dissenting. After careful reflection I am forced to the conclusion that the majority opinion is erroneous in several respects and that the rules of evidence sanctioned therein will probably rise up hereafter to haunt this court.
As to Cochran. The majority approved an award to Cochran in the amount of $6,904.70. The testimony on which this award was based and also the majority opinion itself show conclusively that it was arrived at by ascertaining the number of cubic yards contained in two acres of ground at an average depth of twenty-one feet and then multiplying that figure by ten (cents) — the price per yard. It is obvious, of course, that in order to arrive at the above number of cubic yards the walls of the gravel pit would have to be dug straight down — with a perpendicular bank — for the entire depth of the excavation, that is, twenty-one feet. This, of course, is just a plain physical impossibility.
Fortunately it is not necessary in this case to rely solely on the ‘ ‘ obvious ’ ’ for there is testimony in the record to support my contention of error. Two witnesses state in substance that it was impossible to excavate sand and gravel — or the materials here being considered — to a depth of twenty-one feet with perpendicular walls, but that it was necessary to excavate on a slope of one to one- and-one-half. By this method they arrive mathematically at much less than the 69,047 cubic yards as set forth in the majority opinion. Appellees’ own witness stated in substance that you could not excavate with perpendicular sides because the material when wet would dissolve like sugar. I am, therefore, forced to the conclusion that there is no substantial evidence on which the jury could award Cochran ten cents per cubic yard for 69,047 cubic yards of select material.
Under these circumstances I would fall back on the old well-established rule that Cochran’s damages in this case are the difference between the value of the property before the taking and the value after the taking. The only testimony introduced in the record of this nature was that of two of appellant’s witnesses. The highest one placed Cochran’s damages at $6,450.00 after taking into consideration the market value of the select material. Therefore, I would affirm as to Cochran for the latter amount in the event of a remittitur.
Moreover, the best authority I have been able to find does not support the majority’s method of determining-damages — that is by multiplying cubic yards by a stated price per yard. See Reiter v. State Highway Commission of Kansas, 177 Kansas 683, 281 P. 2d 1080, where the trial court permitted the questioned evidence and the appellate court reversed, stating: “ ... the royalty rate should not have been admitted in evidence”. Also, in the case of United States ex rel. T.V.A. v. Indian Creek Marble Company, 40 F. Supp. 811, it was said: “Fixing just compensation for land taken bj7- multiplying the number of cubic feet or yards or tons by a given price per unit has met with almost uniform disapproval of the courts”. The court further said: “ It was not proper to arrive at a value of land being condemned by taking such quantity of sand and multiplying it either by a royalty rate per yard or by multiplying such quantity by a price sand was currently bringing per yard”. The reason for rejecting the “royalty” rule is that it is based on speculation. It is well settled by our opinions that value must be fixed at the time of the taking by the State and it is impossible to tell exactly how many cubic yards of material will be utilized until it is extracted from the earth. That fact is well demonstrated in the case under consideration. Appellees’ witness stated that part of Cochran’s “pit” could not be used because of the presence of so much heavy equipment. Also, it could develop that some of the material would not be up to standard.
As to Hogan. The same reasoning which applies to the claim of Cochran applies to the case of Hogan. Moreover, if the testimony introduced by Hogan was proper and relevant then the jury should have brought in a verdict in favor of Hogan in the amount of $34,476.00, because the undisputed testimony establishes that amount. If appellee is sincerely in accord with the rule followed by the majority opinion, then it is hard to understand why it has not asked the trial court and this court for a directed verdict for that amount.
Again, Hogan’s estimate of $34,476.00 is based on the fact that in hauling gravel from Bauxite rather than from the Cochran pit, it was forced to haul it an extra distance of about four miles. Let’s examine this proposition. In the first place it is pure conjecture as to where the material from the Cochran pit would have been used. It must follow, therefore, that under this line of reasoning, Hogan’s damages depended on where he used the material. Based on such reasoning, Hogan might have claimed that he had to haul it six or seven miles further and his damage would have been correspondingly larger. This proves conclusively again that Hogan’s damages could not have been calculated (under the majority rule) at the time of the taking by the State.
It is interesting to note what apparent inequities might have resulted in this case under the majority rule. The record indicates that Cochran paid approximately $500.00 for the parcel of land in question only a few years before this litigation began. Under the testimony allowed to be introduced into this record the Highway Department Could have been forced to pay more than $44,000.00 for the two-thirds of Cochran’s property, and, as shown above, it might have been forced to pay even more. The record reflects that the State, under its contract, paid Hogan for hauling select material from Bauxite, and it shouldn’t be forced to pay him for the same thing again.
I gather from the entire record that Hogan suffered no loss by reason of the taking of the said two acres of land. I do agree that my view would prevent him from making a handsome profit by virtue of his securing the lease from Cochran but I do not think the State should have to reimburse him for the loss of that land of a paper profit.
Under the time tested before-and-after-taking rule, when the State paid Cochran the total market value of his two acres of land (including the select material) it paid for all the value the land possessed. Any rule that forces the State to pay more is wrong and impractical. Cochran didn’t guarantee that Hogan could take any select material from his land, and Hogan knew he could take nothing if the State took the land. In other words, Hogan took a free gamble on a neat profit at the State’s expense and he should lose.
Judge Holt joins in this dissent.