Arkansas State Highway Commission v. Lewis

Cite as 2026 Ark. App. 517 ARKANSAS COURT OF APPEALS DIVISIONS I & IV No. CV-25-110 ARKANSAS STATE HIGHWAY Opinion Delivered October 28, 2026 COMMISSION APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT V. [NO. 23CV-15-754] HONORABLE SUSAN K. WEAVER, WILLIAM LEWIS AND CODY LEWIS, JUDGE CO-TRUSTEES OF THE WILLIAM MAJOR LEWIS TRUST U/T/D 12/21/2000 APPELLEES AFFIRMED MIKE MURPHY, Judge This is an eminent-domain appeal from a $3 million jury verdict entered in the Faulkner County Circuit Court in favor of the property owners, appellees William Major Lewis and Cody Lewis, as co-trustees of the William Major Lewis Trust (hereinafter “the Lewises”) against the appellant Arkansas State Highway Commission. The case concerned a condemnation and taking of portions of land owned by the trust. On appeal, the Highway Commission argues that (1) the court erred when it allowed testimony regarding roads and roundabouts the Lewises claimed they had to build due to the taking; (2) substantial evidence does not support the verdict; and (3) the amount and manner in which attorney’s fees were awarded was improper. We affirm.  I. Facts and Procedural History On August 7, 2015, the Highway Commission condemned portions of two tracts owned by the Lewises, taking a right-of-way and controlling access across both. The taking eliminated the tracts’ direct, unrestricted frontage access to Dave Ward Drive, which the Lewises and their tenant had used to reach the property before the taking. After the taking, the Lewises were limited to an unpaved, unimproved road on the east side and an access point on the old Amity Road on the west side of tract 1. The Highway Commission deposited $417,825 into the registry of the court as its estimate of just compensation. The case proceeded through several years of appraisal work and discovery before its first pretrial hearing. On April 9, 2018, the circuit court heard the parties’ cross-motions in limine and, as relevant here, granted the Lewises’ motion to admit evidence of the cost of constructing replacement roads and roundabouts to restore access to Dave Ward Drive. The court simultaneously denied the Highway Commission’s motion to exclude that evidence. It admitted proof that the Lewises spent roughly $4–$4.5 million constructing a relocated Amity Road and an east-west connector road, which the City of Conway required before it would authorize any road restoring access to the Dave Ward Drive-fronting remainder. The court found that the Lewises could not use the cost-to-cure or betterment evidence directly as the measure of damages but could otherwise present evidence of the roads and their cost at trial. 2  The Highway Commission renewed its motion in limine on May 2, 2024, again seeking to exclude the Lewises’ cost-to-cure evidence. The circuit court again denied the motion, and the case proceeded to a jury trial beginning June 4. At trial, the Lewises’ appraiser, Diana Thompson, opined that the total amount of just compensation for both tracts was $3.8869 million using a comparable-sales approach with adjustments for size, location, and time and, for tract 1, an income-capitalization approach reflecting the lost rental income when the Lewises’ tenant relocated. Trustee Cody Lewis gave lay-opinion testimony that the market value of tract 1 was $16 a square foot (about $14 million) before the taking and $10 a square foot after the taking (about $8.564 million). Lewis testified that the market value of tract 2 was $14 a square foot (about $4.592 million) before the taking and $8 a square foot (about $2.411 million) after the taking. He explained that the City of Conway required the Lewises to build a relocated Amity Road and connecting drive at a cost of several million dollars before they could make commercial use of the property abutting Dave Ward Drive. They additionally had to use seven acres from their remaining land for the construction. Audie Alumbaugh, the Lewises’ accountant, echoed this testimony. At the close of the Lewises’ case, the circuit court denied the Highway Commission’s motion for a directed verdict, explaining that the Highway Commission’s objections went “to the credibility and weight for the jury to give” the evidence. The Highway Commission’s appraiser, Cheslyn Bartlett, testified that access remained to both tracts after the taking and opined that total just compensation was $417,825. To arrive at this figure, she used a comparable-sales approach only with no 3 severance-damage component. The Highway Commission renewed its motion for a directed verdict at the close