Green Acres Memorial Park, Inc. v. Mississippi State Highway Commission, 42658

Decision Date13 May 1963
Docket NumberNo. 42658,42658
Citation246 Miss. 855,153 So.2d 286
PartiesGREEN ACRES MEMORIAL PARK, INC. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
CourtMississippi Supreme Court

Prewitt & Bullard, Vicksburg, for appellant.

Teller, Biedenharn & Rogers, Vicksburg, for appellee.

RODGERS, Justice.

This is an eminent domain proceeding, brought by the Mississippi Highway Commission against Green Acres Memorial Park, Inc., a commercial, perpetual care, cemetery. The condemnation proceedings were instituted for the purpose of acquiring a strip of land across the back of the cemetery at a place where no grave spaces had been sold and no interments had been made. The Highway Commission sought the condemnation of the land for the purpose of building Highway 27.

A survey and plat of the land had been made by Green Acres Memorial Park, Inc., (hereinafter called Cemetery) and this plat had been recorded in the office of the chancery clerk. Covenants had been recorded, restricting the use of the property for interment of certain people.

The condemnation proceedings were begun in the County Court of Warren County by a petition properly describing the land. In due time a trial was had and a judgment was entered in accordance with the verdict of the jury, permitting the acquisition of the strip of land, and assessing appellee's damages at $4,000. The Cemetery appealed to the Circuit Court of Warren County where an order was entered affirming the judgment of the county court, and from this order the case has been appealed to this Court.

Appellant complains that reversible error occurred in the trial in the county court because: (1) A witness was permitted to give opinion evidence as to the value of the land taken, without giving evidence as to the value of the entire Cemetery before and after taking; (2) the trial judge permitted evidence to be introduced before the jury showing the value of the land that might be substituted for the land acquired; (3) the trial court should have permitted evidence of the sale price of a similar cemetery property; and (4) certain instructions requested by appellant should have been granted.

The record in this case shows that appellant is a commercial cemetery corporation and that it owned 103 acres of land a few miles east of Vicksburg, Mississippi. Evidence shows that when the property was surveyed certain markers were established on the land and that as the land is sold and is needed for the purpose of burial, it is graded and beautified by planting grass and shrubbery. The Cemetery is located on the south side of Highway 80 and extends south in the form of an inverted letter 'L', that is to say, the bottom part of the 'L' extends to the left, rather than to the right, and in a westerly direction.

The part condemned on the petition of the Commission is the extreme end of the Cemetery on the west side. At the time the condemnation proceedings were instituted the land was covered with bushes, briars and saplings.

After the Commission had introduced area maps showing the location and grade of the strip of land sought to be acquired for the construction of the highway, the jury was transported to the location of the property and permitted to observe the land taken and also the Cemetery property. The Commission then introduced the testimony of Mr. Sam Kliesdorf, an experienced land appraiser, who testified that the highest and best use for the property at the present time was for residential lots. He testified that the value of the acquired land was $800, to this he added the value of a fence taken at $41.60; a new fence to be built valued at $72.17, and the cost of gates and posts valued at $80, making a total of $993.77. He testified that the value of the Cemetery would be $1,000 less than before the taking. He stated he did not attribute any damages to the remainder of the Cemetery. He examined the land records of Warren County to ascertain whether or not any comparable property had been sold in the area, and he found that fourteen acres adjoining the Cemetery had been sold to Mr. Varner (President of the Cemetery) within the past year. He testified that documentary stamps of $1.10 appeared on the deed, indicating a sale price of $80 per acre.

Appellant objected to the testimony of Mr. Kliesdorf and predicates his first two suggestions of error upon the introduction of this evidence.

I.

Appellant complains that the trial court should not have permitted the witness Kliesdorf to have given his opinion of the value of the land taken without requiring the witness to show the total value of the entire Cemetery before the taking and the value of the entire Cemetery immediately after the appropriation.

Appellant argues, 'The question presented by this proposition is whether the rule of Mississippi State Highway v. Hillman, 189 Miss. 850, 198 So. 565 (1940), has been replaced by Morris v. Mississippi State Highway Commission, 240 Miss. 783, 129 So.2d 367.'

The Hillman case, supra, reviewed the authorities, including Section 17 of the Constitution of 1890. The Legislature has since implemented the Constitution by enacting an eminent domain proceeding found in Chap. 3, Title 12, Code 1942, beginning with Sec. 2749. Under this law the justice of the peace is required by Sec. 2760, Code 1942, to instruct the jury that 'The defendant is entitled to due compensation, not only for the value of the property to be actually taken as specified in the application, but also for damages, if any, which may result to him as a consequence of the taking * * *'.

The factual question that immediately presents itself is: What is due compensation in this case? It is obvious that the elements of compensation depend largely upon the nature and extent of the right taken, or the interest acquired, as well as upon the resulting injury to the owner of the property. When the whole property is taken, the damage is the fair market value of the property. See Orgel on Valuation under Eminent Domain, 2d Ed., Vol. 1, Sec. 15, p. 76; 29 C.J.S. Eminent Domain Sec. 138, p. 976.

