dissenting. While I agree with much of the majority opinion, I do not agree with the result or with the application made of our law relating to evidence in eminent domain cases. What we must never forget is that the polestar in these cases is just compensation to the owner of private property— not the easy or economical acquisition of that property for public purposes. Our policy is stated in Article 2, Section 22, of the Constitution, the full text of which is:
The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.
We have said that the words “just compensation” used here mean full compensation. Arkansas State Highway Commission v. Stupenti, 222 Ark. 9, 257 S. W. 2d 37. Our rules of evidence in these 'cases have been directed toward assuring this objective.
I do not agree that the landowner was barred from showing the adaptability of his property as a bridge site, regardless of whether there was competent evidence as to its value as a bridge site.
The landowner is not confined strictly to testimony stating the market value of his property taken or damaged. Generally speaking, he may show anything that a buyer of prudence would consider before he would purchase or that a seller would weigh either before or after the taking. Little Rock Junction Railway Co. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. R. 51; Yonts v. Public Service Co., 179 Ark. 695, 17 S. W. 2d 886; Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706; Arkansas State Highway Commission v. Carpenter, 237 Ark. 46, 371 S. W. 2d 535.
In Little Rock & Ft. Smith Railway v. McGehee, 41 Ark. 202, we affirmed a judgment in favor of the landowner where the condemnor had moved to exclude all evidence relating to the feasibility of establishing a ferry from the lands to the opposite bank.
In Little Rock Junction Ry. v. Woodruff, supra, we adhered to the rule of McGehee, saying that it went no further than to hold that the owner may be allowed to show every advantage which his property possesses, present and prospective, in order that the jury may satisfactorily determine what price it could be sold for on the market. In arriving at the affirmance of the judgment in favor of the landowner, this language was used:
As a general guide to the range which the testimony should be allowed to assume, we think it safe to say that the landowner should be allowed to state, and have his witnesses to state, every fact concern ing 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.
# * *
It can hardly be doubted that, if Woodruff had gone upon the market to sell this property, he would not have concealed the fact that it possessed superior advantages as a bridge-site. Now, if he would not have concealed it from a purchaser, it would be unfair to him for the court to conceal it from the jury. On the other hand, if one had been about to purchase the property, he would hardly have been so obtuse as to overlook an element of value so obvious as its eligibility for a bridge-site.
In Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440, we said:
We do not understand the law to be, as contended by appellant, that because the 10 acres of land taken had no peculiar natural advantage over the next or any other 10 acres north of it, along the bank of the river for half a mile, for a bridge site, that therefore the land selected had no value for that purpose. It was in the line of travel, upon the usual traveled way between a thriving city, Van Burén, on the east side of the Arkansas river, and a large and important city, a few miles to the west, Ft. Smith, with an interurban car line that would cross the bridge, projected between the two cities, and already constructed and in operation down to the ferry upon the Ft. Smith side of the river, and an act of the Legislature providing for the construction of a free bridge within the limits of the city of Van Burén that must have a site for the west approach thereof upon the further bank opposite to said city, and we cannot see why these facts could not all be taken into account in estimating the value of the land condemned for a bridge site, nor why would they not have been such things as the owner of the land desiring to sell it would naturally call to the attention of one proposing to buy. Certainly, no man with capacity to own lands under similar conditions would overlook such facts as were shown to exist here, “the existing business and wants of the community,” and such as could be reasonably expected in the immediate future, in attempting to make a sale thereof, to one proposing to purchase, as an inducement thereto and in substantiation of the value thereof in fixing a price therefor. And this court has often held that, in determining the value of land condemned for public purposes, the same considerations are to be regarded as in the sale of property between private parties, and the convenience and availability of this property for use as a landing for the bridge was a material consideration in fixing its value.
In City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846, we said that in the determination of market value of the owner’s property, the rule established in this state was that the owner may be allowed to show every advantage that his property possesses, present and prospective, in order that the jury may satisfactorily determine what price it could be sold for upon the market.
In Arkansas State Highway Commission v. Hood, 237 Ark. 202, 372 S. W. 2d 387, we said:
Of course, a castle costing a million dollars, built in the desert 100 miles from the nearest habitation may add very little, if anything, to the value of the desert land. But if the land was being taken in a condemnation proceeding the landowner would be entitled to show that a very fine castle was located thereon. Actually, it is conceivable that in some instances structures on the condemned property may cause it to have less market value than if the structures were not there.
In Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 706, we affirmed a judgment in favor of the landowner for an amount in excess of his value expert’s difference in market value before and after the taking, because the circuit judge, sitting as a jury, considered impairment of accessibility and drainage to the owner’s remaining lands, along with cost of restoration, in arriving at the difference between the market value of the whole tract before and after the taking. The owner’s expert witness had not taken into account these elements because he had no knowledge of, and did not take into consideration, the cost of providing ingress and egress or the cost of building a wall necessary to protect the remaining property. The cost of restoration of access and the wall was shown by an engineer who gave no testimony as to value. We reiterated the following statement from Woodruff:
Every element that can fairly enter into the question of market value, and which a business man of ordinary prudence would consider before purchasing the property, should also be considered by the jury in arriving at the difference between the value of the property before and after the taking or damage to it. Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792.
In Scott v. State, 230 Ark. 766, 326 S. W. 2d 812, the only testimony relating to any value of the landowner’s property taken for Pea Ridge National Park, other than for agricultural uses, was largely that of witnesses who stated facts tending to show the property had a value for park purposes. Some of them expressed opinions as to value ranging from $50,000 to $125,000. Most of them expressed no opinion as to value at all. The condemnor’s witnesses placed the value principally for agricultural purposes at $5,000 to $9,067.50, one of them adding $10,000 for “historical purposes.” In increasing the compensation from $16,500 to $30,000, this court quoted the following, inter alia, from Gurdon & Ft. Smith Rd. Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019:
The peculiar circumstances of its location and the character of the surrounding country may be proved in order to show the adaptability of the land taken for the purpose desired, because that would be an element of value which the owner would have a right to insist upon in estimating the value of his land.
In Stuttgart & R. B. R. Co. v. Kocourek, 101 Ark. 47, 141 S. W. 511, the condemnor contended that scope of inquiry as to damages in a partial taking permitted by the court was too large. After restating the guide to the range of testimony in Woodruff, and other cases, we rejected the idea that the range was restricted because of want of any opinion and estimate of value, based on the particular advantage of the property involved. We said:
From these authorities, it appears what range the inquiry as to the damages caused by the condemnation and taking of land for public purposes may properly take, both as to the elements of damage and the witnesses’ opinions and estimates thereon, and we do not find that its scope was extended beyond the prescribed limits in this cause, nor that any error was committed by the lower court on that account. (Emphasis mine.)
In Arkansas State Highway Commission v. Ormond, 247 Ark. 867, 448 S. W. 2d 354, we held that the testimony of the landowner as to the value of his property for catfish farming should have been stricken because it was based entirely upon speculation as to anticipated income. Yet we said:
It must be remembered that only Ormond’s opinion as to the land value before the taking would have been stricken. This would leave for the jury’s consideration, not only Ormond’s opinion as to the value of the remaining lands, but his testimony as to the characteristics of the land and as to a much disputed point/—its highest and best use. This was appropriate. Ormond was entitled to show every advantage that his property possessed, present and prospective, in order that the jury might satisfactorily determine what price it could have been sold for on the market. Arkansas State Highway Commission v. Carder, 228 Ark. 8, 305 S. W. 2d 330; Arkansas State Highway Commission v. O. & B., Inc., 227 Ark. 739, 301 S. W. 2d 5; City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. R. 51; Kansas City Southern Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375. He could state and have his witnesses state any and every fact concerning the property which he would naturally be supposed to adduce in order to place it in an advantageous light if he were selling it to a private individual. Little Rock Junction Ry. v. Woodruff, supra; Stuttgart & R. B. R. Co. v. Kocourek, 101 Ark. 47, 141 S. W. 511. An owner is entitled to show the availability of his property for any and all purposes to which it is plainly adapted, or for which it is likely to have value and induce purchases. Arkansas State Highway Commission v. Brewer, 240 Ark. 390, 400 S. W. 2d 276; Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495; Gurdon & Ft. Smith R. Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019. The same considerations are to be regarded as in a sale between private parties. Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440; Little Rock & Fort Smith Railway v. McGehee, 41 Ark. 202.
