2d 1; Arkansas State Highway Commission v. Drennan, 241 Ark. 94, 406 S. W. 2d 327; Arkansas State Highway Commission v. Maus, 245 Ark. 357, 432 S. W. 2d 478. See also Arkansas Highway Commission v. Carter, supra.
There may have been some inconsistency in our decisions on this point but throughout all of them, it seems that the landowner’s opinion as to value constitutes substantial evidence if it is based upon his familiarity with the land and is not an arbitrary figure plucked from the air with no relation to any fact in the record.
In Arkansas State Highway Commission v. Covert, 232 Ark. 463, 338 S. W. 2d 196, the landowner’s testimony, based upon his statements as to the size of his lot and the size and nature of the improvements thereon, was held to be substantial, even though, he gave no basis for his value of $17,500 stated in response to a query as to what he would sell the land for if he were willing to sell and someone were willing to buy.
In Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S. W. 2d 1, a landowner’s testimony and refusal to strike it because he gave no basis for his evaluations were held proper because of the rule that a landowner is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns, regardless of his knowledge of property values. It was held that there was no merit in an attack on the substantiality of the evidence.
In Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S. W. 2d 381, where the question was whether there was substantial evidence to support the verdict, we recalled that this court had many times held that the owner of real property was qualified to express an opinion as to its value when his familiarity with the property was shown.
In Arkansas State Highway Commission v. Maus, 245 Ark. 357, 432 S. W. 2d 478, the landowner’s testimony based upon his familiarity with the land as owner and lifetime resident was held to be substantial.
In Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S. W. 2d 563, we held the landowner’s testimony substantial because of his demonstrated familiarity with the land as owner and lifetime resident.
Whether a witness has such knowledge of the facts as to make his opinion of any value is a question largely within the discretion of the trial judge. Arkansas Power and Light Company v. Morris, 221 Ark. 576, 254 S. W. 2d 684.
Of course, the testimony of a landowner may not be substantial where: (1) there is nothing to indicate that it takes into consideration the potentiality of the land for the purpose for which it has value or evidence to show that potentiality, Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738; (2) the landowner not only has no knowledge of land values, but does not reside on the land, has little familiarity with it and bases his opinion as to value upon sentimental desires and the desires of a deceased spouse, Arkansas State Highway Commission v. Darr, 246 Ark. 203, 437 S. W. 2d 463; or (3) the value stated is an arbitrary figure that has no relation whatever to any fact in the record, Arkansas State Highway Commission v. Stanley, 234 Ark. 428, 353 S. W. 2d 173.
I submit that the owner’s testimony was substantial.
The qualifications of Jackson Ross as an expert on real estate values is not questioned. He valued 60 acres of the land at $1,200 per acre and 44.86 acres at $600. He testified that there had not been much growth in the city limits of Atkins, but that there had been rapid growth to the north, south and west. The Paul Raney property was 1/4 mile north of Highway 64 and about 200 feet from the Schmoll land. It was purchased in 1964. The Pryor-Pratt sale was not more than a quarter of a mile away. Ross did not appraise the Schmoll land as residential lots but as acreage for a developer to buy and develop. Schmoll had testified that the highest and best use of his property was for building and residential sites. Ross considered that there was a market and demand for such lots near the city limits, and that they could be sold as fast as streets and utilities were built. He stated that there was a great demand for a big acreage like this for this purpose.
On cross-examination Ross was asked how many lots a developer could get out of the property and replied that he would not make that estimate because he did not base his appraisal on lots. The cross-examiner persisted by an immediate repetition of the question, also asking if a developer would not have to consider the number of homesites he could get out of the property in considering what he would pay for it. When the witness did not give the number of homesites, he was again asked how many lots or building sites a developer would have sold by the time he got the property fully developed. Ross responded that he had not “figured” the property in building sites. Only upon a persistent repetition did he finally respond that he would say that a developer could get four good building sites per acre. Even this fishing expedition, with the attendant hazards pointed out in Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S. W. 2d 201, and Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S. W. 2d 1, did not reveal any information that would have rendered Ross’ value opinion inadmissible. I do not see how it could render it insubstantial. It is nowhere shown that he considered the Schmoll property value on the basis of the number of lots that could be carved from it.
If appellant’s theory is followed, there will be no way that an undeveloped tract of land can be valued on the basis of its highest and best use when it is available for development. Appellant’s witness Watson admitted that the highest and best use of the Schmoll property along the highway to a depth of 400 feet consisting of about 21 acres was for residential purposes. He also said that a tract 1M miles west of the Schmoll property contained frontage which had been developed for residential purposes, that three houses had been constructed thereon, and that the entire 44 acres was being developed for residential purposes along the highway. While he stated his opinion that there was not a demand for a 100-acre subdivision, his testimony tends to support that of Ross as to the existence of a demand for residential property. Surely the Schmoll property near the city limits and utilities would be far more desirable than this tract so much farther away, and would have a market value many times as great.
It is wholly unrealistic to say that sales of smaller tracts in proximity to the land in question furnish no indicia of market values in the vicinity. They certainly influence the market. When they do, it is not proper to rule them out as not comparable, as a matter of law.
This case is a far cry from Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 315 S. W. 2d 86. There the value expert stated that the value was arrived at by determining the number of lots into which the property could be subdivided and valuing each lot by comparison to prices being paid in a fully developed subdivision. The fault lay in his failure to value the tract as a whole, as Ross did here. The speculative nature of the testimony was there found in the inability of the jury to compare the lots in the developed subdivision without having any knowledge of numerous factors that would have to be considered in order to make the comparison fair and equitable. No such deficiency exists here.
I would affirm the judgment.
If the court intends to imply that the burden is on the landowner to demonstrate a reasonable basis for his testimony, I adhere to the views expressed in my dissenting opinion in Arkansas State Highway Commission v. Geeslin, 247 Ark. 553, 446 S. W. 2d 245, at least until such time as the court sees fit to expressly so declare without leaving the idea to be drawn inferen tially.