LITTLE ROCK -- The owners of a wildlife reserve will get a new trial to determine how much they should have earned when a utility company took part of their land using eminent domain.
The new trial comes after the Court of Appeals on March 11 reversed and remanded the case back to the Benton County Circuit Court. The higher court heard arguments from attorneys representing Safari Real Estate LLC and those representing Southwest Arkansas Utilities Corp. two weeks ago, but did not make a ruling at the time.
The limited liability company's attorney, Sandy McMath, had contended that the safari's owners weren't allowed their due process rights during the eminent domain process. McMath also said the Benton County trial court had erred in prohibiting certain testimony, such as how the construction of the line may affect the animals there or the business.
Appeals court judges said McMath's first point had no merit, but returned the case back to the trial court because of McMath's second argument. The utility company can ask for a rehearing on the matter.
"It's a victory," McMath said last Wednesday. "These are modest landowners."
The case stems from a 2012 matter, when the corporation -- a subsidiary of Southwestern Electric Power Co. -- filed to take certain properties through eminent domain, including a sliver of Safari Real Estate's 400-acre wilderness reserve. The corporation planned to build a 345-kilovolt transmission line from Flint Creek to Shipe Road Station in Benton County. The line would eventually go to the proposed Kings River Station in Carroll County, but that project was pulled.
Freda Wilmoth owns the limited liability company; and her son Leon manages the Wild Wilderness Drive-through Safari, which is separated into four quadrants, outside of Gentry. The safari is home to more than 85 animal species.
The utility company originally offered the safari owners $36,600 to take about 9 acres of the fourth quadrant, which housed many of the reserve's exotic species. The utility company wanted to build the first 17-mile stretch of the transmission line to Shipe Road -- what McMath now calls "the Godzilla line to nowhere."
A jury later awarded the safari owners $87,539 for the 9 acres.
At the time, the trial court judge did not allow any testimony that couldn't be tied to the fair market value of the land, the utility company's attorney Bill Greenhaw has said. The fair market value is the difference in cost of the land before and after the taking of the land.
McMath pointed to the testimony of Thomas Rife, a professional real estate appraiser, who had said in a proffered session that the land after the seizure would essentially be worthless. Others would have testified on the constant disruption the animals at the safari have faced, McMath said.
In Wednesday's opinion, Appeals Court Judge Waymond Brown said the wilderness reserve wanted testimony on the elements of severance damages to the remaining tract of land in that quadrant and whether it could still be used as a wildlife park.
"The circuit court excluded the testimony, ruling that the only proper testimony was that concerning the before-and-after value of the property," Brown wrote. "In doing so, the court inadvertently took an unduly narrow view of what proper damages are in a condemnation case."
He added that the state Supreme Court has ruled that testimony about the danger of a transmission line and the frightening of animals on a property is a "proper element of damages in condemnation cases."
"The rationale for such a rule is that if the existence of transmission lines exposes livestock to dangers or frightens the livestock, it has the effect of depreciating the value of the remaining lands not taken because the land can no longer be used as before and must be considered."
General News on 03/18/2015