This eminent domain proceeding was before this court in Arkansas State Highway Commission v. Lemley, 247 Ark. 201, 444 S. W. 2d 692. On retrial the jury fixed just compensation at $12,000. For reversal, the Highway Commission relies upon the following points:
“1. The trial court erred in refusing to strike the before the taking value testimony and the resulting damage testimony of Mr. Roy Jackson on the basis that he gave no substantial evidence upon which to predicate his land values.
2. The trial court erred in refusing to strike the testimony of Mr. Jackson with reference to drainage damages that were not plead as special damages.
3. The trial court erred in refusing to strike that portion of Mr. Jackson’s testimony as to the east 40 acres of land on the basis that this is a separate tract of land; that there was no taking from this portion of land; and that any impairment of access to a separate tract would not be compensable.
4. The trial court erred in allowing Judge Tom Scott to testify as to the cost of acquiring new access.
5. The trial court erred in refusing to strike Mr. C. V. Barnes’ testimony with reference to damage based upon circuity of travel, a non compensable element.
6. The trial court erred in refusing to strike Mr. Barnes’ testimony with respect to damages to the separate tract.
7. The trial court erred in refusing to strike Mr. Barnes’ inconsistent and improper testimony relating to damages to the remaining land wherein he valued the land in the taking as a separate unit of value, damaging the remaining lands on a basis of their value to the whole.
8. The trial court erred in giving appellees requested instructions A and B.
9. The verdict is not supported by substantial evidence and is excessive.”
Points No. 3, No. 6 and No. 8 were held adversely to appellant upon the first appeal and have become the law of the case.
Point No. 4, upon substantially similar testimony, was ruled adversely to appellant in Arkansas State Highway Commission v. Darr, 248 Ark. (May 18, 1970), 453 S. W. 2d 719.
Neither do we find merit in Point No. 2. Identical testimony about the drainage problem was elicited on the first trial—thus putting appellant upon notice of the nature of the claim. Furthermore, the drainage problem was restricted to acknowledged residual lands and was properly admitted as part of the claim for severance damages.
Mr. Roy Jackson testified that, he and Lemley bought these lands in 1945. After qualifying as an owner and as an expert on land appraisals, Mr. Jackson valued the 120 acres of Section 33 at $3,200 before the taking and an after value of $1,500. He valued the 40 acre tract in Section 34 at $8,000 before and $3,000 after the taking. Because Jackson placed a before value of $200 per acre on the woodland and did not support this value by comparable sales of woodland, appellant now argues that his valuation is without substantial support. We find no merit in this contention. Jackson, among other things, compared the fertility of woodland areas with that of surrounding farm lands and testified about cost of clearing. No question is raised about his valuation of the open lands.
Mr. C. V. Barnes testified that before the taking the 120 acre tract abutted upon Highway No. 64, but after the taking, the property was left in two separate and distinct parcels of land. The owners can not cross the Interstate to reach the south 40 acres from the north 66 acres. The 66 acres left on the north side of the Interstate is four and a half miles farther from Morrilton than before the Interstate construction. It is also a mile and a half further from a paved road than before construction. Furthermore, there is no public access to the north 66 acres since the taking;. Based upon his experience and study of the market in the area, Mr. Barries arrived at a before value of $30,000 for the 120 acre tract and an after value of $18,000.
On cross-examination Mr. Barnes stated that he did not place a separate value on the 40.8 acres south and west of the Interstate in arriving at his after value. He considered it one parcel before the taking and as one unit after the taking. Although the 40.8 acres still had access to Highway 64 and was severed from the north 66.48 acres by the Interstate, he did not analyze the south 40.8 acres by itself. On the whole remaining 107.28 acres he ascribed $170 per acre in round figures.
We agree with appellant that the trial court should have struck that portion of Barnes’ testimony relating to the damage to the remaining lands. Ordinarily non-contiguous lands cannot be valued as a unit. The exception is upon a showing of a unity of use. See Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375 (1908). Barnes’ testimony here demonstrated that the north 66.48 acres was left without public access and that even if such access were provided there would still be a considerable circuity of travel to get from the south 40.8 acres. In view of the fact that Barnes described the highest and best use of the lands before the taking as an owner occupied and operated agricultural unit and the fact that he described the south portion as a relatively small unit, we find nothing in his testimony by which one could say that the two parcels constituted a unit for valuation purposes after the taking. Furthermore, since the south 40.8 acres still has the same access that it had before, it certainly has not sustained any damage from lack of public access. Yet the method of averaging values used by Barnes would ascribe also damages to the south 40.8 acres for lack of public access.
The cardinal, rule in eminent domain cases involving partial takings is the difference in values of lands before and after the taking. The per acre value of agricultural lands on either side of an Interstate may be and usually is as much after the taking as before the taking. However, this does not mean that two separated parcels operated as a unit are worth as much per acre because of circuity of travel, access and location of improvements. This is particularly true of relatively small plots.
Appellant also argues that Barnes’ testimony with reference to circuity of travel should have been stricken. We find no testimony of Barnes that ascribes damages to circuity of travel. All we can find is Barnes’ statement that the north 66 acres after the taking is farther from the City of Morrilton and a paved road. These are matters that ordinarily affect value of lands and we hold that the trial court did not err in so ruling.
Reversed and remanded.
Fogleman, J., dissents.