This is an eminent domain proceeding by which the State Highway Commission seeks to condemn the necessary property rights to enable it to convert an existing highway across the appellees’ farm lands into a controlled-access facility. See Act 383 of 1953; Ark. Stats. 1947, Title 76, Ch. 22. In asking the jury for an award of substantial damages the landowners relied mainly upon the fact that their plantation will be effectively cut in two, lengthwise, by the new thoroughfare, since they will be prohibited from crossing it at any point along its three-mile passage over their property. The jury fixed the appellees’ compensation at $75,250. In seeking a reversal the Commission’s principal contention is that the landowners’ right to cross the public right of way had already been taken and consequently the loss of that right is not a compensable element of damage in this case.
The background facts are not in dispute. The appellees’ land may be referred to as the Woollard plantation. It contains 2,800 acres and is an irregularly shaped tract whose greatest dimension is its length north and south. Prior to 1952 the land was not traversed by any national highway. In that year the State Highway Commission relocated a portion of U. S. Highway 61 and for that purpose condemned an easement, 250 feet wide, running the length of the Woollard property. The landowners protested that the easement was unnecessarily wide, but we upheld the Commission. Woollard v. Ark. State Highway Comm., 220 Ark. 731, 249 S. W. 2d 564. That ease was later settled without a trial, and that is the taking now relied upon by the Commission to defeat the principal factor in the appellees’ damages.
A controlled-access facility may be broadly described as' a superhighway which motorists can enter and leave only at designated interchanges, usually some miles apart. The 1952 condemnation proceeding was not instituted for the purpose of acquiring a right of way for a controlled-access highway; indeed, Arkansas then had no statute authorizing the creation of such a facility. At that time the Commission planned to construct, and later did construct, a conventional two-lane highway upon the easement it was acquiring. The unusually wide right of way was meant to allow the Commission to add another two lanes sometime in the future, thus providing the customary type of divided thoroughfare with two lanes for northbound traffic and two for southbound traffic.
The proof shows that the original construction pursuant to the 1952 taking did not seriously interfere with the operation of the Woollard plantation. Within the limits of the property the new highway, U. S. No. 61, was crossed at grade by four county roads and by at least four private farm roads. The owners continued to conduct their enterprise as a unit. There is ample proof that the relocation of Highway 61 did not in itself substantially lower the value of the Woollard lands.
Later on, however, this part of Highway 61 was taken into the new interstate highway system. The Highway Commission then filed the present proceeding against the Woollards and others, to the end that the existing highway may be converted into a controlled-access facility. The Commission seeks, first, to acquire the fee simple title that underlies its existing easement, because the statute requires that the State own a limited-access facility in fee. Ark. Stats., § 76-2205. Secondly, the Commission is condemning a little more of the Woollard land, about an acre, which the jury valued at $250. Finally, it was stipulated that the Commission’s declaration of taking is “for the acquisition and control of access rights of land adjacent and contiguous to the original highway right of way.”
The controlled-access facility, when completed, will consist of four parallel two-lane paved highways. The two double highways in the middle will be one-way routes, one carrying northbound through traffic and the other carrying southbound through traffic. The outer highways will be two-way service roads, carrying local traffic and affording access to the inner lanes only at the interchanges. ,
No interchange is to be built within the limits of the Woollard lands. For these landowners and their employees to cross from one side of the plantation to the other they must travel the service roads to and from the nearest interchanges, one being an overpass about half a mile north of the Woollard property and the other being an overpass about equally far south. This bisecting of the plantation will prevent its being operated in the future as a single unit. Additional headquarters must be built, additional machinery must be purchased, and other additional expense must be incurred in operating as two farms what was formerly one undertaking. There is an abundance of substantial testimony, given by qualified expert witnesses, that the Woodards’ total severance damages will materially exceed the jury’s verdict. Indeed, we emphasize the fact that nowhere in the Highway Commission’s brief does it question the amount of the award if the landowners’ inability to cross the highway is a compensable element of damage. What the Commission contends is that the jury should not have been permitted to take this severance damage into account at all.
