Board of Levee Commissioners for Yazoo-Mississippi Delta v. Dillard

• Decision Date: 20 March 1899
• Citation: 76 Miss. 641,25 So. 292
• Parties: BOARD OF LEVEE COMMISSIONERS FOR YAZOO-MISSISSIPPI DELTA v. DILLARD, COFFIN & MAYES. [*]
• Court: Mississippi Supreme Court

25 So. 292

76 Miss. 641

BOARD OF LEVEE COMMISSIONERS FOR YAZOO-MISSISSIPPI DELTA v. DILLARD, COFFIN & MAYES. ^[*]

Supreme Court of Mississippi

March 20, 1899

November 1898

FROM the circuit court, first district, of Coahoma county, HON. T A. MONTGOMERY, Judge.

The opinion states the case.

Reversed and remanded.

The brief of Cooper & Waddell, for appellant, is not in the record, and cannot be found by the reporter.

D. A Scott, for appellee.

1. I do not understand that a rule has ever been applied in proceedings of this kind different from that applied in ordinary cases. It is new doctrine to say that jurors are rendered incompetent by the fact that they had officiated in other trials involving like issues. 6 Am. & Eng. Enc. L., (1st ed.), and notes. There is respectable authority for the position that jurors in condemnation proceedings may serve a second time in the same case. Lewis on Emi. Dom., sec. 405, p. 517.

2. The witnesses for the appellee having first testified that they were thoroughly familiar with the land in controversy, its character, location, improvements, fertility, productiveness, etc., and that they were also familiar with other lands of like character and quality in the immediate neighborhood of the lands in controversy, were asked the question, what, in their opinion, was the cash market value of the said land at the time it was appropriated to a purchaser who wished to buy that class of land and was willing to pay its fair, cash market value, to which objection was made, it being contended that land values in condemnation proceedings could not be shown by opinion evidence. That the court below committed no error in overruling this objection, appears to me too clear for argument or discussion. In subsequently excluding a good deal of this evidence the court below committed error, but it is not error of which the appellants can complain. Opinions of farmers as to the value of lands taken for public use are admissible. Railway Co. v. Hawk, 7 Am. St. Rep., 566, s.c. 39 Kan. 638.

"The opinion of witnesses as to the value of land and damages done to the residue of the tract is always admissible." 6 Am. & Eng. Enc. L. (1 Ed.), 622 c.

"Nor is it necessary that such witnesses should be experts. It is sufficient if they are acquainted with the value of other lands in the same neighborhood. The opinion of the owner of the land is also competent." 6 Am. & Eng. Enc. L. (1 ed.), 620-721.

Mr. Sutherland, in his work on Damages, sec. 1089, under the heading of "Proof of Value and Damages, " says: "These are not susceptible of precise proof, and can only be approximately shown by the opinions of the witnesses having the requisite information." Mr. Lewis on Eminent Domain, p. 436, also says: "For the purpose of establishing the value of land for public use, opinion testimony is competent." See authorities in note, Railway Co. v. Hawk, 7 Am. St. Rep., 568.

It was insisted in the court below that it was not competent to prove by a witness, who had the requisite knowledge, that the land in controversy was fertile and productive, and what, during an ordinary cotton and corn producing year, the land would yield. My understanding of the rule is that any evidence which tends to show the market value of the land, or which might be or would influence an ordinary buyer who desired to purchase the land, is always competent; and just here I insist that, if there was any error committed in the court below, it was in excluding from the jury the testimony of certain witnesses because of the fact that they based their opinions as to the value of the land in controversy partly upon its revenue-producing capability or capacity. Surely it will not be contended that an ordinarily prudent man who wished to purchase agricultural land would not be influenced or affected by the fact that, during an ordinary year, the land in question would produce from three-quarters to a bale of cotton per acre, and from forty to fifty bushels of corn per acre, or that it would rent for eight or ten dollars per acre; or, if worked, as lands in this section very frequently are, upon the share system, he would derive a revenue of from ten to fifteen dollars per acre. 6 Am. & Eng. Enc. L. (1st ed.), 1618 a; Miss. & Rum River Book Co. v. Patterson, 98 U.S. 206; Young v. Harrison, 17 Ga., 30; 3 Sutherland on Damages, secs. 1066, 1074; 6 Am. & Eng. Enc. L. (1st ed.), 568; Postal Tel. Co. v. A. & V. Ry. Co., 68 Miss. 318; Richardson v. Levee Commissioners, 68 Miss. 539, 542; Mills on Em. Dom., sec. 168; Lewis on Em. Dom., sec. 472.