Market value means the fair cash, market value as between one who wants to purchase and one who wants to sell, or the amount for which it would actually sell at the time (not what it might bring or ought to bring at some future time). Orgel on Valuation, supra, p. 76; 29 C.J.S. Eminent Domain Sec. 137, p. 974; Miss. State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565.

On the other hand, where a part of a tract of land is taken for public use, the 'due compensation' which Section 17, Mississippi Constitution 1890, guarantees an owner is not only the value of the property taken, but also the damages accruing to the residue of the land resulting from the taking, and the measure of damage is the damage done to the fair market value of the entire tract by the taking. In short, the owner is entitled to the difference in the value of the whole tract immediately before and immediately after the appropriation is made. This is said to be the rule in the 'Hillman case', supra. Many cases to the same effect have been decided by this Court since the decision in the Hillman case. Some of these authorities are listed in the cases of Union Producing Company v. Pittman, Miss., 146 So.2d 553; Lee v. Indian Creek Drainage Dist. No. 1 of Panola, Quitman and Tunica Counties, Mississippi, et al., 148 So.2d 663, Miss.; Miss. State Highway Commission v. Strong, 240 Miss. 756, 129 So.2d 349. See also 29 C.J.S. Eminent Domain Sec. 139, p. 976; Bennett v. City of Marion, 106 Iowa 628, 76 N.W. 844; Chicago, R. I. & P. R. Company v. O'Neill, 58 Neb. 239, 78 N.W. 521.

In the Hillman case, however, we pointed out that 'There are exceptional cases to which this before and after taking rule is not applicable. Richardson v. Board of Levee Commissioners, 68 Miss. 539, 9 So. 351.'

In the case of Morris v. Miss. State Highway Commission, 240 Miss. 783, 129 So.2d 367, the witness for the Commission testified as to damages to land taken without appraising the fair market value of the remaining land, and stated that the remaining part of the land was not damaged. This Court in commenting on the Hillman case said:

'Actually there was no departure in the present case from the before and after rule as a measure of damage. The jury was properly instructed according to the before and after rule. What the trial court did in reference to the testimony of appellee's witnesses was to permit a variation in the method of proving the difference in the before and after value. The witnesses were entitled to their opinion that the land remaining which was south of the new facility was not damaged by the taking. The jury had a right to believe these witnesses.'

In the instant case, the witness Sam Kliesdorf did not base his opinion of the damages resulting to the owner on the difference between the fair market value of the entire plot of land before and immediately after the taking. He said: 'I would say the value of the property after the taken would be $1,000.00 less than the value before the take in view of the fact there cannot be any damages to the property because of the taking of this one acre on the western perimeter of the property.' He then said he did not attribute any damages to the remainder of the land.

In the case of Miss. State Highway Commission v. Strong, 240 Miss. 756, 129 So.2d 349, we said: 'The 'before and after' rule, however, does not mean that each witness must give a before and after valuation of the property; because some witnesses may know the fair market value of the property before the taking, and not know the fair market value of the property after the taking, and vice versa. Again a witness may not know the overall valuation of the property before and after the taking, but may know, for example the value of a fence * * *'.

Testimony of an expert witness is often attacked by counsel and sometimes excluded by the court when...

To continue reading

Request your trial
17 cases
  • Potters II v. State Highway Com'n of Mississippi, 90-CC-1096
    • United States
    • Mississippi Supreme Court
    • 26 Agosto 1992
    ...Highway Commission v. Central Land & Rental Corp., 239 So.2d 335, 338 (Miss.1970); Green Acres Memorial Park, Inc. v. Mississippi State Highway Commission, 246 Miss. 855, 153 So.2d 286, 290, 291 (1963); Mississippi State Highway Commission v. McCardle, 243 Miss. 111, 137 So.2d 793, 796 (196......
  • State Highway Commission v. American Memorial Parks, Inc.
    • United States
    • South Dakota Supreme Court
    • 14 Julio 1966
    ...'just compensation." This reasoning persuades us of its soundness and conclusions. See also Green Acres Memorial Park, Inc. v. Mississippi State Highway Commission, 246 Miss. 855, 153 So.2d 286; Van Voorhis, J., dissenting in St. Agnes Cemetery v. State, To justify departing from the genera......
  • State Highway Com'n of Mississippi v. McDonald's Corp.
    • United States
    • Mississippi Supreme Court
    • 8 Abril 1987
    ...easement, without resort to a "before-and-after" taking valuation of the remainder. See: Green Acres Memorial Park v. Mississippi State Highway Commission, 246 Miss. 855, 153 So.2d 286, 289 (1963); Morris v. State Highway Commission, 240 Miss. 783, 129 So.2d 367, 370 McDonald's and Robinson......
  • Ford v. Destin Pipeline Co., LLC, No. 98-CA-00454-SCT.
    • United States
    • Mississippi Supreme Court
    • 11 Mayo 2000
    ...that would be negotiated between one who wants to purchase and one who wants to sell. Green Acres Memorial Park, Inc. v. Mississippi State Highway Comm'n, 246 Miss. 855, 153 So.2d 286, 289 (1963). The seller must be one who desires but is not obligated to sell, and the buyer must be under n......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT