Howell v. State Highway Com'n of Mississippi, 89-CC-0772

Decision Date19 December 1990
Docket NumberNo. 89-CC-0772,89-CC-0772
CourtMississippi Supreme Court
PartiesDon W. HOWELL and Jimmy D. Howell v. STATE HIGHWAY COMMISSION OF MISSISSIPPI.

Dexter C. Nettles, Jr., Smith Smith & Nettles, Carthage, for appellants.

A.R. Wright, Jr., Wright & Phillips, Carthage, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

This cause comes on appeal from the Special Court of Eminent Domain, Leake County, Mississippi, Edward A. Williamson presiding. On September 24, 1985, the State Highway Commission of Mississippi (Highway Commission) filed an application seeking to condemn a portion of a lot owned by Don W. Howell and Jimmy D. Howell (the Howells) in order to widen Highway 16 in Carthage, Mississippi. The property was taken pursuant to the "Quick Take" eminent domain statutes. See Miss.Code Ann. Secs. 11-27-81, et seq. (Supp.1990). A jury trial was held to determine the compensation due to the Howells from the Highway Commission for the condemned property. At the conclusin of the evidence the jury found that the Howells were entitled to compensation from the Highway Commission in the amount of Ten Thousand Dollars ($10,000.00). Upon payment of said award plus legal interest from the date of filing, the trial court awarded ownership of the property to the State Highway Commission of Mississippi.

At the trial, the Howells moved to dismiss the action alleging that the Highway Commission failed to establish a prima facie case as to the value of the condemned property. The trial court overruled the motion. The Howells appeal the trial judge's decision to this Court.

The property at issue is a corner lot which lies on the south side of Highway 16 and consists of 0.42 acres. The Highway Commission condemned approximately a 35 foot wide strip of land along the northern boundary of the Howells' land. This strip of land consisted of 0.09 acres (3920 square feet). The Highway Commission also took a temporary easement in the northeast corner of the property consisting of 0.01 acres (435 square feet). Prior to the take there existed 116 feet of accessible road frontage to Highway 16 and 190 feet of road frontage to Dorrill Street. After the take there remained 109.3 feet of road frontage to Highway 16 and 154 feet to Dorrill Street.

At the time of the take Jimmy Howell resided in a structure which sits on the lot, but which was not part of the take. At some time after the take the Howells converted the residence to an insurance agency.

The zoning ordinances of Carthage require a 35 foot setback line from a highway right-of-way. The significance of this ordinance is that no structures may be built within 35 feet of the highway. Prior to the take there was approximately 39 feet between the building and the highway, 35 feet of which was parking in front of the residence on the property. After the take there remained only four feet in the front of the building and approximately five or six feet in the rear. The Howells contend that after the take, they no longer had use of their previous parking area and they could no longer alter or reconstruct the building due to the setback line. One witness for the Highway Commission believed the setback line would not affect use of the property as a parking lot.

John Allen, the Highway Commission's appraiser, testified to the value of the condemned property before and after the take. Although Jimmy Howell was residing in the structure on the lot, the Highway Commission appraised the lot as commercial property based on the appraiser's opinion that the highest and best use of the lot was commercial, not residential. See, Miss. State Hwy. Comm'n v. Wagley, 231 So.2d 507, 509 (Miss.1970). After reviewing eight comparable sales of commercial lots, the appraiser valued the lot before the take at $22,870.00 or $1.25 per square foot, and after the take at $17,570.00 or $0.96 per square foot. The total compensation due the Howells according to the Highway Commission was $5,300.00.

The Howells objected to the use of the Highway Commission's comparable sales alleging that they were not comparable because all were vacant lots with no buildings on them. The court overruled the objection. When the Highway Commission rested, the Howells then moved to dismiss the action because the Highway Commission failed to establish a prima facie case of the value of the property. This motion also was overruled.

The Howells, then, put on their proof of the value of the property. Their witness was an appraiser who valued the lot and residence before the take at $59,355.00. This appraiser valued the lot relying, as did the Highway Commission, on comparable sales of commercial property. However, his valuation greatly exceeded the other appraiser's value. He found the lot absent the structure to be worth $43,520.00. The appraiser, then, valued the residence on the lot at $15,835.00.

After the take the appraiser valued the land at $33,958.32 plus a $200.00 easement. The appraiser arrived at this result by taking the entire value of the property ($59,355.00) and subtracting the appraiser's value after the take of the right-of-way ($9,361.68), the residence ($0), and the easement ($200.00). The total loss was found to be $25,396.68, and the total compensation due the Howells according to their witness was $34,138.32.

The Highway Commission moved to exclude the Howells' appraiser's testimony because that appraiser failed to properly apply the before and after rule. The court overruled the motion. At the conclusion of the evidence the jury found that the Howells were entitled to compensation from the Highway Commission in the amount of Ten Thousand Dollars ($10,000.00).

On appeal the Howells contend that the Highway Commission did not meet its burden of proof because its appraiser who valued the property relied on comparable sales which in fact were not comparable. However, we note that the Howells forwent their opportunity to cross-examine and discredit the comparable sales relied on by the Highway Commission's appraiser. The shrewdness of this tactical decision depends on whether there was in fact damage to the remainder property.

We previously have placed the burden on the Highway Commission to prove the value of condemned property and we have required dismissal of the proceedings when the Highway Commission has failed to properly establish this value. Ellis v. Miss. State Hwy. Comm'n, 487 So.2d 1339, 1342 (Miss.1986). In this case the Highway Commission properly relied on the use of comparable sales as a means to value the property. See Rebelwood, Ltd. v. Hinds County, 544 So.2d 1356, 1360-61 (Miss.1989); Miss. State Hwy. Comm'n v. Franklin County Timber Co., Inc., 488 So.2d 782, 785 (Miss.1986). In using this method of valuation we do not require the comparable sales to be identical in every respect. Franklin County Timber Co., 488 So.2d at 785. The trial judge has wide discretion in allowing testimony of comparable sales, and we encourage the judge to allow liberal cross-examination to permit testing of the true utility of the comparable sales. Franklin County Timber Co., Inc., 488 So.2d at 785. However, if the evidence shows that the comparables are entirely different from the property taken, then the valuation should be discredited. Id.

To determine whether the comparable sales relied on by the Highway Commission in its valuation of the property in fact were comparable, this Court must determine whether the valuation was in...

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