Appellee, Southern Development Corporation, hereinafter called Southern, prior to this suit, was the owner of an 8.3 acres tract of land lying north and east of the Arkansas River upstream from the City of Pine Bluff. The tract fronts 940 feet on the River. The Arkansas State Highway Commission, hereinafter called Commission, filed this condemnation suit for the purpose of taking 1.60 acres of the tract in fee and a temporary easement on a smaller piece measuring 110 feet by 151.5 feet for a total of 2.01 acres. After the taking two tracts remained, one lying northwest of the bridge containing 3.31 acres and the other lying south of the bridge containing 2.98 acres. Preliminary to the order of possession the Commission deposited $2,500.00 with the Court as estimated just compensation. In its answer Southern contended that the land was adapted as a bridge site, commercial site or industrial site for motel, marina and recreational facilities or for other use considering its river frontage, elevation and accessibility to the urban area of Pine Bluff. Southern’s answer as finally amended claimed $634,-000.00. The jury awarded $35,000.00. The Commission has appealed and Southern has cross-appealed.
Points relied upon by the Commission, with some slight renumbering from the brief, are:
1. The Court erred in permitting the jury to consider the question of whether or not the highest and best use of the land was that of a bridge site.
2. The Court erred in permitting the jury to consider the testimony of Jim Hood as to the value of the land as a bridge site.
3. The verdict is excessive in that there is no substantial evidence to support it.
On its cross-appeal Southern contends that the trial court erred in the following particulars:
1. In excluding the testimony of L. P. Carlson and Leo Tyra as to the amount of savings on cost of construction of the bridge at this particular site over that of the next most feasible site;
2. The exclusion of the testimony of Jim Hood as to the basis of his opinion on the value of the land as a bridge site;
3. In the givirijg of the plaintiff’s instruction number 12 which told the jury that it should consider the value of the land the landowner place on the property for tax purposes as evidence of its true value.
Southern contends that this court has the authority to and should increase the jury verdict to the sum of $207,500.00 upon Southern’s consenting that the temporary construction easement be made permanent for highway and bridge purposes. The Commission contends that this court has the authority to and should reduce the verdict to $3,500.00, which is the market value figure established by the Commission’s appraiser. Arkansas State Highway Commission v. Bingham, 231 Ark. 934, 333 S. W. 2d 728 (1960).
The Commission’s points 1 and 2 can be rephrased into one contention which is that there was no testimony as to the special adaptability of this property as a bridge site and for that reason the jury should have been directed to disregard any valuation opinion based upon such adaptability. We think that just the reverse is true, which is that there was no competent testimony as to the value of the property as a bridge site and therefore its adaptability as such should not have been submitted to the jury. We, therefore, reverse on direct appeal.
Before demonstrating this result from the record, it will be helpful to set out the governing rules from prior decisions of this court. It is interesting to note that both parties cite substantially the same decisions of this court, with a few exceptions, to sustain their respective positions. There is apparent agreement as to the establishment of the following rules concerning the taking of private property for public use.
Private property shall not be taken, appropriated or damaged for public use without just compensation therefor. Arkansas Constitution, Article 2, Section 22. The title to land is always held upon the implied condition that it will be surrendered to the government when the public necessities demand and when full compensation has been tendered. L. R. Junction Ry. v. Woodruff, 49 Ark. 381 (1887). The true measure of just compensation is the “market value of the property”. L. R. Junction Ry. v. Woodruff, ibid.
“The owner in parting with his property to the State is entitled to receive just such an amount as he could obtain if he were to go upon the market and offer the property for sale. To give him more than this would be to give him more than the market value and to give him less would not be full compensation.”
In arriving at this market value the approach is to consider what has been taken from the owner, in other words, what the owner has lost, disregarding its value to the condemnor. The objective is to arrive at the market value, or the value in the market, of the property taken. It is thus opposed to the subjective consideration of what the condemnor has gained or what is the value of the property to the person or entity taking the same. Nichols on Eminent Domain, Volume 3, Section 8.61, page 49.
“As a general guide to the range which the testimony should be allowed to assume, . . . the landowner should be allowed to state, and have his witnesses to state, every fact concerning the property which he would naturally be disposed to adduce in order to place it in an advantageous light if he were attempting to negotiate a sale of it to a private individual. . . .In offering testimony on this issue the owner was not limited to any pre-existing use of the land. If it was1 of little value as a farm, or for common uses, and was of great value as mineral land or as a townsite, that fact might be shown, though it had never been so used.” St. L. I. M. & S. R. Co. v. Theo. Maxfield Co., 94 Ark. 135, 126 S. W. 2d 83 ( ).”