of all the evidence; the court again denied it, and the case went to the jury with instructions that it could consider restoration or cost-to-cure evidence “only as an aid in arriving at the amount of just compensation” and that such costs “are not the measure of damages.” The jury returned a verdict of $3 million. On June 20, 2024, postverdict but before entry of the final judgment, the Lewises moved for prejudgment interest at “a proper rate,” attorney’s fees, costs, and appraiser’s fees, relying on Arkansas Code Annotated section 27-67-317(b) (Repl. 2022), and Wilson v. City of Fayetteville, 310 Ark. 154, 838 S.W.2d 366 (1992). The motion included the Lewises’ contingency-fee agreement, counsel’s affidavit and itemized billing records, a second attorney’s affidavit opining that the rate, time, and fees claimed were reasonable, and a CPA’s affidavit opining that a reasonable rate of return on a moderately invested portfolio ran from 7.7 percent to 8.2 percent, compounded annually. The Highway Commission responded on July 30, making several arguments; it did not, however, contest the reasonableness of the rate, hours billed, or requested amount. On August 12, the circuit court entered judgment on the jury’s verdict, awarding the Lewises the roughly $2.582 million balance remaining after the Highway Commission’s deposit plus interest at 8 percent, compounded annually, accruing from August 7, 2015, the date of the taking. The court separately awarded $123,195.68 in attorney’s fees, costs, and 4 appraiser’s fees plus interest at 8 percent, compounded annually, accruing from the date of the judgment. From this, the Highway Commission timely appealed.1 II. Evidence of Road Building The Highway Commission first argues that the court abused its discretion by admitting evidence that the Lewises built roads and roundabouts after the taking. We review a circuit court’s decision to admit or exclude evidence for abuse of discretion. Dovers v. Stephenson Oil Co., 81 Ark. App. 92, 98 S.W.3d 462 (2003). Cost-to-cure evidence has long been admissible in Arkansas condemnation cases as an aid to determining the diminution in market value a taking caused and as evidence of a landowner’s efforts to mitigate that diminution. Ark. State Highway Comm’n v. Ptak, 236 Ark. 105, 364 S.W.2d 794 (1963); Ark. State Highway Comm’n v. Dean, 244 Ark. 405, 425 S.W.2d 306 (1968). The controlling authority is Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S.W.2d 796 (1959). In Speck, a controlled-access taking left a farm without direct access to a severed tract, and our supreme court approved evidence of the cost to build a replacement road and bridge restoring that access as “a proper element to consider” in valuing the remainder. Id. at 718, 324 S.W.2d at 799. We measure just compensation as of the date of taking, comparing the value of the property immediately before the taking with its value immediately after, as though the condemnor’s project were then complete. Ark. State Highway Comm’n v. Littlefield, 247 Ark. 1 The Lewises filed a notice of cross-appeal but explicitly abandoned it in their response brief. 5 686, 447 S.W.2d 146 (1969). That rule fixes the valuation date; it does not require every item of cost-to-cure evidence to be contemporaneous with the taking. Speck contemplated this. In Speck, the supreme court explained that the jury determines “the type of improvement that will more nearly restore the property to its original status,” with such “prospective expenditures” serving “only [as] an aid in determining the difference in the before and after value of the property.” Speck, 230 Ark. at 720, 324 S.W.2d at 800. The timing of construction accordingly bears on the weight of cost-to-cure evidence and is not a categorical bar to its admission. That is the finding the court made on this record twice. The Highway Department’s taking extinguished the Lewises’ direct frontage access to Dave Ward Drive, the property’s “most prime” access. The roads the Lewises built were the means of restoring functional access to the part of the property fronting the highway. Cody Lewis testified that if the Lewises were “going to use this property at all,” they had no choice but to build the road the City designed. Whether that testimony—and the City’s demand—in fact flowed from the taking or instead reflected development costs the Lewises would have borne regardless of it was squarely contested. At the 2024 hearing on the Highway Commission’s renewed motion in limine, its counsel read into the record Thompson’s 2018 deposition testimony. When asked directly whether the Lewises would still