(dissenting in part, specially concurring in part).
There are 14 separate issues briefed by the Kelleys. Having reviewed these and the arguments and authorities thereon, I am convinced that the City of Sioux Falls did not have a fair trial. Therefore, I cannot join the majority opinion in affirming a judgment against the City of Sioux Falls for $450,000. The following are prejudicial errors which I believe justify a new trial:
1. Permitting counsel for Kelleys to question potential jurors, during voir dire, concerning their relationship to property owners in a drainage district which did not exist.
City properly objected to references to a proposed drainage district or its membership. During trial, references to a proposed drainage district were made to get across the point that the property owners would be paying for the purchase of Kelleys’ property. The source of funds to pay for the property being acquired is improper in any condemnation case. See R.W. Gascoyne, Annotation, Propriety and Effect, in Eminent Domain Proceeding, of Argument or Evidence as to Source of Funds to Pay for Property, 19 A.L.R.3d 694, 697 (1968). Kelleys were able to convince the jury that the source of funds would be from well-heeled adjoining businesses such as Sam’s, Wal-Mart, and Me-nard’s. This was not true as the money was going to come from the pockets of the taxpayers in the City of Sioux Falls. In truth and in fact, the drainage district did not exist. Therefore, reference to such a nonexistent fact, in voir dire, and during trial, was totally incompetent, irrelevant, and immaterial evidence in the condemnation proceeding. Such type of testimony was introduced to build damages and was an improper injection of evidence which prevented the taxpayers of the City of Sioux Falls from having a fair trial. Trial court failed to exclude this type of testimony. Had this testimony been excluded, in my opinion, there would have been a different verdict. My authority is the unanimous opinion of Shaull v. Hart, 327 N.W.2d 50, 53 (S.D.1982), written by this special writer, which base holding is “prejudicial error is that error without which the jury would have probably returned a different verdict.”
2. Precluding the City of Sioux Falls from bringing in its side of the case on the “wetlands” issue.
It appears that there existed a paramount issue concerning “wetlands.” During oral argument in this Court, one of Kelleys’ attorneys expressed: “The City said this land was wetlands. Much of the lawsuit was tried over wetlands.” And, per Kelleys’ attorney, the “City lost the battle.” Issue 9, raised by the City of Sioux Falls’ brief, focuses on this issue and explains that the trial court was very unfair in permitting Kelleys’ version to get before the jury but refused to allow the City of Sioux Falls to get its points across on “wetlands.” Again, we witness prejudicial error. Shaull, 327 N.W.2d at 53.
An environmental consultant testified, at great length, on the wetlands issue for the Kelleys. When the City attempted to call its expert to the stand, Jim Oehlerking of the *116Omaha District Corps of Engineers, Kelleys objected to his testimony. Thereupon, the trial court restricted the City from fully presenting OehlerMng’s testimony. City of Sioux Falls attempted to refute Miller’s testimony. Trial court refused to permit the City from asking questions, and eliciting evidence which had probative value on the issues in the case. Due to bureaucratic folderol, the City of Sioux Falls had a great deal of trouble in having an employee of the Corps of Engineers testify in this case.
It is axiomatic that a jury should hear both sides of a case. Facts do not cease to exist by simply ignoring them. It is true that a trial court has discretion in admitting the opinion of an expert. SDCL 19-15-2; Stormo v. Strong, 469 N.W.2d 816 (S.D.1991). However, a trial court can abuse its discretion in such a ruling. There was skirmishing to preclude Oehlerking from testifying. After this litigation was commenced, both counsel for the City and Kelleys had informally consulted with Oehlerking about the “wetlands” issue. Therefore, there was certainly no surprise to the Kelleys. City had the right to present its side of the case, through. this witness, on the “wetlands” issue. Precluding the City from bringing in its side of the case prejudiced its right to have a fair trial. Testimony of Oehlerking would have aided the jury in deciding one of the major issues in this case. As counsel for Kelleys argued before this Court at the State Capitol, “Much of the lawsuit was tried over wetlands.” In my opinion, the trial court abused its discretion by not permitting the City of Sioux Falls to present its case on the “wetlands” issue and requires reversal. Shamburger v. Behrens, 380 N.W.2d 659 (S.D.1986). It was a paramount issue in this jury trial. This evidentiary error was dynamite against the City of Sioux Falls and this Court should not tolerate such an abuse to any litigant. Prejudicial error is that which in all probability must have produced some effect upon the final result and affected the rights of a party assigning it. K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529 (S.D.1983). This was a unanimous decision, authored by this special writer, a decade ago. Justice must be even-handed. Unfortunately, that is not the case here.
3. The trial court used the wrong methodology on damages.
Facts reflect that the City of Sioux Falls was engaged in a planning process. As this process was evolving, Kelleys were reacting to the process and began to sell parcels of property which had frontage for a great amount of money. Obviously, Kelleys received what they believed was fair market value for these pieces of property. See Rapid City v. Baron, 88 S.D. 693, 227 N.W.2d 617 (1975) (The measure of damages when an entire tract is condemned is the fair market value of the tract at the time of the taking). In actuality, Kelleys were selling off parts of the whole. Having done so, Kelleys sued in inverse condemnation. However, trial court would have no part of it and dismissed the inverse condemnation.
