City of Gulfport v. Anderson, 07-58431

• Decision Date: 27 September 1989
• Docket Number: No. 07-58431,07-58431
• Parties: CITY OF GULFPORT, Mississippi, a Municipal Corporation v. Wray W. ANDERSON.
• Court: Mississippi Supreme Court

Page 873

554 So.2d 873

CITY OF GULFPORT, Mississippi, a Municipal Corporation v. Wray W. ANDERSON.

No. 07-58431.

Supreme Court of Mississippi.

Sept. 27, 1989.

James K. Wetzel and Wendy Allard, James K. Wetzel, P.A., Gulfport, for appellant.

G.E. Estes, Jr., Estes & Estes, Gulfport, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and PITTMAN, JJ.

ROBERTSON, Justice, for the Court:

I.

In this inverse condemnation action landowner claims the city's alteration of a main thoroughfare has reduced the value of his property. A major part of landowner's perceived loss is the city's withdrawal of his permissive use of a part of its right-of-way, and the pinch the landowner feels because his store building fronts on the right-of-way line.

Because landowner's valuation evidence, the Circuit Court's instructions, and ultimately the jury's verdict took no account of landowner's imprudence in the location of his store building on his lot, we reverse and remand for a new trial.

II.

A.

In 1963 Wray W. Anderson purchased what was then a grocery store on the southeast corner of the intersection of Courthouse Road and Railroad Street in the Mississippi City community in Harrison County. In 1966 he moved the family hardware business from downtown Gulfport to this property. In 1968 Gulfport annexed the area. Anderson and his family operated Anderson Hardware there until some time in 1987 when the business closed. At the time of the purchase, and up until 1985, the street facing the store's front, Courthouse Road, was of the same leveled grade as the "parking lot" of the store. But this parking lot did not belong to Anderson. For years customers stopped off the busy street and parked directly in front of the building, even though this area was a city owned right of way. Built years before Anderson purchased it, the building's west-facing front rested right on the western edge of the property contiguous to the east boundary of the City's street right-of-way. The building overhangs into the airspace above the city's right-of-way.

Courthouse Road runs north and south, and in March of 1984, Gulfport developed a plan to widen it from 31 to 44 feet. Funded in part with federal money, the project was completed in December of 1985. The L & N Railroad's east-west tracks lie north of the Courthouse Road-Railroad Street intersection. Because of federal guidelines (in particular, visibility requirements for railroad crossings), the City raised and graduated the grade of Courthouse Road, so that at the Anderson property's northwest corner, the road was 2.2 feet above the property's grade, receding gradually to about one foot above the southwestern edge of the Anderson property. More significantly, the City of Gulfport installed a concrete curb that wraps around the northwest corner of the Anderson property. This curb has reduced access to the property to a twenty foot cut, about half of which is on the Anderson property, on the southwestern edge of the property, and the back of the property, its northeastern edge. The twenty foot curb cut allows a car to enter a driveway between the curb and the front of the building, a space which is sufficiently narrow to make navigating a car tight. A fireplug further obstructs vehicular movement.

Prior to the construction, drainage from the property was provided by a grill in the northwest corner of the property, but most water simply flowed south along the roadway into the Gulf of Mexico. As part of the construction Gulfport installed a catch basin and drain pipe on the property, a system which Anderson claims is inadequate to prevent flooding.

B.

Anderson brought this inverse condemnation action in the Circuit Court of Harrison County on September 23, 1985, naming the City of Gulfport as defendant. Anderson sought damages as a result of the road widening, see Miss. Const. Art. 3, Sec. 17 (1890), and expenses, Miss.Code Ann. Sec. 43-37-9 (1972).

A jury trial commenced on the 18th of September, 1986. The Circuit Court denied Gulfport's motion for a directed verdict, after which the jury viewed the premises, and returned a verdict for Anderson in the amount of $45,000.00. The Court thereafter denied Gulfport's motion for j.n.o.v. and new trial. In a separate hearing on September 26, 1986, the Circuit Court awarded Anderson $13,782.58 in expenses under Section 43-37-9. The total judgment, $58,782.58, included interest at the rate of 8 percent per annum after September 22, 1986, for the damage award, and October 8, 1986, for the expenses portion.

III.

The City of Gulfport has taken title to not so much as an inch of Anderson's property. Today's claim is predicated upon damage qua loss of value Anderson's property is said to have suffered by reason of the City's alterations to its roadway.