have had to put in a road had the Commission’s project never happened, she answered yes. The circuit court heard that argument and denied the motion anyway for the reasons it had already given in 2018. At trial, the Commission 6 put the same proposition to Thompson again, and her answer was more qualified than the deposition excerpt, standing alone, suggests. She agreed that, because the property had no internal roads and a preexisting ditch already blocked travel between its northern and southern portions, part of the Lewises’ development plans “would have needed” some road work regardless of the taking, but she maintained throughout that the taking of the Dave Ward Drive frontage was what “took away [the Lewises’] ability to commercially develop it the way [they] wanted to” since, absent the taking, “[t]hey would have had frontage off of Dave Ward Drive.” The Commission pressed its contrary theory directly to the jury in closing argument: “[T]hey would have needed a road anyway. . . . How else are you going to get up there?” The jury heard both sides of that dispute and was entitled to resolve it either way. The fact that the $3,000,000 verdict came in below Thompson’s own $3,886,900 opinion of total just compensation is consistent with a jury that weighed the Commission’s causation argument and discounted for it, not one that disregarded it. Resolving that kind of causal dispute is the jury’s task, not ours. See Ark. State Highway Comm’n v. Fowler, 240 Ark. 595, 401 S.W.2d 1 (1966) (affirming a condemnation verdict against a substantial-evidence challenge where the landowners’ and the Commission’s valuation testimony conflicted). The dissent would go further and hold that any relevance of the road-building evidence was conditioned on a showing, under Ark. R. Evid. 104(b), that a willing buyer could have determined from regulations or ordinances in force on the date of taking that this specific cost would follow. That argument is not before us. Neither of the Highway Commission’s two motions in limine asked the circuit court to apply a Rule 104(b) 7 conditional-relevance screen, and neither of its briefs on appeal mentions Rule 104(b). We do not reverse a circuit court’s decision that fails to apply a framework no party asked it to apply, and we do not construct an appellant’s argument for it where the appellant has not made it. The Highway Commission’s principal authority, Arkansas State Highway Commission v. Barker, 326 Ark. 403, 931 S.W.2d 138 (1996), does not require a different result. Barker reversed a verdict built on a betterment with no tie to restoring any access or utility the taking itself had impaired. Our supreme court held that a landowner is entitled to just compensation, not to be “unjustly enriched at the expense of the public purse.” Id. at 407, 931 S.W.2d at 141. In Barker, Barker’s circular driveway, like the Lewises’ roads, was built in part to restore access the taking had impaired. What our supreme court condemned was not that connection but the appraiser’s method. The appraiser deducted the driveway’s $10,300 cost and maintenance directly from his comparable-sales after-taking value so that the cost of the cure became, in effect, the measure of damages rather than an aid to the jury’s own determination of diminution. Here, by contrast, the circuit court instructed the jury that restoration costs “are not the measure of damages to which the landowners are entitled, but may be an aid in determining the difference between the before and after value of the property,” and neither Thompson nor the Lewises asked the jury to award the roughly $8 million in construction costs and land value the City’s design required—or any other cost-to-cure figure—as damages 8 in its own right. Again, the $3,000,000 verdict that came in below Thompson’s own $3,886,900 opinion of total just compensation suggests the jury did what the instruction asked, not what Barker forbids. Finally, the record itself surfaces a genuine conflict over whether Enterprise Road, one of the Lewises’ two remaining points of access after the taking, was, as the Lewises’ appraiser testified, a private road unsuited to commercial use; or, as the Lewises’ own accountant testified on cross-examination, a road the family’s predecessors dedicated to the City in 1990. Both versions are in the record, and it was for the jury, not this court, to weigh them. But the conflict does not change our result because, regardless of either version, the undisputed evidence was that Enterprise existed to let a utility reach a power station with a roundabout the City “specially designed” for