Arkansas Power & Light Co. v. Mayo , 244 Ark. 435 ( 1968 )

Carleton Harris, Chief Justice.

Appellees, Joe A. Mayo and wife, are the owners of a 240-acre farm in Phillips County, Arkansas, consisting of two tracts. Arkansas Power and Light Company, appellant herein, condemned a right-of-way, 1,572 feet in length and 125 feet in width, containing 4.51 acres, the right-of-way being off the northeast side of Tract No. 1, and the west side of Tract No. 2. In determining the amount of damages to be awarded appellee, the jury returned a verdict in the amount of $4,059.00. Appellant brings this appeal on the ground that the court committed error in its instructions as to damages.

The instructions complained of are the Defendants’ Instruction No. 1, and the Court’s Instruction No. 1, which reads as follows:

Defendants’ Instruction No. 1

“You are instructed that Arkansas Power & Light Company acquires by this Condemnation Proceeding the power to make such use of the 4.51 acre right-of-way across the property of the Defendant as its present and future needs require for the purposes for which the right-of-way is condemned, and Arkansas Power & Light Company is liable to the landowners as though the lands were taken in fee simple or absolute title.”

Court’s Instruction No. 1

“The jury is instructed that in determining the amount of just compensation to be paid the Defendants in this case, you are to determine from the evidence in this case the fair market value of the whole farm, considering it as a unit immediately before the taking and then determine the fair market value of the whole farm, considering it as a unit immediately after the taking and the difference between the fair market value before and after the taking is the amount of the just compensation you should award.”

Appellant objected to the giving of the last instruction, and offered its own instruction as follows:

“You are instructed that the compensation to which the defendants are entitled in this cause is the fair market value of the lands within the right-of-way determined as of the date of taking, together with the difference, if any, in the fair market value of the remainder of the lands immediately before and immediately after the taking.”

This instruction was refused by the court.

The company argues that the court clearly committed error in that the two instructions given, taken together, in effect directed the jury to compensate ap-pellees twice for the same land. We think there is merit in appellant’s argument, at least, to the extent that the jury may well have been misled by the two instructions.

In Baucum v. Arkansas Power and Light Company, 179 Ark. 154, 15 S. W. 2d 399, which also involved a right-of-way easement, this court held that compensation for the full market value of the land taken by condemnation is recoverable, and that damages to lands other than that taken is the difference, if any, between the market value of such land before construction and after construction. This rule was reiterated in Arkansas Louisiana Gas Company v. Burkley, 242 Ark. 662, 416 S. W. 2d 263.

In the case before us, Defendants’ Instruction No. 1 told the jury that the power and light company was liable to the landowners as though the lands were taken in fee simple or absolute title, i. e., the company was liable for the full value of the 4.51 aeres embraced in. the condemned strip. Obviously, the Court’s Instruction No. 1 also includes the value of the strip condemned, as well as compensation for damages to the remainder of the farm. We recognize that the first instruction may have been intended only to point out that the jury must consider the lands as being absolutely taken, instead of the company only acquiring an easement, but we are of the view that the two instructions,' taken together, could have been quite confusing. Certainly, it is doubtful that members of a jury, untrained in the law, would fully understand that the method of fixing damages was covered entirely in the Court’s Instruction No. 1, and that Defendants’ Instruction No. 1 was not meant to be used for that purpose (if indeed such is the case). Actually, the proffered instruction by appellant more clearly expresses the law than the Court’s Instruction No. 1, albeit- that instruction, standing alone, was correct in stating the measure of damages.

As pointed out in Dr. Pepper Company v. DeFreece, 234 Ark. 450, 352 S. W. 2d 579, we cannot say, with certainty, that the jurors were confused under the instructions and because of that fact gave judgment for a larger sum than would otherwise have been granted (the appellant thus being prejudiced), but we are less sure that they were not.

The judgment is reversed, and the cause remanded for proceedings not inconsistent with this opinion.

Foglemah, JoNes and Byrd, JJ., dissent.