Baker v. Mississippi State Highway Commission

• Decision Date: 25 October 1948
• Docket Number: 36835.
• Citation: 37 So.2d 169,204 Miss. 166
• Court: Mississippi Supreme Court
• Parties: BAKER v. MISSISSIPPI STATE HIGHWAY COMMISSION.

37 So.2d 169

204 Miss. 166

BAKER v. MISSISSIPPI STATE HIGHWAY COMMISSION.

No. 36835.

Supreme Court of Mississippi

October 25, 1948

John F. Frierson and Sams & Jolly, all of Columbus, for appellant.

Greek L. Rice, Atty. Gen., and John M. Kuykendall Jr., Asst. Atty. Gen., for appellee.

ROBERDS, Justice.

Baker at the times hereinafter mentioned, was the lessee of a lot and its improvements, situated about seven hundred feet west of the bridge across Tombigee River at Columbus, Mississippi. The lease was for ten years, expiring October 1, 1955. The lot abutted 230 feet on the west side of U. S. Highway 82 which highway, at this point, was also U. S. Highway 45 and Mississippi State Highway No. 12. Upon the lot was located a gasoline service station, an automobile repair shop, a rack and grease pit and a garage for servicing automobiles, and a warehouse. The Mississippi State Highway Commission (which we shall call Commission) in the course of altering, repairing and improving said highway, during the months of September, 1946, to March, 1947, raised the surface of said highway in front of said lot some nineteen to twenty-six inches, rendering it difficult, and, to some extent, hazardous, for motor vehicles to drive from the highway upon the lot to be serviced and then re-enter the highway. Baker brought this action in the circuit court to recover of the Commission damages resulting to his business and property from the raising of this road. It is pertinent to here note that the claimed damages are purely consequential. It is not a condemnation proceeding. The Commission did not seek to acquire title to any property. In fact, the new raised pavement was some two or three feet farther from the lot than was the old pavement.

Baker claimed he was damaged in the total sum of $11,107.58. This total damage, according to his declaration and bill of particulars, consisted of the cost necessary to raise his lot, with all the improvements thereon, to a level with the new road, plus $1,600 loss of profits in the operation of his business, and $1,225 loss of rentals, suffered by him during the five months the work was in progress. On motion of the Commission the trial court struck from the declaration as items of damage, the claims for loss of profits and rentals.

After the suit was filed and shortly before the trial Baker sold his business and assigned his lease and he made a further claim of $3,000, which amount, he contended, he lost in the sale. In other words, he says he could have gotten $3,000 more if, at the time of the sale, the physical situation had been as it was before the road was raised rather than as it was after he had undertaken to remedy the condition.

The proof offered by Baker dealt only with the cost of detailed items necessary, as he claims, to place his property in the same accessible condition to the highway as existed prior to the raising of the road by the Commission. For instance, he raised his lot, the gasoline pumps, his tire shop and warehouse, and did other work necessary, according to his evidence, to remedy the situation so that he could successfully operate his business. There is really no dispute as to that. He showed, without contradiction, he had spent for that purpose some $4,500. He also offered evidence to show that an additional expenditure of over $3,000 would be needed to completely remedy the situation. The jury returned a verdict for Baker in the sum of $1,500 Baker appeals. He contends on this appeal that the proof is undisputed he has paid out over $4,000 in an effort to remedy the conditions and we should affirm the case on liability and enter a judgment here for at least the amount he has actually expended. The Commission admits there is liability but says there is no proof of damage in the record on which a verdict could have been rendered or a judgment entered. In other words, the Commission contends that the rule for measuring the damage in this case is the difference between the market value of Baker's property before, and such value after, the surface of the road was raised. The record discloses no proof whatever on such comparative values. Baker says proof of the cost of items necessary to remedy the situation is a proper basis for a verdict and judgment without proof of such before and after values. Therefore, the ultimate and deciding question is, What is the measure of damage in this case?

It is settled that in eminent domain proceedings the measure of damage to the property not actually taken is the difference between the fair market value of such property before, as compared to such value after, the taking. State Highway Commission v. Day, 181 Miss. 708, 180 So. 794; Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Commission v. Treas, et al., 197 Miss. 670, 20 So.2d 475. It is pointed out that there may be exceptional conditions where this rule would not be a proper test, as, for instance, where plaintiff sued for damage to his business resulting from enlargement of the Mississippi Levee, which occasioned the removal of fifty families from the neighborhood of his business, (Kwong, et al. v. Board of Mississippi Levee Commissioners, 164 Miss. 250, 144 So. 693), or where the remaining lot was worth more without the damaged or destroyed house thereon. Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250. Other unusual conditions, where the before and after values test would not be applicable, might be cited. In these exceptional cases all that can be done is to apply thereto a rule supported by reason, logic and common sense, designed to result, as far as may be humanly possible, in the ascertainment of the true, accurate damage the property owner has suffered. However, it is pointed out in the foregoing eminent domain cases, and others we might cite, that evidence of the cost of replacements and putting the remaining property in its former usable condition, entirely or as nearly so as possible, is competent, but this is so, not as constituting a basis for a verdict or judgment separate and independent of the comparative values, but only as bearing upon and tending to show the accuracy, or inaccuracy, of such comparative values as estimated by other evidence responsive directly to the before and after rule.

The expressions used by this Court in defining the rule for measuring damages in non-eminent domain cases, where there is no condemnor, but where the property owner is plaintiff and the damages are purely consequential, have not always been clear and without doubt and confusion. Some have clearly stated it to be the market value before and after the damage. Some have used the expression the owner should 'be made 'whole'; others, that he is entitled to be 'compensated for damage done'; in one that he is entitled to the 'value of the property taken'; another 'the market value diminished'. We here list in chronological order, the cases decided since adoption of Section 17 of the Mississippi Constitution of 1890, requiring payment for private propertyh 'damaged', as distinguished from such property 'taken', for public use, which contain expressions descriptive of the rule by which to measure consequential damages: City of Vicksburg v. Herman, 72 8miss. 211 16 So. 434; City of Meridian v. Higgins, 81 Miss. 376, 33 So. 1; Warren County v. Rand, 88 Miss. 395, 40 So. 481; 8king v. Vicksburg & Light Co., 88 Miss. 456, 457, 42 So. 204, 6 L.R.A., N.S., 1036, 117 Am.St.Rep. 749; City of Jackson v. Williams et al. 92 Miss. 301, 46 So. 551; Slaughter v. Meridian Light & R. Co., 95 Miss. 251, 48 So. 6, 1040, 25 L.R.A., N.S., 1265; Murphy v. City of Meridian, 103 Miss. 110, 60 So. 48; Merrin v. De Soto County, 110 Miss. 254, 70 So. 348; Graham v. Covington County, 110 Miss. 645, 70 So. 825; Schlicht v. Clark, Drainage Commissioners, 114 Miss. 354, 75 So. 130; Funderburk v. Mayor and Board of Aldermen of City of Columbus, 117 Miss. 173, 78 So. 1; Tishomingo County...