3. There was no error in the modification of appellant's first instruction. In estimating the due compensation to which a landowner is entitled when his land is appropriated for public use, the measure of damages, according to a well-established rule, is the difference between the value of the land, as a whole, before and after a part of it is taken for public use. I further understand that this court has sanctioned the rule that, in estimating the damages to which the landowner is entitled, the jury should allow to the plaintiff the market value of the land taken, considered as a part of the plantation or property from which it is taken at the time of the appropriation. Wabash, etc., R. R. Co. v. McDougall, 9 Am. St. Rep., 539; Driver v. Western Union R. R. Co., 14 Am. St. Rep., 726; Pennsylvania, etc., R. R. Co. v. Cleary, 11 Am. St. Rep., 913; Isom v. Ry. Co., 38 George, 300; Levee Board v. Harkleroads, 62 Miss. 807; Richardson v. Levee Board, 68 Miss. 539; Hopson v. R. R. Co., 73 Miss. 773; 6 Am. & Eng. Enc. L. (1st ed.), 571, and note.

The owner is entitled to have his compensation or damages assessed for the injury to the entire tract of which the land appropriated is a part. Whether the land in question constituted, at the time of the trial, one tract or farm, and the extent to which the whole or any portion thereof might have been injured, were questions for the jury. Kremer v. C. M. & St. P. R. R. Co., 38 Am. St. Rep., 468, s.c. 56 Minn. 15.

OPINION

TERRAL, J.

On the second of November, 1897, the board of levee commissioners for the Yazoo-Mississippi Delta, holding the power of eminent domain, applied, by petition to the clerk of the circuit court of Coahoma county, to have the appraisers, appointed to assess levee damages, to be required to view, ascertain and determine the value of certain lands in sections 25 and 36 of township 30, range 4 west, and in sections 30 and 31 of township 30, range 3 west, minutely and specifically described in their petition in that behalf, aggregating thirty-four acres of land, lying in said county, and belonging to Dillard, Coffin & Mays, which they alleged it to be necessary to be taken and used in the construction and enlargement of the levee maintained by said board. A warrant having been issued to said appraisers, two of them (being a majority) assembled, on the sixteenth of November, 1897, and, pursuant to said authority, they duly assessed and awarded against said levee board, for the taking of said thirty-four acres of land of said Dillard, Coffin &amp Mays, the sum of $ 1, 902.30, being $ 55.95 per acre, to be paid to said Dillard, Coffin & Mays. The said Dillard, Coffin & Mays, being dissatisfied with the smallness of said assessment, in due time filed with the clerk of the circuit court their petition, by way of appeal to said court, in which they alleged that said appraisers should have assessed the value of the thirty-four acres of land taken by said board for levee purposes at the sum of $ 3, 400, being $ 100 per acre, which sum of $ 3, 400 they alleged to be the reasonable cash market value of the thirty-four acres of land taken and appropriated by the defendant levee board, to which declaration or statement of law and fact the defendant levee board pleaded that the sum awarded by the appraisers to plaintiffs for the thirty-four acres of land "was not unjust and inadequate, but that the award was more than the actual cash market value of the lands so taken, at the time of the taking, considered as a part of the entire tract from which it was taken, and that said appraisers should not have awarded a total of $ 3, 400 therefor, and that the plaintiffs are not entitled to have and recover for the same the sum of $ 3, 400, and all of which defendants ask may be inquired of by the country." The plaintiffs, for a replication to said plea, averred that it is not true, as...