dissenting. I do not agree with the majority opinion. The Ormond land originally consisted of 262 acres. The taking of 11.01 acres for right-of-way left 92.62 acres on the north side of the right-of-way, and 158.37 acres on the south side. Mr. Ormond testified that his damage amounted to $84,874 on a before value of $102,874, and an after value of $17,240 because of loss in access to a part of it. His only expert •witness testified that the total damages amounted to $17,000. Two expert witnesses for the Commission testified that the damages amounted to $4,150 and $4,500 respectively. Judgment was entered on a jury verdict for $12,000 and on appeal to this court the Commission relies on the following points for reversal:
“The trial court erred in refusing to strike that portion of Charles L. Ormond’s value testimony relating to values based on commercial catfish farming.
The verdict was excessive in that there was no substantial evidence to support a verdict of $12,-000.00.”
I agree with the appellant on both points.
Mr. Ormond purchased his land in about 1961, apparently at public sale, for about $11,000. Mr. Ormond testified that he had planned to raise catfish on his land and that its highest and best use is for catfish farming. He testified that water could be, and was being, impounded by a levee on 60 acres of the land and that before the taking this land was worth $1,520.40 per acre or a total of $91,224 for catfish farming. He testified that it would cost about $10,000 to put the land in shape for catfish farming, leaving a net before value of the 60 acres at $86,224.
On cross-examination Mr. Ormond testified that he used the income approach in establishing the value of his land. He says his lake would be 20 feet deep in some areas and that an acre of water four feet deep will support 2,000 catfish, and that under normal conditions he would be able to get 1,800 of them to market at one year of age; that two pounds of feed will produce one pound of catfish, and that feed costs $2.50 a sack. He testified that his annual net income from one acre of catfish would be $304.80 per acre, but that he would give a tenant half of this amount and as landlord he would net $152.04 a year per acre in catfish farming. He multiplied this amount by ten years in arriving at $1,520.40 as the value of his land per acre. At the close of Ormond’s testimony the record reveals as follows:
“MR. BROCK: At this time the plaintiff would move to strike the value testimony of the witness Ormond relating to the value placed on the land that is suitable for commercial catfish farming, on the basis that this value is based upon anticipated future profits and would be of a highly speculative nature, on which he is basing his value; and for this reason we move that that testimony with reference to the commercial fish farming and values based on that use be stricken.
MR. ROWELL: In response to the motion, counsel for the landowner asserts that the opinions as to the before value was based upon the adaptability of the land at the time of taking, that on cross-examination counsel for the Highway Department interrogated the landowner with reference to why the land was adaptable and as to why it had such a value; that in response the landowner set forth the rental value of the property with reference to farming, which is an acceptable method of ascertaining market value, having nothing to do with speculation or conjecture with reference to the adaptability of the land.
THE COURT: The court will let the whole thing go to the jury for whatever it is worth.” (Emphasis mine).
The majority agree that this testimony should have been stricken.
Mr. Pearce testified on direct examination that prior to the taking the highest and best use was one of an agricultural nature, primarily pasture land, with a potential for commercial fish farming and a future potential for rural homesites, provided adequate and suitable access was available to the property. He testified that after the taking the highest and best use of the residual on the south side remains the same as before the taking with the same potential use and value that it had before the taking. He tesitfied that the parcel remaining on the north side of the right-of-way, being without access and partially flooded, its highest and best use after the taking would be flooded timberland. It was Mr. Pearce’s opinion that the value of the 11.01 acres actually taken amounted to $2,250, and the damages to the remainder amounted to $14,850, giving a total of $17,000 for the land taken and damage to the remainder.
On cross-examination, as to access, Mr. Pearce testified in part as follows:
“Q. The real route from Plumerville, though, isn’t it this north route that comes into the property on the. north side of the property, is that right?
A. Yes, sir,,but that road has not been used, as far as I could tell, in a good while up to this property. Now—
Q. Yes, sir. It’s,grown up and it’s hard to see.
A. Ye.s, sir..
Q. You haven’t been down it?
A. I havn’t been down there, no, sir. I’ve been down it a ways, as far as it was graded out, but I haven’t been on to this property from that road. ■
Q. - This was — the road from Plumerville was one of the access routes to this property that you were talking about?
A. Yes, sir, that was one of them, yes, sir.
Q. Now, do you also know of another access route that wouldn’t even show on this property perhaps, up across the land of Earl Smith?
A. There is a road. I don’t know the name. It comes in along here—
Q. Would that be south?
A. It might be. I haven’t been over that road either. I haven’t tried that either — I don’t know the owner’s name. That comes in here.
Q. Would it be further south?
A. I don’t know about tnat. It comes on the southern portion of the property.”
As to use and value on cross-examination, Mr. Pearce testified:
“Q. The highest and best use of the property was agricultural purposes?