“. . . the owner had the right to obtain the market value of the land, based upon its availability for the most valuable purposes for which it can be used, whether so used or not.” Yonts v. Public Service Company of Arkansas, 179 Ark. 695, 17 S. W. 2d 886 (1925).”
Market value is a factual issue peculiarly within the province of the jury and to be proved by the owner as a fact.
“. . . we are asked to review the verdict upon the testimony. This is a delicate duty in any case, and especially so in a case where the sole issue is one as to value. This is so peculiarly within the province of the jury; . . . nothing but an extreme case would justify our interference. L. R. Junction Ry. v. Woodruff, ibid.
In addition to the principal issue of fact, which is the market value, sub-issues of fact can develop on the question of adaptability of the parcel to the various uses urged by the owner. The ultimate issue is the market value but other dependent factual issues can develop in the process of proving the ultimate issue.
In this case Southern pleaded the issue of the peculiar adaptability of this property as a bridge site. We think this is one of those possible characteristics which could be urged by a landowner as a contributing factor to the market value of his parcel. Further, we think that in this case there was proof introduced as to the existence of that characteristic of such substantial nature that reasonable minds could draw different conclusions therefrom as to such adaptability and, therefore, that a jury question was made on the issue of adaptability. However, more is required before the issue can be submitted to the jury. Proof of a market value for the parcel for that use must be made. Mere proof of adaptability, without more, does not establish such market value. There must be such demand for the property for that use.
The only proof offered here as to such value as a bridge site was the testimony of Jim Hood establishing a difference in before and after value of $640,000.00. Jim Hood is president of Southern. He testified to training and experience sufficient to qualify himself as an expert in real estate management, development and appraisement. He testified on direct examination that, in his opinion, the highest and best use of the property was as a bridge site. He further testified that, in his opinion, for that use, the difference in the fair market value of the 8.3 acres before and after the taking was $640,000.00. If that were all that was in the record we think that no reversible error would be present because an expert is entitled to state his opinion as to market value on direct examination without further explanation and the same constitutes substantial evidence sufficient to support a jury verdict unless additional information is brought out demonstrating that such expert has no fair and reasonable basis for his opinion. In other words, the opinion of an expert is given the weight of evidence prima facie and, unless thereafter exposed as having no fair and reasonable basis, constitutes substantial evidence upon which a jury verdict can be based. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S. W. 2d 436; Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S. W. 2d 794 (1963).
However, in the direct examination Southern’s attorney attempted to bring out the basis for his opinion. Counsel for the Commission anticipated the basis and objected to the same being brought out. The trial court sustained the objection. Even at that point we think that no reversible error had been committed. However, Southern’s counsel then made an offer of proof on the basis of the opinion. The basis thus brought out was revealed to be that the witness had acquired bridge cost information from the report made by the consulting engineers to the State Highway Department on the proposed bridge construction for which condemnation was brought. This is referred to by the witness and other witnesses as the Brighton Engineering Report. This report showed, according to the witness, that construction of the bridge on this site as opposed to the next most feasible site, would cost an estimated $831,500.00 less. The witness testified.
“And. from that I determined that this particular site, in my estimation this particular site, attributed $640,000.00, a $640,000.00 advantage to the bridge.”
This testimony exposed the opinion on value to be without “a fair and reasonable basis” without which even the opinion of an expert fails as substantial evidence and must be stricken. Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S. W. 2d 794 (1963). It is true as pointed out by Southern that no motion to strike this testimony was made by Commission’s counsel. However, counsel did seek to exclude from the jury the adaptability question by motion for directed verdict and by a requested instruction, both of which were denied by the court. This was sufficient to raise the question as to the presence in the record of adequate proof to raise a jury question on the market value of the land as a bridge site. The Jim Hood opinion, having been exposed as having no “fair and reasonable basis”, was inadequate as such proof. The incompetency of this testimony was referred to by the commission’s attorney in arguing his motion for directed verdict to the court. There was no other proof; therefore, the issue of the value as a bridge site should not have been submitted to the jury.