We have many times permitted evidence of value-influencing factors to be considered in arriving at just compensation without any testimony relating to their relationship to before and after values, under the rules hereinabove stated, which include:
Details as to kind and character of materials that went into the construction of a home on lots across which a railroad right-of-way was taken. Kansas City Southern Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375
Increased cost of transportation of select material for highway construction from the site nearest to lands taken. Arkansas State Highway Commission v. Cochran, 230 Ark. 881, 327 S. W. 2d 733.
The number, kind and value of various nursery plants on land condemned. Arkansas State Highway Commission v. Hood, 237 Ark. 202, 372 S. W. 2d 387.
Cost of replacing a fence, replacement of shrubs and flowers, moving house back from right-of-way line, replumbing and rewiring house and loss of trees. Arkansas State Highway Commission v. Carpenter, 237 Ark. 46, 371 S. W. 2d 535.
Cost of additional well, additional flume, and new road required because of severance of rice farm by highway right-of-way. Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S. W. 2d 796.
Rental income or value. Desha v. Independence County Bridge Dist., 176 Ark. 253, 3 S. W. 2d 969.
Cost of restoration of a retaining wall. Kirk v. Pulaski Road Improvement Dist., 172 Ark. 1031, 291 S. W. 793.
Reproduction cost of improvements. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30.
Cost of relocation and reconstruction of a combination store building and residence. Arkansas State Highway Commission v. Bryant, 233 Ark. 841, 349 S. W. 2d 349.
Moving costs. Arkansas State Highway Commission v. Jackson County Gin Co., 237 Ark. 761, 376 S. W. 2d 553.
If a landowner is deprived of receiving the value of his land as a bridge site on the theory that there is no demand for such a site by anyone except the condemnor, then our constitutional provision is rendered meaningless in such a case. The rule that value to the condemnor is not the measure of just compensation certainly should not be so applied. True, just compensation is to be measured by market value, but that value is to be measured by the price the land would bring in the market where sellers and buyers are informed as to all uses for which it is available and adaptable. We have previously avoided such a result. See Ft. Smith & Van Buren Bridge District v. Scott, supra, as quoted.
In Little Rock & Ft. Smith Ry. v. McGehee, 41 Ark. 202, where the owner sought to recover for his land as a ferry site this court said that, although no ferry may have ever been established there, it was possible, and maybe probable, that a change of circumstances or the development of the country might require one in the near future. The condemnor had contended that this use of the property should not be considered, because of supposed exclusive privileges in the proprietors of a ferry one mile away, and the doubt whether a ferry license would ever be granted and a ferry actually established.
In Scott v. State, supra, we said:
It seems to us that the very fact that the State desires to acquire this land so that it may be deeded to the United States for national park purposes is a strong indication that appellant’s land has a peculiar value.
I submit that, even if appellant’s “motion for a directed verdict” could be considered as a motion to strike Hood’s value testimony, which I do not concede, it cannot be the basis for reversible error, because it came too late. In Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S. W. 2d 874, we held that the landowner’s testimony was based upon an improper standard for market value and did not constitute substantial evidence. Still we said that failure to strike his value testimony was not error when the condemnor did not object or move to strike the testimony until after the landowner had presented the testimony of an expert witness and rested. There we said:
The same authorities demonstrate that inexcusable delay in making a motion to strike objectionable testimony may be grounds for denial of the motion and that a court may properly overrule such a motion made after a witness has been excused from the stand, or discharged from attendance at the trial or after other witnesses have testified or after the proponent’s case has been concluded. It may well be that the proponent would be severely prejudiced by a delay in making a motion to strike or that the trial judge should not be expected to put the testimony to which belated objection is made in proper perspective to make a correct ruling after other witnesses have testified, particularly where a close question is involved and the exact words of a witness may be the determining factor. The trial judge is in a much better position than an appellate court to judge whether such a motion is timely under the circumstances existing when it is made. He should only be held to the exercise of a sound judicial discretion under the circumstances existing here. We cannot say that denial of the motion of appellant was an abuse of discretion so we find no error on this point.
The trial judge sustained appellant’s objection to Hood’s stating the basis of his opinion on the value on a bridge site. Appellant did not object to Hood’s stating his opinion as to the value, and withheld objection until he began to state his basis. Then the objection went only to the basis, not to the value opinions. Appellee then made an offer of proof as to what this testimony would have been. Thereafter, no further testimony was given on this subject by Hood, and appellant did not cross-examine him on his valuation of the property as a bridge site. I would be unable to say that the trial judge abused his discretion in this regard. There must have been some tactical reason why appellant did not object to appellee’s value testimony based on the property’s adaptability as a bridge site and did not make a timely motion to strike it. Appellant should not be heard to say that, under the circumstances, there was an abuse of discretion in denying a belated motion.