that single purpose—not to serve as commercially zoned highway frontage. A reasonable jury could find that whether or not the underlying right-of-way was privately held or publicly dedicated, Enterprise did not functionally replace the direct, by-right frontage access to Dave Ward Drive that the taking eliminated. We find no abuse of discretion in admitting the cost-to-cure evidence, and we affirm on this point. III. Substantial Evidence The Highway Commission next argues that the circuit erred in allowing evidence of severance damages because the Lewises still had reasonable access. It explains this error resulted in an excessive judgment not supported by substantial evidence. As explained above, 9 an actual taking of an access right can support compensation for the resulting impairment of the remainder even where some other access remains. Ark. State Highway Comm’n v. Billingsley, 247 Ark. 49, 444 S.W.2d 259 (1969). Whether the remaining access was, in fact, reasonably equivalent is a question of fact. Ark. State Highway Comm’n v. Rye, 255 Ark. 223, 499 S.W.2d 624 (1973). The record supports the jury’s resolution of that question, including the causation dispute addressed above. The Lewises’ appraiser, Diana Thompson, an experienced, credentialed appraiser, opined that total just compensation was $3.8869 million. To arrive at this figure, she used a comparable-sales approach for both tracts and, for tract 1, an income-capitalization approach reflecting lost rental income. Trustee Cody Lewis testified as a landowner familiar with property his family had held for decades that without the city- mandated roads, the property was much less valuable and had little commercial use after the taking. Neither witness’s testimony was struck, and a landowner’s opinion of his own property’s value is competent evidence without further qualification. Ark. State Highway Comm’n v. Person, 258 Ark. 379, 525 S.W.2d 77 (1975). Against that testimony, the Highway Department’s own appraiser valued the taking at $417,825. To arrive at that figure, he used comparable sales alone without a time adjustment and without any severance-damage analysis. The jury’s $3 million verdict sits within the range framed by the parties’ valuation witnesses. Facts in dispute and determinations of credibility are solely within the province of the fact-finder. City of Jacksonville v. Nixon, 2014 Ark. App. 485, at 6, 442 S.W.3d 906, 911. We are unable to say the damages on this record are excessive, and we affirm on this point. 10  IV. Attorney’s Fees The Highway Commission argues that Ark. R. Civ. P. 54(e)(2) required separate litigation because the Lewises moved for fees on June 20, 2024—before the August 12, 2024 judgment—and the Highway Commission’s response argued the motion was not yet ripe. The construction of a court rule is a question of law, which we review de novo. State ex rel. Rutledge v. Purdue Pharma L.P., 2021 Ark. 133, 624 S.W.3d 106. Rule 54(e)(2) sets an outer deadline for a fee motion, “no later than 14 days after entry of judgment,” to guard against tardy requests. Nothing in the rule forbids moving earlier, so long as the opposing party has fair notice and a meaningful opportunity to respond before the matter is resolved. We reached the same conclusion in Vaughn v. Bates, 2010 Ark. App. 98, 379 S.W.3d 1, holding that the rule’s core concern is satisfied once the opposing party has notice and an opportunity to be heard, regardless of whether the motion technically preceded the judgment. The Highway Commission attempts to distinguish Vaughn because, unlike the silent litigant there, it did object below. But the character of that objection matters. The Highway Commission’s response argued only that the motion was premature; it did not dispute the hours billed, the hourly rate, the reasonableness of the expenses, or the supporting affidavits, and it did not seek a hearing or additional time to respond to the merits. Having had a full opportunity to contest the substance of the request and declining to do so, the Highway Commission demonstrates no prejudice from the timing of the motion. 