concurring:
I concur in the majority’s result, albeit for alternate reasons.
Respondent’s contention that NRS 37.009 is unconstitutional lacks merit. The state legislature is within its authority to enact legislation and to amend or repeal its statutory law unless the legislative action is specifically precluded by constitutional limitations. Moreover, “statutes are to be construed in favor of the legislative power.” Galloway v. Truesdell, 83 Nev. 13, 20, 422 P.2d 237, 242 (1967) (citing In the Matter of Platz, 60 Nev. 296, 108 P.2d 858 (1940)). As the Nevada Constitution does not preclude this legislation, the presumption of legislative authority prevails. Here, the legislation simply provides a reasonable definition of the scope of recovery in condemnation actions. Although it may be argued that the legislature’s statement of public policy on these issues should be revisited, that policy is rationally based for the purposes of constitutional analysis. Any contention with this legislative policy should be addressed to the legislature.
Thus, I agree with the majority that the trial court was wrong in its conclusion that NRS 37.009 is unconstitutional. I depart from the majority in its conclusion that NRS 37.009 effects a legislative repealer of Wheeler v. State, Department of Transportation, 105 Nev. 217, 773 P.2d 728 (1989). Although the enactment of NRS 37.009 was intended to do just that, the language chosen by the legislature does not effect this purpose. The statute mimics the Wheeler holding, only changing the term “highest price” to “most probable price.” Contrary to the majority, I conclude that the terms are synonymous.1 Thus, the jury should have been given two instructions on fair market value, one containing the statutory language, and a second defining most probable price as the “highest price” on the date of valuation that *66would be agreed to by a willing seller and a motivated buyer under normal market conditions. Here, the instruction given by the trial court would have, in my view, been appropriate if accompanied by the statutory language.
I take this position because the industry, that is persons in the business of appraising real estate, do not seem to regard the terms “highest price” and “most probable price” as comprising anything other than a distinction without a difference. See note 1. This was certainly the case with regard to the appraiser’s testimony in Wheeler, and with regard to the county’s appraiser below.
The problem at trial was created by the failure to instruct on the statute and, later, the forensic approach taken during closing argument with regard to the instruction’s definition of fair market value by counsel for the landowners. Counsel did argue that it would not take a “rocket scientist” to tell the manifest difference between the terms used in the statute and the terms used in the instruction. Given the trial court’s incomplete definition of fair market value, counsel’s rhetoric comparing that definition with the testimony of the county’s expert was not improper. Had the jury been properly instructed, the argument would have been in conflict with the legal doctrine presented to the jury.
Here, the landowners successfully fought for an instruction defining fair market value that did not include the statutory language and then attempted to draw a distinction between “highest price” and “most probable price.” This strategy, which is at odds *67with the views stated in this separate opinion, was made more feasible because the county’s appraiser used the statutory language in forming his opinion, although being of the further opinion that the two terms were synonymous.
The trial court’s adoption of the landowners’ position with regard to fair market value enabled the landowners to employ the above strategy. However, the “rocket scientist” argument improperly expanded upon the “highest price” instruction that was given. Had the landowners’ closing argument been premised on the assumption that the terms “highest” and “most probable” were synonymous, the failure to instruct on the statute would arguably have been harmless error. Thus, it was the instruction and the arguments made in connection with the instruction that form the need for a second trial below.
While counsel’s final argument demonstrates an attempt to draw a distinction between the “highest price” and “most probable price” in this context, the appraisal industry does not draw such a distinction. If juries are instructed as I suggest, and if jury arguments are kept consistent with the instructions, just compensation to all parties will be realized. For example, on re-trial, the county will certainly be free to argue that the most probable price for the subject property based upon its highest and best use should not include speculative casino development.2
The trial court’s ruling on this issue, which facilitated the tactical approach of counsel during closing argument, compels reversal. See Horvath v. Burt, 98 Nev. 186, 643 P.2d 1229 (1982) (reversal is warranted where different result might have been obtained in the absence of the erroneous instruction).3
Appellant’s own expert witness/appraiser testified that the value of the property would be the same under either the “most probable price” standard or the “highest price” standard. During trial, the following exchange occurred between the County’s lawyer, Dale Haley (“Haley”), and the County’s appraiser, Tim Morse (“Morse”):
*66Haley: Could you also give your definition of fair market value . . . ?
Morse: Yes. Market value definition. . . . That is — it’s the most probable price which a property would bring in an open and competitive market under all conditions to a fair sale without the price being affected by undue stimulus whereby the sale is consummated on a specific date and the title to the property is passed from the seller to buyer under the following conditions: That the buyer and seller are acting prudently and knowledgeably, that the buyer and seller are typically motivated, that the buyer and seller are well informed.
Also, that there’s a reasonable period of time to allow the property for exposure to the open market, and that payment is made in U.S. Dollars in cash. Or other precisely related terms similar to cash, and that the sale price represented the normal consideration for the property and there are no special or creative type financing or other concessions that would be granted in the price.
Haley: Have you ever heard the term highest price used in relation to fair market value definition? Have you ever heard of that being used?
Morse: Yes.
Haley: Does it make any difference whether you use most probable price or highest price in your analysis?
Morse: No. It makes no differences in my opinion.
Haley: Does the most probable price result in the highest price?
Morse: Yes, it does.
Haley: That’s how the market operates; is that correct?
Morse: Yes, it does.
The majority hypothesizes that, under the instruction given by the trial court, a single appraisal of $1000 would have to be accepted on valuation against five appraisals of $800 based upon the “most probable price.” While such is not the inevitable result of the instruction, protection against this interpretation would be in place if condemnation juries are instructed as I suggest.
With regard to the other assignment of errors mentioned in note 1 of the majority opinion, I do have some individual comments. First, under no circumstances should the jury have been required to find two sets of damage figures based upon two different valuation dates. This case went to trial within the two-year period provided under NRS 37.120. While the trial court clearly erred in this regard, this error was harmless. Second, while exclusion of the evidence of the original purchase price paid by the landowners may have been within the court’s discretion, this was certainly a close call under these circumstances. Its probative value as to a current valuation would easily have been dealt with on cross-examination of the experts. Third, the exclusion of the landowners’ views on valuation stated in correspondence between counsel was certainly proper because the letters were part and parcel of settlement negotiations.