Turning to the argument that Hood’s testimony did not constitute substantial evidence, because he used an improper basis, i. e., the saving to condemnor in utilizing this site, rather than the one it found next best, I would point out that the majority opinion entirely overlooks the fact that this basis of valuation was never known to the jury and that Hood valued the whole property at $648,000 for industrial purposes before the taking and the remainder at $15,000 after the taking. Appellant does not argue that this testimony was inadmissible. It does make a cursory argument that it is not substantial, which hardly extends beyond a bare statement that it is not. Assuming for the moment, but not conceding, that appellant is correct, there is no ground for reversal on this basis either. The owner’s value testimony, both that relating to a bridge site and that relating to industrial uses, was manifestly not prejudicial, and was obviously disregarded by the jury. It obviously did not enhance the award, and the verdict was supported by other substantial evidence. Arkansas State Highway Commission v. Ormond, 247 Ark. 867, 448 S. W. 2d 354. Time and space limitations prevent elaboration, but I do not consider that appellant demonstrated that the opinion of appellee’s expert witness Garland Hudson was without any reasonable basis. He testified that the whole property had a value of $150,400, and the remainder a value of $16,000, making a difference of $134,400. The jury verdict was substantially less.
Other points covered in the majority opinion have to do principally with points raised by appellee on cross-appeal. I concur in the majority’s holding as to evidence of the tax assessment. I do not agree with that as to difference in construction costs. I think that the evidence offered should have been admitted, and I do think that authority for its admission is found in Gurdon & Ft. Smith Railroad Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019 and other cases. I would enlarge upon the majority’s quotation from that case. This court there said:
Counsel for defendant urge 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 along any possible route for a railroad, because of the great cost in making any other site feasible for the location of a railroad through these mountains; and in this connection the witnesses gave an estimate of the great expense and cost in preparing another site for railroad purposes in comparison with this site, to which testimony objection was made. 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. But we do not think that this contention is well founded. The measure of the compensation which the landowner is entitled to recover from a railroad company which has appropriated same for its right of way is the market value of the land so taken. In estimating that market value, it is perfectly competent to consider the availability and adaptability of the land for the very purpose for which it is taken by the railroad company as an element of value which would attract any buyer for that purpose. 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. This would not be estimating the damages by reason of the value of the property to the corporation which appropriated it, or by reason of its necessities to acquire same; but would be simply showing an element of its value to any one who might desire it for that purpose. The owner has a right to obtain the market value of the land based upon its availability for the most valuable purposes for which it can be used. The peculiar circumstances of its location and the character of the surrounding country may be proved in order to show the adaptability of the land taken for the purpose desired, because that would be an element of value which the owner would have a right to insist upon in estimating the value of his land. In the case of Boom Company v. Patterson, 98 U. S. 403, the Supreme Court of the United States has laid down the rule that, in determining the value of the land appropriated for public purposes, the inquiry is what is it worth from its availability for all valuable uses. This rule has been approved by this court in a number of cases. [Citing cases.]
The market value of property is to be determined, not by the price of the property for any one particular purpose, but for any and all purposes for which it is likely to have value and induce purchases. And so it is competent to show that it has a value for a peculiar purpose which would attract buyers and any testimony is competent to show its adaptability for that peculiar purpose. Its availability for such peculiar purpose may be proved by showing its advantages over other property that might also be probably available for such purpose, for that would be an element of value that any buyer would take into consideration if he wished to purchase the property for such purpose. Testimony, therefore, of the cost and expense of placing other property that might be available for the desired purpose in that condition of the property taken, would tend to show the advantages of such property and its true market value to prospective buyers. This was the character of the testimony of which complaint is made. But we think that this testimony was competent. This testimony did not tend to base the value of this gap or pass upon what it was worth to the defendant or upon how profitably it might be employed or used by it. The purpose and tendency of this testimony was to show that this site had a special pecuniary value over any other place in that mountainous section of the country for the location of a railroad, and thereby to show its availability and adaptability for railroad purposes. Its advantageous location was an element of value, and in determining what was its market value it was competent to show the facts and circumstances which made that location advantageous for railroad purposes which thus gave to it this element of value. 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. [Citing cases.]