Not all governmental actions that adversely affect value require compensation. The police power authorizes a certain level of petty larceny, one familiar example being the power to zone. Even in its exercise of the power of eminent domain, the state is not required to make good all losses. See Jones, Just Compensation Via Fair Market Value May Not Include the Kitchen Sink--It Could Be Noncompensable, 46 Miss.L.J. 1, 8-17 (1975). Governmental authorities are generally empowered to promote the general welfare via reasonable regulations of streets and roadways without payment of compensation. Harreld v. Mississippi State Highway Commission, 234 Miss. 1, 19, 103 So.2d 852, 859 (1958). This includes such acts as diversion of traffic by construction of a new highway and installing a median strip. Mississippi State Highway Commission v. Hurst, 349 So.2d 545, 546 (Miss.1977).

We look to law and not logic to find which "takings" are compensable. Property is a function of law, not of value, nor of sentiment nor illusion, and our question is whether there be a rule of the positive law precluding Gulfport's interference with the value of Anderson's property and thus conferring a right to compensation. One such rule is that a change of grade in a roadway which adversely affects the value of adjacent property requires compensation. An actual physical invasion of landowner's property is not required. This view is a function of our constitution which requires due compensation where property is "taken or damaged for public use." Miss. Const. Art. 3, Sec. 17 (1890) (emphasis supplied). Parker v. State Highway Commission, 173 Miss. 213, 219-20, 162 So. 162, 163 (1935); City of Vicksburg v. Herman, 72 Miss. 211, 214-15, 16 So. 434, 434 (1894). A common example is where a change in road grade casts increased quantities of waters upon landowner's property. See, e.g., City of Water Valley v. Poteete, 203 Miss. 382, 33 So.2d 794, 795-96 (1948).

Persons owning property abutting streets such as Courthouse Road enjoy a right of reasonable access. That access has been altered does not necessarily require compensation. Only where--and to the extent that--alteration of access diminishes the value of the property is the owner entitled to compensation. See, e.g., State Highway Commission of Mississippi v. McDonald's Corporation, 509 So.2d 856, 861 (Miss.1987); Trustees of Wade Baptist Church v. Mississippi State Highway Commission, 469 So.2d 1241, 1244-45 (Miss.1985); Mississippi State Highway Commission v. Ray, 215 So.2d 569, 571 (Miss.1968). We have rules that matters such as parking and increased difficulty in maneuvering automobiles may likewise be considered to the extent of their adverse effect on value. Crocker v. Mississippi State Highway Commission, 534 So.2d 549, 552 (Miss.1988); State Highway Commission of Mississippi v. Havard, 508 So.2d 1099, 1102-03 (Miss.1987).

Loss of frontage that "moves" buildings and facilities closer to a roadway may adversely affect value and we find among our laws rules requiring compensation. State Highway Commission of Mississippi v. Havard, 508 So.2d 1099, 1100-01 (Miss.1987). That loss is legally illusory where, as here, there has been no taking, only a reclaiming of a right-of-way landowner has theretofore enjoyed at the City's sufferance and where the landowner has boxed himself in by the manner in which he has constructed or purchased the improvements on his property. Compensation is due only to the extent the damage is caused by governmental action as distinguished from landowner or purchaser imprudence. When Anderson purchased the property in 1963, the building, which was then a grocery store, was built right up to and fronted upon the edge of the City's eastern right-of-way. Anderson converted the property into a hardware store and operated his business there until the time of trial. As noted, the building has an overhang which invades air space above the City's right-of-way. This is landowner imprudence.

That Anderson enjoyed use of the City's right-of-way for lo these many years avails him nothing. ¹ Mississippi State Highway Commission v. Hale, 531 So.2d 623, 625-26 (Miss.1988); State Highway Comm. of Mississippi v. McDonald's Corporation, 509 So.2d 856, 861 (Miss.1987); Mississippi State Highway Commission v. Blackwell, 350 So.2d 1325, 1327 (Miss.1977). So long as, after the governmental action at issue, there remains access which would be reasonable if the property had been reasonably improved, no compensation is due.

Our problem is that Anderson--indeed, much of the trial--proceeded without reference to these principles. Anderson's proof attacked the matter of damage quite variously. Roger Poulos offered an opinion that the property had been damaged some $32,000.00. Anderson testified his loss was $65,000.00. In their "before" values neither Poulos nor Anderson took account of the imprudent placement of the building on the lot.

Brax Batson, a civil engineer, said removing the building, filling the land and then replacing the building would cost $180,000.00, while removing the front part of the building and adding it to the rear would cost $48,000.00. Jack Ballard...