Dear v. Madison County By and Through Madison County Bd. of Sup'rs

• Decision Date: 26 January 1995
• Docket Number: No. 91-CA-0627,91-CA-0627
• Citation: 649 So.2d 1260
• Parties: Alice Pike DEAR, Sandra Stout Lee, Diane Stout Bruce, Susan Stout Hinton and Otha Bruner Bruce, Jr. v. MADISON COUNTY, Mississippi acting By and Through The MADISON COUNTY BOARD OF SUPERVISORS, and The City of Ridgeland, Mississippi.
• Court: Mississippi Supreme Court

Page 1260

649 So.2d 1260

63 USLW 2496

Alice Pike DEAR, Sandra Stout Lee, Diane Stout Bruce, Susan

Stout Hinton and Otha Bruner Bruce, Jr. v. MADISON COUNTY, Mississippi acting By and Through The

MADISON COUNTY BOARD OF SUPERVISORS, and The City

of Ridgeland, Mississippi.

No. 91-CA-0627.

Supreme Court of Mississippi.

Jan. 26, 1995.

Stephen W. Rimmer, Rimmer Rawlings Harrison MacInnis & Hedglin, John F. Simon, Jr., Young Scanlon & Sessums, Jackson, for appellant.

James H. Gabriel, Pyle Dreher Mills & Dye, Jackson, G. Dewey Hembree, III, Montgomery Smith-Vaniz & McGraw, Canton, for appellee.

Before HAWKINS, C.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

HAWKINS, Chief Justice, for the Court:

In November of 1990 Madison County and the City of Ridgeland brought this action for Finding that the evidence was properly excluded, we affirm.

the condemnation of lands of the Appellants for the construction of a roadway. The construction was to be financed by a special assessment upon landowners abutting the new road, and the Appellants sought to offer evidence of the impact of the special assessment upon the value of the property subsequent to the taking. By Motion in Limine the county and city sought to exclude such evidence; the trial court granted the motion. The landowners have brought this appeal assigning the exclusion of the evidence as to the special assessment as the only error.

FACTS

This action grows out of a project of Madison County and the City of Ridgeland for the construction of the Summertree Parkway running from State Highway 463 to Hanging Moss Road at I-220. During consideration of the project, it was determined that it would be financed by way of a special assessment upon abutting landowners. Enabling legislation was sought and obtained, adopted by the Mississippi Legislature as Senate Bill No. 3036 and signed by the Governor on March 31, 1989. Through this action, filed on November 20, 1991, in the Special Court of Eminent Domain of Madison County, Mississippi, the county and the city sought to condemn approximately 73,772 square feet of the Appellants property for the project, leaving them with lands fronting on the new parkway. The Statement of Values filed by the landowners included the consideration of the special assessment authorized by Senate Bill 3036. During the trial, the county and city filed their Motion in Limine asking the Court to exclude evidence and testimony regarding the special assessment as damages to the remainder of the Appellants' property after the taking. Upon hearing, the trial judge granted the motion, and a profert was made by way of the affidavit of the landowners' expert witness with his appraisal attached. The result was the reduction of the appraisers' estimate of damage to the remainder part of the landowners' property by $135,250. At the conclusion of the trial, judgment was entered for the landowners in the amount of $45,500.

DISCUSSION

The fundamental law governing the taking of lands under eminent domain in Mississippi is Article 3, Sec. 17 of the Mississippi Constitution which mandates that "private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof...." In determining what constitutes due compensation this Court has taken an expansive view as to damages to the portion of a tract not taken. Dykes v. State Highway Commission of Mississippi, 535 So.2d 1349 (Miss.1988), and State Highway Commission of Mississippi v. Havard, 508 So.2d 1099 (Miss.1987). However, the question of whether increased taxes by way of a special assessment upon abutting lands including those of the condemnee for financing a public works project constitute elements of due compensation is one of first impression in Mississippi.

Neither the constitutional mandate nor the previous decisions of this Court direct that all economic events and governmental action surrounding a project should be deemed damages or factors of the compensation due the party from whom property is taken. Under most circumstances the decline in the value of a business located upon the condemnee's remaining property is not a proper element of damages. Potters II v. State Highway Commission of Mississippi, 608 So.2d 1227 (Miss.1992). The Court recognized that our law had not yet defined all the limits saying:

Notwithstanding [the constitutional provision] we have never held compensable every diminution of value. Zoning laws and the authority to place public projects are familiar sources. "Many exchangeable values may be destroyed intentionally without compensation". Nor have we settled where the line ought be drawn. For the moment, takings are delimited by law which may or may not include all values--matters of fact. Value is the measure of due compensation attendant upon a taking or damage previously and independently defined by law. In a given case, subject to legal parameters, what is taken is a function of the complaint filed by the condemning authority. And the same of what damage is compensable.