11  The Highway Commission also argues that the circuit court erroneously awarded attorney’s fees, costs, and expenses plus interest at 8 percent compounded annually. Under Arkansas Code Annotated section 27-67-317(b), attorney’s fees are authorized when the jury’s award exceeds the amount deposited into the court’s registry by more than 20 percent. That condition was met here because the Highway Commission deposited only $417,825 as its estimate of just compensation, and the jury’s award exceeds that amount by more than 20 percent.. The Highway Commission argues that the Lewises were not entitled to 8 percent compounded interest on this award because Ark. Code Ann. § 27-67-316(e)(1) (Repl. 2022) caps the rate at 6 percent per annum. But § 27-67-316(e)(1) expressly applies to interest included as part of the just-compensation award—interest on the value of the property itself— not to collateral awards of fees, costs, and expenses under § 27-67-317(b). And the Highway Commission correctly acknowledges that attorney’s fees, costs, and expenses are not a component of just compensation. See Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, at 11, 363 S.W.3d 321, 327–28 (declining to extend the just-compensation interest rationale of Wilson v. City of Fayetteville, 310 Ark. 154, 838 S.W.2d 366 (1992), to attorney’s fees). Section 27-67-316(e)(1) is therefore inapplicable. The Highway Commission has not identified an alternative rate that would displace the circuit court’s choice of 8 percent. It has thus failed to carry its burden of demonstrating that the circuit court’s interest rate was erroneous. Affirmed. 12  KLAPPENBACH, C.J., and ABRAMSON, VIRDEN, and HIXSON, JJ., agree. HARRISON, J., dissents. BRANDON J. HARRISON, Judge, dissenting. Even in Arkansas State Highway Commission v. Barker, 326 Ark. 403, 931 S.W.2d 138 (1996), the record did not establish the landowners would have built the same access “cure” if there had been no condemnation. This record does. The Lewises’ appraiser admitted at deposition they would have had to build a road along this route to develop this property whenever they did so. The “cure” evidence that was wrongly admitted in Barker was a forty-foot driveway that unjustly enriched the landowners by $10,000. Here, it is almost a mile of paved development roads and roundabouts through raw dirt. Some might call that a windfall. What contributed to it? Testimony the circuit court allowed (over two motions in limine) that an employee of the City of Conway told the Lewises after the condemnation that “to use this property at all” they would have to build and dedicate a network of roads through their holdings. A convenient demand, perfectly timed. The Lewises put the cost of the roads at $4 million, $4.5 million, or $8 million. But for the taxpayer-funded highway work, they’d have had to pay for it all themselves. The litigation toll is more than $2.5 million—plus prejudgment interest at 8 percent compounding since August 2015, about $3.5 million as I reckon it. * On 7 August 2015, the Arkansas State Highway Commission condemned, in two strips, 1.62 acres of “the last developable corner lot on an intersection in Conway” close to I-40, which fronted Dave Ward Drive (Highway 286) to the south. The Lewises owned the 13 twenty-nine adjoining acres and dozens more to the north. The land was “developable” because they hadn’t developed it yet. It was fenced but unimproved—the kind of place you’d put a fireworks stand. The Commission condemned the land to widen Dave Ward and turn two intersections into roundabouts. The new highway plan controlled access to Dave Ward near the intersections. Because of the nine-year trial delay, the record includes aerial photos before and after the highway construction that illustrate the change. In the images below, the condemned tracts (marked 1 and 2) are enclosed by blue lines at the bottom and sides and red lines on top; they are separated by the right-of-way to Enterprise Avenue running north. The red segments with triple hash marks indicate where the Commission condemned highway access to Dave Ward, the road at the bottom. That’s the “loss” of access we’re talking about. First before condemnation: 14 Now after: In the “before” image, Tract 1 is rented to a mobile-home dealership. You can see four dirt driveways to Tract 1 from Dave Ward or the curved frontage road to the left, and one from Dave Ward to Tract 2. The “after” image shows that the three driveways to Tract 1 are gone and the driveway to Tract 2 has moved. But there is a new paved outlet from the new roundabout into the Lewises’ property. And to replace the dirt driveways, the Commission built a paved driveway to Tract 2 from Enterprise and two more to Tract 1 west of this area. 15  If this was the access loss, what was the “cure”? The network of paved roads and roundabouts is shaded below in blue and green. I added the dotted rectangle to show where the aerial photos fit.1 The area the Lewises paved begins on Enterprise at the roundabout outlet the Commission built. Best I can tell, the parts of their property that are considered