We feel, therefore, that the motion for directed verdict on the issue of peculiar adaptability as a bridge site should have been granted for failure of proof on value even though there was substantial proof on adaptability. When the landowner exposed the basis of his value figure as not being a fair or reasonable basis, the effect was to leave the bridge site adaptability without proof of value. Without such proof of value there was no way the jury could have arrived at a figure for the market value of the land by reason of its adaptability as a bridge site. Therefore, the question of its value as a bridge site should not have been submitted to the jury.
We do not intend by this to say that the trial court should have excluded proof offered on the adaptability of the parcel as a bridge site until after some proof was offered on its market value for that use. In other words, we do not mean to say that proof of its market value for that use must come in as a condition precedent to proof as to adaptability for that use. We do not intend to set up any priorities as to the sequence of the admission of proof. What we do intend to say is that after all of the proof is in and instructions to the jury are being considered, no instruction should be given permitting the jury to consider the question of the market value of the property for any use on which there has been no proof as to such market value for that use even though there may have been proof as to its adaptability for that use. Further, if an instruction is requested admonishing the jury that it should not consider the question of the value of the property for that use such instruction should be given.
On retrial if proof can be made of its value as a bridge site along with the proof of its adaptability, the jury should be permitted to consider it.
We hold that the opinion on value of $640,000.00 was not proper because it violates the rule that the value of the site to the condemnor is not the measure of damages. Mr. Hood was simply taking the dollar amount of money saved in construction costs by the condemnor in placing his structure on this parcel as opposed to the next most feasible parcel. True the savings were discounted some in arriving at the market value figure, approximately 25%, but the market value figure is still obviously part and parcel of the “savings” in construction costs at the selected' site over the next most feasible site. No more direct violation of the rule against considering the subjective value of the site to the taker could be imagined. He is required to divide his savings with the landowner on a one-fourth-three-fourths basis. Since that is the basis of the value figuré given by Jim Hood, and since it is in direct conflict with a cardinal rule of condemnation law, the opinion figure simply cannot stand. Without it there is no guide for the jury as to the market value of the property as a bridge site.
We have not overlooked the case of Gurdon and Fort Smith Railroad Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019 (1911), cited by Southern. Southern has done well to call our attention to that case because at first blush it appears to sustain the position of Southern on this issue. That case involved the condemnation of a right-of-way for railroad purposes through the mountainous terrain of Montgomery County near Caddo Gap. The landowner introduced testimony of a number of civil Engineers who, according to the language of the opinion:
Page 241:
“testified to facts tending to show a demand for railroad construction in that section of the country, and that this Gap or Pass . . . was practically the only feasible route through this mountainous country. . . . Counsel for defendant urged that the Court erred in permitting these witnesses to testify that the land taken by defendant had a pecuniary advantage for a railroad site over all other lands in this vicinity. . . because of the great cost in making any other site feasible for the location of a railroad through these mountains; . . . the witnesses gave an estimate of the great expense and cost in preparing another site for railroad purposes in comparison with this site, ... It is urged that this testimony in effect based the value of the site taken upon the benefit that it might be to defendant and of its necessities to acquire that particular property rather than on the actual market value thereof and the loss to the plaintiff by the defendant’s appropriation thereof.”
Thus a violation of the rule against basing value proof on the benefit to the condemnor was urged there and rejected by this Court. This Court said:
“In order to show the adaptability of the land taken for the purpose desired, it is competent to show the cost and expense that would be necessary to put other land in the condition of the land taken, which condition gives it a peculiar value for the purpose for which it is appropriated.....The cost and expense of placing any other site in that section of the country in a condition available or adaptable for railroad purposes which the site in controversy possessed would tend to prove the peculiar advantages of this location for such object and its adaptability for such purposes. It was not error to admit such testimony for that purpose.”
The “purpose” for which the testimony there was admitted was to show adaptability and “special pecuniary value”. Admittedly, this gets awfully close to violating the rule against considering value to the taker rather than loss to the owner. There may have been more of the former in this approach in the Vaught case than we had appreciation for at the time and we feel that it should be limited to its special facts.
The prime point, however, is that the costs and differences in costs treated in the Vaught case were those required to reshape the ground as, for example, the making of fills, cuts and tunnels. Money spent on the ground is far different from money spent on structural improvements. There is a basic and built in limitation upon costs of reshaping the mother earth to suit man’s needs. On the other hand, when one leaves the earth and commences to consider the differences in costs of structures to be stationed upon the earth, there is no limit. The condemnor could be intending to locate an improvement costing one thousand dollars or ten billion dollars and the costs savings could vary in like extremes from one possible site to the next.