Potters II at 1230-1231 (citations and footnote omitted).

Certainly, constitutional history does not force the conclusion that the governing authority is obligated to compensate citizens for the economic impact of every action it takes; on the contrary, government has powers that do not carry with them the duty to compensate, as is attendant to eminent domain, which extend beyond the zoning authority mentioned in Potters II. These include the authority to relocate roads and highways, Wheeler v. State Highway Commission of Mississippi, 212 Miss. 606, 55 So.2d 225 (1951), and the exercise of its police powers through the regulation of traffic control and designation of access, Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839 (1958). Likewise, the power to tax has long been held to be independent of the eminent domain power and carries with it no duty to compensate. Swayne v. City of Hattiesburg, 147 Miss. 244, 111 So. 818 (1927), aff'd per curiam, 276 U.S. 599, 48 S.Ct. 320, 72 L.Ed. 724 (1928); Union Savings Bank and Trust Company v. City of Jackson, 122 Miss 557, 84 So. 388 (1920).

In both Swayne and Union Savings the taxpayers challenged special assessments to abutting landowners for new street construction arguing that such was a taking of property without just compensation and therefore in violation of the state and federal constitutions. In the Swayne case the taxpayer acknowledged that the notice, hearing and other procedures employed by the city in the adoption of the assessment were in compliance with the appropriate statute, ¹ but she argued that since the amount of the assessment far exceeded any benefit that she would receive from the project, she was being deprived of her property without just compensation. Rejecting that position, the Court made clear that "Section 17 of the Constitution of this state, which prohibits the taking or damaging of private property for public use except on due compensation being first made to the owner, has no application to the taxing power of the state...." Swayne, 147 Miss. at 255, 111 So. at 820.

Of course, to say that an assessment may be imposed without compensation does not alone dispose of this case since the issue before the Court is whether an assessment to be imposed upon the remaining property is a proper element to be considered in determining the value of the remaining property which will be burdened by the tax. In a pure commercial appraisal, the anticipated tax burden upon a property might well be a necessary consideration as might the various enhancements resulting from the taking be treated as enhancements. However, in determining values for eminent domain purposes there are special rules that must be applied. "If less than the whole of a defendant's interest in property is taken, nothing shall be deducted therefrom on account of the supposed benefits incident to the public use for which the petitioner seeks to acquire the property." Miss.Code Ann. Sec. 11-27-21 (1972). Regardless of appraisal standards applied for other purposes, this Court has long held to the rule that in condemnation proceedings neither general benefits nor general injuries to the remaining property are to be considered. Mississippi State Highway Commission v. Hancock, 309 So.2d 867 (Miss.1975); Pearl River Valley Water Supply District v. Brown, 254 Miss. 685, 182 So.2d 384 (1966), corrected 254 Miss 685, 184 So.2d 407; Mississippi State Highway Commission v. Colonial Inn, Inc., 246 Miss. 422, 149 So.2d 851 (1963); Mississippi State Highway Commission v. Stout, 242 Miss. 208, 134 So.2d 467 (1961), overruled in part Leflore v. Mississippi State Highway Commission, 390 So.2d 284 (Miss.1980); Mississippi State Highway Commission v. Hillman 89 Miss. 850, 198 So. 565 (1940). In Colonial Inn general benefits and injuries are defined as those shared generally by the neighborhood in which the project is located.

No argument is made by the landowners here that the special tax assessment is limited to themselves or to those whose lands are taken; rather, the tax is acknowledged to be imposed upon those abutting the parkway generally. It is thus clear that the assessment is an action under the taxing power of the government applicable generally to those in the area and that, as such, should be excluded from the valuation process.

Although this question has never before been presented to this Court, it has been considered in other jurisdictions. In states which do not allow consideration of the impact of the improvements to enhance the value of the retained land after the taking, the courts seem universally to disallow consideration of special assessments associated with the construction as damages. See annotation, Eminent Domain: Consideration of the Fact That Landowner's Remaining Land Will Be Subject to Special Assessment in Fixing Severance Damages, 59 A.L.R. 3rd 534 (1974). I...