remainder Tracts 1 and 1 This important diagram—the only depiction of the roads charged to the Commission—appears in the record at RP 149 and 236. For some reason, both pages have been rotated upside down, RP number and all. 16 2 end to the north about where Enterprise starts to curve left.2 The bell-shaped symbols beneath Tract 1 are paved access points on the frontage road. 3 The Lewises retained access to Dave Ward on Tract 2. The orange highlight shows where. Some cure. The Lewises’ lawyer asked in closing, “Would a businessperson, in deciding what to pay for the property, consider the fact that the City of Conway is going to gig them for $8 million to use any of the property?” (Emphasis added.) Well, a few problems with that. The Lewises were seeking compensation from the Commission, not the City. The City made that demand months or years after the condemnation. Nothing linked it to the condemnation causally in any previously recognized way. The only people gigged were the taxpayers. The measure of damages for a partial taking is the difference between the market value of the whole tract immediately before the taking and the market value of the part that 2 I should not have to guess. For a case with veteran Commission lawyers on both sides—condemnation specialists all, in other words—the appellate record is no bueno. For that matter, neither was the trial record. The need to decipher where the Commission had condemned access on Dave Ward from hash marks on highway engineering schematics left the lawyers for both sides and many witnesses confused throughout these proceedings about how many access points remained—just a $4 to $8 million issue. 3 The relevant roads had multiple names before condemnation, and those names changed by the trial date: Old Names Current Names I-40 Frontage Road / Amity Road / South Crain Drive Amity Road Enterprise Avenue / Exchange Road New Amity Road / South Amity Road 17 remains afterward, less any enhancements peculiar to the lands. Barker, 326 Ark. at 407, 931 S.W.2d at 141. The aerial photos above were taken years apart; but the important question is how the property changed over two consecutive days in August 2015—August 6, the day before condemnation, and August 7, when we pretend the Commission’s planned construction was retroactively complete. Ark. State Highway Comm’n v. Littlefield, 247 Ark. 686, 690, 447 S.W.2d 146, 148 (1969) (“An appraiser, in viewing the lands after a partial taking, must consider the remainder as if the improvements were in place according to the plans and specifications.”). Losing sight of the time limits of that comparison—Condemnation Day versus Condemnation Eve, if you will—is how this case left the rails. On Condemnation Day, this was still a big dirt lot. The Lewises rooted their $8 million severance-damages claim in testimony from their appraiser, Diana Thompson. The supporting rationale seems to require freedom to take the best of both conflicting sides of the issues. At least Thompson did that in her deposition, which reads like the transcript of a shell game.4 For example, describing access before the taking, Thompson treated the dirt lot that became Tract 1 as offering, like overflow parking at the fair, limitless options to drive from Dave Ward to the rest of the Lewises’s holdings. The Lewises “had driveways down here on Dave Ward that [they] could drive across to get to it.” They could do that because they “had The deposition transcript was attached to the Commission’s renewed motion in limine to 4 exclude evidence of roadbuilding costs. 18 not developed it yet.” Okay, agreed. She said they could also use Enterprise, which was then a gravel road, to access both tracts and their northern holdings. See this postcondemnation pre-road photo: In fact, Cody Lewis said at deposition that before the condemnation, Enterprise was the only way to access their northern holdings from Dave Ward. In Thompson’s Condemnation Eve analysis of what access the Lewises had lost to condemnation, the right to drive from dirt driveways across a dirt lot was access good enough to lose. 19  Not so on the Condemnation Day side. After condemnation, crossing the same dirt lot from the remaining driveways—now paved—would no longer do. “That’s not the maximum use of his land[,]” she said. On Condemnation Day, the Lewises could still use Enterprise the same way they had on Condemnation Eve. But that would no longer do either. They could use it, but “not commercially,” she said. They “could privately, because that was a private road.” Of course, at the time there was still no commerce here to do. But the Lewises were