The distinction made by the majority is one without a difference. What is the difference in building a fill and building a span? One’s redesigning his structure to fit mother earth may even be less costly than trying to make mother earth fit his designs, and there is no indication or likelihood that the channel of the Arkansas River would or could be changed at the alternate sites considered to accommodate a bridge at any of them that would minimize hazards to navigation to the extent required. The additional construction at the next best site may well have been only a substitute for an even more expensive fill. The result of a survey by appellant’s consulting engineers was very favorable to this location. This was the point at which the bridge would be the shortest and where the crossing could be at a right angle to the stream. Leo Tyra, a civil engineer, testified that he concurred in the report of the consulting engineer, just as did appellant’s bridge engineer at the time the decision was made, and, as a matter of fact, appellant itself. It appeared obvious to Tyra that the location of the bridge was based upon selection of the site on appellee’s side of the river and the terminus on the other side then located to the best advantage to meet design criteria. Hood also testified, in camera, that he had studied the report of the consulting engineers and that they had considered a number of other routes, but abandoned them when preliminary investigations indicated disadvantages not inherent in locations on appellee’s land and another site. He also testified that one advantage lay in the fact that appellee’s land afforded a high and stable bank—one that had not moved for as long a period of time as available pictures of the river would reveal.
I do not feel that the majority’s attempt to distinguish Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. R. 51, is based upon a valid distinction. The court did not determine the admissibility of the evidence on the question whether the interrogatories to the witness were misleading. When other statements of the court are considered, it is apparent to me that the court there held that testimony as to savings and pecuniary advantages in the utilization of one bridge site rather than another is admissible. The full text follows:
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?” 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 and above?” or, “What were the pecuniary advantages offered by this point for building a bridge?” It is very apparent, however, from the argument, that the objection taken by counsel is not the objection which we take to this interrogatory. He objects to any and all testimony about a bridge-site, while we only criticise because we are disposed to suspect that counsel for appellees introduced the word “value” in this connection as a sort of covering for the rather scant testimony with which their case was clothed. In fact, if there had been an ample supply of direct testimony as to the market value, we cannot say that the form of this interrogatory would have called for any animadversion. We think, however, that if any mistaken impression was made upon the minds of the jury by this method of examination, it was effectually removed by the emphatic and repeated injunctions contained in. the instructions, to the effect that the market value should be considered by the jury as the aim and end of their verdict.
In the present case, the court gave appropriate instructions on the measure of just compensation, including the following, requested by appellant:
In this case, just compensation which the Constitution of Arkansas entitles the owner to receive for land on account of the taking for highway purposes is the difference between the fair market value of the defendants’ land as of the date of taking, which was March 29, 1968, and the fair market value of the land remaining immediately after the taking, considering the facility constructed and in place.
You are instructed that in order to consider the highest and best use of the property sought to be acquired as that of a bridge site, you must first determine that the 2.01 acres are peculiarly adapted for such use.
In arriving at the market value of the land before the taking, you are not limited to the uses to which it is at the time applied, but the owner is entitled to compensation considering the market value for any use for which the property is suitable, having regard to the existing business or needs of the community, or such as may be reasonably expected in the immediate future. The owner has the right to obtain the market value of his land based upon its availability for the most valuable purpose for which it can be used, whether or not he so used it.
The holding in Woodruff certainly seems 10 be applicable here. We thought so in Arkansas State Highway Commission v. Carpenter, supra; Pulaski County v. Horton, supra; Kirk v. Pulaski Road Imp. Dist., supra; Kansas City Southern Ry. Co. v. Boles, supra, as well as in Vaught.
In Missouri Pacific Railroad Co. v. Clements, 225 Ark. 268, 281 S. W. 2d 936, we affirmed an award of $3,200 for land worth $700 as timberland. This was based on 80,000 cubic yards of fill dirt worth 4í per yard, taken from the owner’s land, there being no other evidence of market value. Significantly, the court said:
It is undisputed that the location and terrain of the land destroyed made it by far the most suitable and economical in the area for the railroad’s use. The use of any other available land in the area would have entailed a much longer haul and added considerably to the cost of the project.
I would affirm the judgment.
I am authorized to state that Chief Justice Harris and Holt, J., join in this dissent.