Southern contended in the trial court and contends here that the inquiry on costs savings of construction at one site over the next most feasible site was introduced with approval by language used in the opinion of this court in L. R. Junction Ry. v. Woodruff, 49 Ark. 381, 395, 396 (1887). That language is preceded by the following:
“One or more witnesses for appellees were asked to give the comparative cost of building bridges at different points along the river front above and below the Point of Rocks, or rather to state the difference in such cost. The witnesses were also asked, ‘What is the value of the property for bridge purposes?’ ”
That objection was taken to this line of questioning by appellant’s counsel is shown by later language of the court:
“It is very apparent however from the argument that the objection taken by counsel is not the objection which we take to this interrogatory.”
This reflects that the court also considered the line of inquiry improper, but for a different reason than did opposing counsel. The court then suggested, and this is the language relied upon by Southern:
“It would have been less misleading to have asked “What would be saved by building a bridge at this point as compared with other points below or above?’ or, ‘What were the pecuniary advantages offered by this point for building a bridge?’ ”
To say that one question is less misleading than another leaves the implication that both are misleading to some degree. We think this falls short of submitting the “less misleading” question as a guide for future use or its line of inquiry as permissible in proof of market value on a parcel of ground adapted as a bridge site.
We recognize that Southern is going to have a problem on retrial of proving any market value for a bridge site. Demand is an essential element of market value. If there is no demand there is no market value for that use of the property. It is easy to find property in remote and unpopulated areas that would be readymade for some intensive use that would give it tremendous value if only it were located somewhere else. If there is no demand for that use at that location the property does not have value for that use in the market. This is a necessary risk of ownership. The owner, in proving his market value, must prove a demand. This demand must be one other than that of the taker. The taker’s need must be disregarded. If this landowner cannot prove a sufficient demand for bridge sites in this area, other than that of the Commission, to establish a market value on bridge sites, then he has no market for bridge sites and is not entitled to have its value as a bridge site considered.
In the Woodruff case, previously cited herein, this Court stressed the necessity of a showing of demand as a component of market value.
Page 393:
“Of course it does not follow that because a particular spot of ground constitutes a good bridge site, that it therefore has great market value. There may be no reasonable probability that anyone will ever want to build a bridge at that point. This probability is an essential condition of value in such cases.”
For purposes of retrial, we feel it necessary to pass on the three points made by Southern on cross-appeal.
As to the exclusion of Jim Hood’s testimony as to the basis of his opinion, this ruling came about in an unusual manher. Ordinarily the basis of the opinion of an expert is gone into much more thoroughly on cross-examination than on direct, and thus there is no objection to the evidence on the basis. But here the attorney for the Commission was already aware of what the basis was going to be and objected to the jury hearing it. On the other hand the landowner’s attorney wanted the jury to hear it. Since it had a direct bearing on whether the basis was “fair and reasonable” it should have been admitted. But, of course, when it is admitted it reveals the fact that the opinion of the witness as to market value of the land as a bridge site has no “fair and reasonable basis” and is subject to a motion to strike. Thus, the Commission, instead of objecting to this proof, should have been attempting to develop it, and the landowner, instead of attempting to develop it, should have been leaving it untouched. But the fact that the parties, by mutual misconception, got switched on sides of the issue should not obscure the fact that it is proper to show the basis of an expert’s opinion. The proof should have been admitted for that purpose and then the directed verdict should have been granted. The costs proof would not have been admissible except to show the basis of the expert’s opinion. It would not have been admissible as direct proof on market value.
What we have just said also covers the trial court’s ruling excluding the costs savings testimony of the witnesses L. P. Carlson and Leo Tyra.
We hold that the third point of Southern is well taken. The record is identical to the situation found in Arkansas Highway Commission v. McMillan, 247 Ark. 419, 445 S. W. 2d 717 (1969) in that there is no proof that the landowner made the assessment revealed by the public records but only that it was shown “by the courthouse records”. Instruction number 12 should have been refused for lack of proof to support it.
Reversal on both direct and cross-appeal and remanded for a new trial.
Byrd, J., not participating. Harris, C. J., and Fogleman and Holt, JJ., dissent.