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Wilmoth v. Southwest Ark. Utils. Corp.

Court of Appeals of Arkansas, Division III

March 11, 2015

LEON WILMOTH, MANAGER, SAFARI REAL ESTATE, LLC, APPELLANT
v.
SOUTHWEST ARKANSAS UTILITIES CORPORATION, APPELLEE

Page 695

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CV-2012-1456-2. HONORABLE BRAD KARREN, JUDGE.

Sandy S. McMath, for appellants.

Greenhaw & Greenhaw, by: William Greenhaw, for appellee.

WAYMOND M. BROWN, Judge. GLADWIN, C.J., and KINARD, J., agree.

OPINION

Page 696

WAYMOND M. BROWN, Judge

This appeal is from a judgment awarding compensation for the condemnation of a utility easement. On appeal, the landowner contends the circuit court erred by (1) entering an order of possession, ex parte, without any notice to it and thereby denying it the opportunity to respond or request a hearing; (2) excluding the testimony of certain witnesses who could not directly relate their testimony to the fair market value of the property. We find merit in the landowner's second point. Accordingly, we reverse and remand for a new trial.[1]

The condemned property is part of a 460-acre tract where a wildlife sanctuary for exotic animals and a visitor park are operated. On August 14, 2012, appellee Southwest Arkansas Utilities Corporation (SWEPCO) filed a complaint against appellant Safari Real Estate, LLC, and its manager, Leon Wilmoth, to obtain a utility easement across Safari's property for

Page 697

purposes of building a transmission line. SWEPCO deposited $36,000 into the court's registry as just compensation. An order of possession was entered by the Benton County Circuit Court on August 21, 2012. Safari answered and later withdrew the funds from the court's registry.

In advance of trial, SWEPCO filed a motion in limine seeking to prevent Safari from presenting evidence on topics other than the fair market value of the property. SWEPCO also sought to preclude litigation over the route of the transmission line as decided by the Public Service Commission (PSC). The circuit court held a hearing on the motions in limine just prior to the start of the trial. The court excluded certain of Safari's witnesses, ruling that the only proper evidence was that related to the fair market value of the property taken.

At trial, Safari's appraiser, Thomas Rife, testified that Safari owned approximately 462 acres, divided into four quadrants, to keep the various animals separated. In his calculations, he valued the raw land at $2,000 per acre, with another $1,500 per acre for improvements such as roads, fencing, ponds, and maintaining the grounds. He did not consider any barns or other buildings in his calculations. He said that SWEPCO was taking 9.17 acres for its transmission line through the middle of Quadrant Four. He opined that the remaining 104.83 acres in Quadrant Four could no longer be used as a wildlife park because of U.S. Department of Agriculture regulations concerning wild and exotic animals. He calculated the damages from the taking at $399,000. This included $32,000 for the 9.17 acres in the easement and $367,000 for the damages to Quadrant Four.

Tom Reed, SWEPCO's appraiser, testified that Safari owned approximately 350 acres while the entire Wilmoth family holdings totaled over 600 acres. He valued the property at $2,500 per acre before, and $2,395 after, the taking, for a total of $37,000 in damage to the property's market value. According to Reed, a study of a semi-rural area near Fayetteville indicated that the maximum extent of any harm to remaining property was no farther than 225 feet on either side of a power-line easement. He used this figure in calculating the value of Safari's remaining property after the taking. He ...


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