ready to change that. Their bookkeeper, Audie Alumbaugh, testified that when they approached the City later about getting a road built, a city employee said the Lewises would have to build it themselves because “the City doesn’t build roads, they maintain roads.” The Lewises wanted the blue road in the diagram above. But the City told them they “couldn’t build a road to nowhere. So it was all or none at that point.” That testimony is hard to swallow. Why? Because the road plan the City itself drew up for the Lewises afterward includes two roads to nowhere—and a roundabout between: 20 I digress. Why did the City require this? “They just did,” according to Bill Lewis. “You’d have to ask them,” said Alumbaugh. Sounds like a taking all right—by the City. Sometimes it must pay for its own roads, it seems. At Thompson’s deposition, she confused two road names. She explained her confusion: “I’m doing another appraisal, I’m sorry, for the City of Conway on Enterprise.” At trial, she testified the City considered Enterprise a private road “not to be used for commercial development.” How did she know? Because she had “worked on 18 of the roundabouts for the City of Conway.” But Alumbaugh testified Enterprise was a dedicated road, not a private road. A deed at page 386 of the record confirms that. The Lewises’ predecessors deeded it to the City in 1990—a 60-by-2100-foot strip—“as and for use as a public thoroughfare.” Now pull that thread and pretend they had not done so. This condemnation left two remainder tracts instead of one because the right-of-way to Enterprise separated the affected remainder of the Lewises’ property. If their predecessors had not granted Enterprise to the City, a condemnation for the same highway plan would have left one remainder tract. By any measure, the paved outlet from the Dave Ward roundabout into one remainder tract would be direct access to Dave Ward. Functionally it is anyway. If it was an outlet into raw dirt, so what? So were the driveways the Commission condemned. The paved outlet would give the Lewises the same kind of access on Condemnation Day they’d had on Condemnation Eve. Indeed, better access at that spot. Nor would that be their only 21 access to Dave Ward on one remainder tract: the Lewises retained access, remember, at the orange highlight below Tract 2. The tract would still be undeveloped, of course. And driving across raw dirt would still not be “the maximum use” of the land in Thompson’s formulation. But could there be any pretense that “just compensation” required the Commission to subsidize $8 million of development roads through it? I submit not. Where would that have left the Lewises? Whatever road they built, Thompson testified, “ha[d] to be like all of the other roads in that area.” We know the City would not be paying for it. And there was no evidence the City’s road specifications would have been more lenient, or the roadbuilding cheaper, if the Lewises could have built a road somewhere else. Thompson seemed to concede in her deposition that, to the contrary, the Lewises would have had to build a road along this route whenever they developed the property. Now put Enterprise back. On Condemnation Day, did the Lewises have worse access to these two tracts than to the hypothetical one? No. The paved outlet met a gravel road running through their property, not raw dirt. Did they show it cost more to improve Enterprise than to build a road north from elsewhere on Dave Ward? Again no. In fact, it almost certainly cost less. How do we know? The cost of construction was only half the $8 million severance damages the Lewises asked the jury to consider. Four million was the value they gave seven acres of land they had to donate to the City for New Amity Road. Enterprise, which already bisected their land, 22 sat on 2.9 acres.5 I concede the Lewises might have preferred that the City build and pay for a road there. But they could not get the land back either way. Though it may be true that before the taking the Lewises could have built a road north on a different route, who would have done so? Every square foot of development road they could fit within the Enterprise right-of-way saved a square foot of C-3 real estate they could sell instead. What’s left of their severance-damages theory is a logical fallacy so old it was named in Latin: post hoc ergo propter hoc, or “after this, therefore because of this.” Because the condemnation limited the options to connect to Dave Ward, the whole cost to build a road afterward was the Commission’s fault. Their counsel made this explicit after Thompson answered yes to the