The Commission’s argument may conveniently be considered in two separate aspects. First, was the Woollards’ right to cross from one side of their property to the other taken by eminent domain in 1952? Secondly, if not, can that right be taken in the present proceeding through an exercise of the police power, without compensation to the landowners?
On the first point we think it clear that the Wool-lards’ right to cross the public easement was not within the issues of the 1952 condemnation. If 'that proceeding had been - intended to bisect the Woollard plantation as effectively as if a high stone wad had been erected down the center of the property it cannot he doubted that the landowners would have been entitled to commensurate severance damages. St. Louis, Ark. & T. Railroad v. Anderson, 39 Ark. 167; Ashley, Drew & N. Ry. Co. v. Gulledge, 121 Ark. 143, 180 S. W. 222; Ark. State Highway Comm. v. Speck, 230 Ark. 712, 324 S. W. 2d 796.
In 1952, however, the Woollards had no reason to anticipate that their commonplace privilege of crossing the State’s easement might someday be destroyed by the installation of a controlled-access facility. Our legislature had not then adopted a statute permitting the creation of limited-access highways. We doubt if in 1952 there was anywhere in the entire state a stretch of rural public road as much as a quarter of a mile long, much less three miles long, upon which crossings were prohibited.
The Highway Commission itself has often recognized that after a condemnation an abutting owner whose land has been cut in two still has a right to cross the road. This recognition is quite apparent in those cases in which the Commission has sought to mitigate its liability for severance damages by voluntarily providing the landowner with a means of crossing the new highway. For example, in Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738, where a relocation of Highway 64 divided the land into two tracts, the opinion observed: “The Highway Department . . . agrees to build an underpass under the right-of-way whereby livestock can be moved from the severed 55 acres south of new 64.” In a similar situation we remarked in Ark. State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S. W. 2d 791: “According to the undisputed evidence the Highway Commission will provide a grade crossing.”
It is plain enough that in the Byars case the Commission would not have been permitted to reduce its liability by providing an underpass and then later on contend that it had already acquired by eminent domain (as distinguished from the police power) the right to close that underpass. So in the Woollard case. In 1952 the Woollards could not have successfully asserted their present claim, for there were available after the taking four public crossings and at least that many private crossings. In negotiating with the Woollards the Highway Commission was entitled to rely upon those crossings to reduce its liability to the landowners. It cannot now take the inconsistent position that the Woollards’ right to cross the highway was bought and paid for in 1952.
We may add the observation that, had the present claim been asserted in the 1952 proceeding, the claim not only would have been disallowed but also should have been disallowed. There was then no substantial basis for supposing that the Woollards’ right to cross the public easement would ever be disputed. If they had been entitled to recover compensation upon the theory that their plantation was being effectively cut in two by a conventional highway, the judgment in their favor would have been a precedent exposing the State to similar speculative and even fictitious claims in every case in which the Commission condemned a right of way across a tract of land. It seems clear that such a holding would be neither legally sound nor in the public interest.
The second aspect of the Commission’s argument is more perplexing. Here it is contended that after the State has acquired a highway easement, and especially one 250 feet wide, it is entitled to put into effect, without compensating an owner whose land bestrides the highway, a traffic regulation which prevents any person from crossing the public right of way except at specified interchanges.
For the most part the authorities cited by the Commission do not reach the present situation, for they involve land lying entirely on one side of the street or highway. It is settled that in that situation the public authorities may erect a median strip down the center of the thoroughfare or may in some other manner prohibit left turns or two-way traffic without compensating the abutting landowner for his inconvenience or for the loss of business that results from the change in the flow of traffic. City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187; Holman v. State, 97 Cal. App. 2d 237, 217 P. 2d 448; People v. Sayig, 101 Cal. App. 2d 890, 226 P. 2d 702; Dougherty County v. Hornsby, 213 Ga. 114, 97 S. E. 2d 300; Langley Shopping Center v. State Roads Comm., 213 Md. 230, 131 Atl. 2d 690; Turner v. State Roads Comm., 213 Md. 428, 132 Atl. 2d 455; Muse v. Miss. State Highway Comm., 233 Miss. 694, 103 So. 2d 839; Brady v. Smith, 139 W. Va. 259, 79 S. E. 2d 851. This general principle is also being applied by us in another case decided today, Ark. State Highway Comm. v. Bingham, 231 Ark. 934, 333 S. W. 2d 728, wherein we are holding that a loss attributable merely to the diversion of traffic is not compensable.' "We find three cases involving tracts on opposite sides of the highway, but these decisions are readily distinguishable on the facts and need not be discussed. Iowa State Highway Comm. v. Smith, 248 Iowa 869, 82 N. W. 2d 755; Warren v. Iowa State Highway Comm., 250 Iowa 473, 93 N. W. 2d 60; Carazalla v. State, 269 Wis. 593, 70 N. W. 2d 208, rehearing granted, 270 Wis. 593, 71 N. W. 2d 279.