A. Yes, sir.
Q. For pasture land?
A. That plus any potential, as I said, for commercial fish farming and the lakes.
Q. Now, you say fish farming in the lake to the south, on the south residual?
A. And the one — The lake that had been formed on the north residual prior to the taking.
Q. This is a basis of the $200.00 per acre value?
A. Yes, sir. As I say, there was a potential for— future potential — for rural home sites, provided adequate access to the property were available,' which at this time I do not consider the access is adequate. * * *
Q. Well, this open pasture land would be better than that ridgy woodland, wouldn’t it?
A. Mr. Brock, for its particular use, uses, but then those lakes, as I say, have a potential for fish farming which could also be considered a valuable use.
Q. But your highest and best use on this property is for agricultural purposes?
A. That’s right, and I consider fish farming as an agricultural purpose, along with pasture land.
Q. There hasn’t been any fish farming done on this property, had there?
A. Not on this property, but there’s some just north of Plumerville out here that—
Q. There is a potential for it?
A. It’s a use to which the land can be devoted.
Q. Like residential?
A. As I say, that is future potential in the residential development, and that relies strongly on adequate access to the property. The ponds on this particular land could he utilized for the purpose which I mentioned immediately.”
(Emphasis mine)
It is my opinion that Mr. Pearce’s testimony as to potential value for catfish farming should have been stricken. It is my further opinion that without the potential fish farming value, there was no substantial evidence to support the verdict for $12,000.
As to his market value approach, Mr. Pearce testified:
“Q. Now, this $200.00 per .acre, what approach to value did you use? Did you use the market data approach?
A. Yes, sir.
Q. Does this include sales of other lands in this vicinity?
A. That’s correct.
Q. What sales did you use to arrive at this $200.00 per acre value?
A. I used the sale of Isley to Walls, one which was a 66 acre tract south of Highway 64 a mile and a half east of Morrilton.”
Mr. Pearce testified that the Isley to Walls sale was for $290 per acre as indicated by revenue stamps on the deed and as confirmed by the real estate agent who closed the deal, and that there was public access to this property. One other sale used by Mr. Pearce was a 40 acre tract fronting on Highway 64 some five miles east of the Ormond property. He testified that this property sold for $7,000 or $175 per acre. Mr. Pearce testified to two other sales, one in 1963 for $132 per acre, hut none in the vicinity of the Ormond property. The sale of an 80 acre tract near the Ormond property for $175 per acre was not considered an arms-length transaction by Mr. Pearce, and property near the Ormond land, purchased by a Mr. "Wingo for $50 per acre, was considered a bargain by Mr. Pearce and not representative of market value. Mr. Pearce was asked concerning other specific sales in the vicinity of the Ormond property, but he disclaimed any knowledge concerning these sales.
All of Mr. Pearce’s testimony as to severance damage pertained to the 92.62 acres north of the right-of-way which he says had a market value of $200 per acre as pasture and a potential fish farm before the taking, but which has now been reduced to flooded timberland worth only $40 per acre because of loss of access.
“Q. Now, on this south 150.87 acres, what did you consider the value of that to be afterwards?
A. $200.00 per acre.
Q. In other words, you didn’t feel it was damaged in any way?
A. No, sir, it has been slightly altered in shape, but I didn’t consider that it had been damaged.
Q. Now, as to the 92 acres north of the new Interstate, 92.62 — A
A. Yes, sir.
Q. What after value did you place on that?
A. $40.00 per acre.
Q. $40.00 per acre? And what was the reason it was only worth $40.00 an acre again?
A. It is an isolated tract and doesn’t have access. The highest and best use for the land after the taking a portion of the land is flooded. It would be flooded timber land. Some of it is flooded, and some of it was not flooded.
Q. So you damaged the 92 acres north of the Interstate $160.00 per acre?
A. Yes, sir.
Q. Because it had no access.
A. Yes, sir.”
Mr. Pearce testified on cross-examination that there were two access roads into the property; that one of them had grown up and was hard to see, and that he had not attempted to go to the property over either road.
Neither Mr. Ormond nor Mr. Pearce qualified as experts on fish farming and their testimony as to value and damage on such potential use was without logical basis. Mr. Ormond built a dam which impounded the water on the north 92.62 acres of his land and it was this act rather than the taking of the right-of-way that reduced this acreage to flooded timberland, as testified' by Mr.. Pearce. According to Mr. Pearce this 92.62 acres of land north of the right-of-way was damaged by the right-of-way taking in ,an amount greater than what appears to have been the market price of the entire 262 acre tract when Ormond purchased it in 1961.
Both Mr. Ormond and his expert witness placed considerable emphasis on the value of the land as .a potential fish farm, and this evidence went to the jury for what it was worth. There is no way of determining what the value testimony for potential fish farming was worth to the jury in arriving at its verdict. I consider this testimony worth a great deal to the jury in arriving at its verdict, for I simply find no substantial evidence of severance damage to Ormond’s property which would sustain a verdict in an amount anywhere near $12,000.
I would reverse and remand for a new trial.