question, “Did [the Lewises] only have to drive a few extra feet to get to access off of either Enterprise or Amity?” LEWISES’ COUNSEL: But in order to go that extra [few] feet and just build the road through there, they had [to] spend $8 million; is that fair to say? THOMPSON: Yes. The majority is right that condemning access along one side of highway frontage is a compensable taking even if no land is left orphaned on the other side. Ark. State Highway Comm’n v. Rye, 255 Ark. 223, 499 S.W.2d 624 (1973) (quarter mile of frontage reduced to two fifty-foot access points). But that does not make the cost of whatever the landowner does afterward the measure of compensation due. The requirement to pay just condemnation 5 I assume the seven claimed acres do not include the portion of New Amity Road within the 1990 grant; if the record includes a legal description of the New Amity Road donation, I have missed it. 23 “does not stand for the proposition that a landowner is entitled to be unjustly enriched at the expense of the public purse.” Barker, 326 Ark. at 407, 931 S.W.2d at 141. The focus of the change-in-value analysis, again, is Condemnation Eve versus Condemnation Day. Past expenditures on improvements that no longer exist on Condemnation Day are irrelevant. Ark. State Highway Comm’n v. Byrd, 237 Ark. 905, 908, 377 S.W.2d 165, 167 (1964) (property’s before-taking value “was neither greater nor less because of the fact that a building had been located thereon for about four years”). So are expenditures made after condemnation that are not needed to restore some function or utility that existed then. Barker, supra. In Barker, there was not much analysis of why evidence of the improvements should not have been admitted. One answer is timing. The property should have been valued as of the date of condemnation, but the landowners’ appraiser valued it as of fifteen months later. 326 Ark. at 407, 931 S.W.2d at 141. In the meantime, the landowner had poured a $10,000 concrete slab that was incorporated in the appraisal. The Lewises’ road project came even longer after this condemnation; their first documented expense in the record is dated January 2017, about seventeen months later. In Arkansas State Highway Commission v. Speck, the supreme court approved the admission of testimony about the cost to restore functional access and utilities (like irrigation) to the severed part of what had been one working farm: [W]e think it proper for the jury, after hearing the evidence, to determine the type of improvement that will more nearly restore the property to its original status. Let it be borne in mind that these prospective expenditures are not the 24  measure of damages, but are only an aid in determining the difference in the before and after value of the property. 230 Ark. 712, 720, 324 S.W.2d 796, 800 (1959) (emphasis added). I hope the pivotal point has been made clearly enough. The Lewises did not build these roads to restore the property’s original status; the condemnation hadn’t changed it. They built them to improve dozens of acres of dirt they had waited longer to develop commercially than any similar landowner in the area. Causation and common sense are part of this analysis. Ark. State Highway Comm’n v. McNeill, 238 Ark. 244, 381 S.W.2d 425 (1964). That is why the attempt to bill the Commission with the cost of this road should be rejected. The Commission argued that the Lewises’ development plans, not the taking of access rights, caused them to improve the road between these tracts. And it was right. Roadbuilding expenses the Lewises would have borne before condemnation are not the Commission’s responsibility just because the roads were built afterward. 6 Particularly when the roads extend far past the boundaries of the affected tracts, and the demand to build them all was made after condemnation by a different governmental body. That demand might be a separate taking, after all. Calabria v. City of Fayetteville, 277 Ark. 489, 644 S.W.2d 249 (1982). On this record, the Lewises could either fight the City or roll over. What they could not do is roll over for the City and stick the Commission with the bill. 6 Had the Lewises stopped at introducing evidence of the cost of the blue road on the diagram—$749,081, according to Thompson’s appraisal report—I would affirm. 25  A regulation or ordinance imposed by one government body can affect the damage a landowner suffers in a condemnation by a different body. In Barnes v. Arkansas State Highway Commission, 10 Ark. App. 375, 664 S.W.2d 884 (1984), we held that evidence that city ordinances required a developer of