It is quite apparent that the doctrine of the cases cited, involving land on only one side of the highway, would have to be materially extended to reach the situation now before us. In that event it would be necessary to determine whether the exercise of the police power was being carried so far as to amount to a taking of private property. As the court pointed out in the leading case of Pennsylvania Coal Co. v. Mahon, 260 U. S. 393: “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. ... We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”
We do not reach, this question, however, for we are convinced that in the case at bar the State is actually-exerting its power of eminent domain. It thus becomes unnecessary for us to decide whether the same result might constitutionally be attained through the exercise of the-police power alone, without payment to the landowner.
To begin with, the controlled-access highway statute contemplates a taking, for it specifically provides that the State’s right of way must be owned in fee simple. Ark. Stats., § 76-2205. Of course the legislature knew that an existing easement could not be enlarged to a fee by means of a mere police regulation, and there is no good reason to suppose that the legislature meant to divide the transaction into two steps, one involving the police power and the other the power of eminent domain.
The particular situation now before us will evidently arise very infrequently in Arkansas, for only in rare instances will the State own a highway easement that is sufficiently wide to accommodate a controlled-access facility and that is also so located as to be suitable for that use. In the usual case the Highway Commission will be compelled to condemn a new right of way for this type of highway, and in such an original proceeding it goes without saying that a landowner whose land is cut in two will be entitled to compensation for his loss. The fact that the legislature did not authorize the Highway Commission to convert an existing easement into a controlled-access facility even when that could be accomplished demonstrates that some importance was attached to the acquisition of the fee simple.
In the second place, when the arguments on each side are fairly well balanced considerations of equity and justice are entitled to great weight. Here the equities undeniably lie with the landowners. It is nowhere denied that they have suffered an actual pecuniary loss at least equal to the jury’s award. As Ave have seen, they could not have asserted their present claim in 1952, for the division of their property was not then contemplated. If their cause of action is. denied they will have been deprived of any opportunity to assert a just claim. Yet all that has happened in the meantime has been the passage of federal laws creating an interstate system of limited-access highways. Public Law 627, June 29,1956, 70 Stat. at Large 374; 23 U. S. C. A. § 111. If the Woollards’ land had been taken after the adoption of the federal law instead of before its passage their damages would unquestionably have been paid. In the absence of a clear expression of the legislative intent we are unwilling to read into our controlled-access highway statute a requirement that these particular appellees must bear a unique burden, a burden that other landowners will escape simply because their property happened to be taken at a more favorable moment.
The Commission’s remaining points do not require extended discussion. We see no real objection to testimony by which an expert witness gave his “personal” opinion about land values; the opinion of any expert is of course personal to that witness. Nor do we think the Commission was prejudiced by the fact that Mr. Wool-lard mentioned in the course of his testimony that the county had discontinued its maintenance of a bridge.
There is merit, however, in the appellant’s contention that the fees of the appellees’ expert witnesses, amounting to $1,280.00, should not have been taxed as costs in the case. The allowance of costs is purely statutory, and in the absence of a statute the fees of expert witnesses cannot be charged against the losing party. Ark. Game & Fish Comm. v. Kizer, 222 Ark. 673, 262 S. W. 2d 265, 38 A. L. R. 2d 1372. This modification of the judgment amounts to a substantial recovery and thus entitles the appellant to recover its costs of appeal. Supreme Court Rule 24.
Modified and affirmed.
McFaddin and Johnson, JJ., concur. Holt and Robinson, JJ., dissent.