Kelleys then conceptually whirled and, in this lawsuit, now maintain there is a partial taking (back, you see, to the concept of “you pay us for taking part of the whole”). This all presumes a “defacto” taking which did not occur. And that was the ruling in the lawsuit on inverse condemnation. Said another way, Kelleys were trying to get in the back door when they could not get in the front door — on the issue of damages. For years, Kelleys were selling off parcels of this entire tract of land. Kelleys originally owned the entire tract. This case is simply not a partial taking case.
Kelleys are not entitled to severance damages or consequential damages. Nay, long ago, they, themselves, severed the whole tract, carving it into parcels selling them for big bucks. Severance damages are properly allowable when there has been a partial taking and they are then included in the value of the property taken. Conceptually, they simply cannot be set aside — segregated if you will — from damage to the remainder. You cannot isolate them. See State Highway Commission v. Hayes Estate, 82 S.D. 27, 140 N.W.2d 680 (1966). Therefore, evidence was permitted to go before the jury on the wrong methodology of damages; i.e., to permit damages on a partial taking theory. Evidence confused the jury on the value of the *117property which the City of Sioux Falls was, in reality, acquiring. City of Huron v. Jelgerhuis, 77 S.D. 600, 97 N.W.2d 314 (1969). In a nutshell, the facts do not substantiate a partial taking case and we have, before us, a runaway horse on damages. An appellate court should rein in this runaway horse by giving the citizens of Sioux Falls a fair shake.
4. Not ‘permitting leading questions on cross-examination.
It is a well-settled evidentiary rule that ordinarily leading questions should be permitted on cross-examination. SDCL 19-14-20. In Maiden v. Boyd, 36 S.D. 451, 155 N.W. 187 (1915), this Court held that to test the correctness of a witness’ conclusion, a thorough cross-examination should be allowed. In this case, Kelley subpoenaed Rod Liesinger, an employee of the City of Sioux Falls.
During cross-examination by the City, Kelley objected to a question because it called for a legal conclusion. The trial court sustained the objection and additionally remarked that leading questions would not be permitted because Liesinger was a city employee. Note that Kelley’s objection concerned a legal conclusion; the trial court’s remark on “leading questions” was pulled out of thin air.
Under Shamburger, 380 N.W.2d at 664, when a witness is shown to be friendly or biased in favor of the cross-examiner, the presumed hostility of such a witness to the cross-examiner’s cause ceases to exist and leading questions may not be used in examining the witness. For the trial court to make its ruling, Kelley had the burden to object based on Shamburger. Rather, the trial court made no determination that Liesinger was biased in favor of the cross-examiner, nor did Kelley make such a claim. A city employee, by virtue of his employment, is not necessarily exempt from cross-examination.
Footnote 5 of the majority opinion strangely argues that a cross-examiner has the burden to prove why leading questions are needed on cross-examination, and cites Hedges v. Hedges, 87 S.D. 425, 209 N.W.2d 660 (1973) for: “An offer of proof is a condition precedent to having this court pass upon an allegedly erroneous ruling.” However, such an offer refers to the exclusion of evidence. Hedges, 209 N.W.2d at 664; Darrow v. Schumacher, 495 N.W.2d 511 (S.D.1993). The trial court was not excluding evidence here. Contrary to the majority opinion, any burden required here belongs to Kelley.
On the outset, the ruling robbed City of a tool to test Liesinger’s testimony and credibility. Nevertheless, despite the trial court’s ruling, the record reveals that the City continued to ask leading questions without objection over the subsequent 25 pages of transcript. Thus, the trial court’s ruling, completely prejudicial per Shaull, 327 N.W.2d at 53, became harmless, especially when compared to the prejudicial errors previously cited herein.
5. Attorney’s fees were unreasonable.
Furthermore, the award of attorneys fees to Kelley’s attorney is shocking. Counsel for the City of Sioux Falls vigorously objected to a requested sum of $100,000 by way of a contingent fee. Under settled law in South Dakota, an attorney has the burden of establishing that the charged fee is justified and reasonable. Matter of Estate of Lingscheit, 387 N.W.2d 738 (S.D.1986). A contingent fee agreement does not, per se, equate with a reasonable attorney fee. In my opinion, the trial court must have a hearing on attorneys fees and establish what constitutes a reasonable attorney fee based upon quantum meru-it. City of Aberdeen v. Lutgen, 303 N.W.2d 372 (S.D.1981). Although this Court may honor an agreement on an attorney’s fee, if it is fairly negotiated between the parties, “the actual fee charged is still subject to the scrutiny of the Court for reasonableness.” Matter of Estate of Hansen, 366 N.W.2d 852 (S.D.1985).
Therefore, the City of Sioux Falls and its citizens are entitled to a new trial because of the compounding prejudicial effect of the errors expressed above. These errors confused the jury and caused the jury to render an excessive and unjust verdict.