Board of Levee Com'rs for Yazoo and Mississippi Delta v. Nelms

• Decision Date: 20 April 1903
• Citation: 34 So. 149,82 Miss. 416
• Court: Mississippi Supreme Court
• Parties: BOARD OF LEVEE COMMISSIONERS FOR YAZOO AND MISSISSIPPI DELTA v. PRESLEY NELMS ET ALS

34 So. 149

82 Miss. 416

BOARD OF LEVEE COMMISSIONERS FOR YAZOO AND MISSISSIPPI DELTA v. PRESLEY NELMS ET ALS

Supreme Court of Mississippi

April 20, 1903

FROM the circuit court of DeSoto county. HON. PERRIN H. LOWREY Judge.

The Board of Levee Commissioners for the Yazoo and Mississippi Delta, appellant, began proceedings, under laws 1897, chapter 19, pp. 22-29, against Nelms and others, appellees, to subject certain lands to levee purposes. The appraisers awarded appellees damages which were unsatisfactory to them and they appealed therefrom to the circuit court, where upon trial a judgment was rendered in appellee's favor and the board of commissioners appealed to the supreme court. An appraisement was made of the land sought to be condemned allowing the appellees $ 55.50 per acre for part of the land that was on the outside of the levee and which would be protected by the levee, and $ 35.50 per acre for the part on the inside of the levee, that is, between the levee and the river. The appraisers also allowed the lessee of the land $ 4.50 per acre on both sides the levee. From this award the owners of the land appealed to the circuit court, but the lessee did not appeal. On the trial in the circuit court, the land owners were permitted, over the objection of the board to prove the value of the land by testimony showing what it would rent for annually per acre, and what other land of like character in the same neighborhood would rent for per acre and what said land would produce per acre in cotton, corn etc., and, on that basis, what the witness' opinion was as to the value of the land; and this without first showing that the witness had any expert training. Appellant offered to introduce the records of deeds showing sales of like land in the same community, the dates of the sales, the parties thereto, and the prices as recited in the deeds paid for same. The land owners objected to this, and the objection was sustained. The court instructed the jury, for the land owners, that they must find a verdict for the cash value of their interest in the land, and itemize their verdict; that the parties who testified as witnesses in the case, but who were the appraisers in the case, were not entitled to any greater consideration, or their testimony entitled to any greater weight, than any other equally creditable witnesses; that by condemning the land the levee board acquired an absolute title to the land; and that plaintiffs could not prevent such taking, and can only insist upon being paid the full and fair value for the land, and damages consequent upon such taking. The court refused to instruct for the levee board that the value of one year's lease must be deducted from the value of the land as shown by the evidence in the case. From a verdict and judgment for the land owners for $ 70 per acre for land outside the levee, and $ 60 per acre for that inside the levee, the levee board appealed to the supreme court.

Affirmed.

J. T. Lowe, for appellant.

The court below erred in allowing appellee's witnesses, over the objection of appellant, to testify as to the probable yield of the land in controversy, and as to its productiveness and what said lands would rent for annually. 10 Am. & Eng. Enc. Law (2d ed.), 1162.

The court below erred in allowing appellee's witnesses to testify as to the value of the land in question, giving mere opinions of value, and blandly asserting the value, when said witnesses had not properly qualified, and did not base their testimony on any actual cash sales made for similar lands in the same vicinity.

What lands will rent for annually has nothing to do with its true cash value, and this is apparent on the lightest thought given the proposition.

The court below erred in granting the instructions asked by the appellees; first, because it wholly failed to instruct the jury that the owners were entitled to recover from appellant the value of the reversion, and rents reserved less abatement for present payment; that the said reversion is the fee less the term of said leasehold of one year. Levee Commissioners v. Johnson, 66 Miss. 248.

St. John Waddell, for appellees.

Appellant objected to proof of the fact of what the land taken had annually produced up to the time of the taking, and not what...