King v. Mississippi State Highway Com'n, 89-CC-0343

• Decision Date: 26 August 1992
• Docket Number: No. 89-CC-0343,89-CC-0343
• Citation: 609 So.2d 1251
• Parties: Richard G. KING and Marion C. King v. MISSISSIPPI STATE HIGHWAY COMMISSION.
• Court: Mississippi Supreme Court

Page 1251

609 So.2d 1251

Richard G. KING and Marion C. King v. MISSISSIPPI STATE HIGHWAY COMMISSION.

No. 89-CC-0343.

Supreme Court of Mississippi.

Aug. 26, 1992.

K. Maxwell Graves, Jr., Meadville, Doug Wade, Jackson, for appellant.

John R. Kingsafer, Natchez, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

This inverse condemnation case presents an unusual circumstance. Rural homeowners/highway right-of-way condemnees litigated with the condemning authority and were finally paid. A few years later, their home site suffered special damages which they attribute to the highway construction project and insist were not reasonably foreseeable at the time of their original trial. They have now sued for these special damages.

The Circuit Court held the prior action precluded the present one. We affirm.

II.

Richard G. King and Marion C. King are husband and wife who, in 1965, built their home on a 3.35 acre tract they owned along Highway 84 East, east of Meadville in Franklin County, Mississippi. The Kings lived there uneventfully until 1978, when the Mississippi State Highway Commission embarked upon the relocation and reconstruction of U.S. Highways Nos. 84 and 98, State Project No. 98-0015-01-040-10. In connection therewith, the Commission filed an eminent domain action in the Circuit Court of Franklin County, taking 1.21 acres of the Kings' homestead and seeking, as well, a temporary easement over and across an additional .19 acres. The taking lay in a vacant area along the south or southeasterly side of the Kings property. The matter proceeded to trial, and on February 13, 1978, a Circuit Court jury fixed the Kings' compensation for the taking and damages at $9,500.00. The Circuit Court entered judgment on the verdict. No party appealed and, in fact, the Commission promptly paid the judgment.

As fate would have it, the Kings property was quite near to a massive overpass that connects U.S. Highway 98 with U.S. Highway 84, the construction of which required huge excavations and changes in the land. Shortly after the original eminent domain proceedings, the highway contractor embarked upon the project, moving much heavy equipment into the area. We are told without serious dispute that during the construction the grade in the highway was changed and pilings were driven. The construction caused serious vibrations, upsetting the underlying foundation of the Kings' residence. The work caused a drop in the water table, cracks in the residence foundation, basement walls, and doors, plus shifting floors and buckled walls. The Kings say their home has been seriously damaged and practically destroyed.

On August 19, 1987, the Kings commenced the present civil action by filing their complaint in the Circuit Court of Franklin County, naming the Commission as defendant. The Kings asserted an inverse condemnation theory and charged, independent of and over and above the prior action, their property had been taken and damaged for public use. The Commission answered and then by motion for summary judgment urged that the new suit was precluded by the final judgment in the 1978 eminent domain proceedings.

The Kings responded, pressing strongly their view that the present damages were not reasonably foreseeable or discoverable in 1978 and, hence, were not precluded. All agree that the construction work was done according to the Commission's plans and specifications. These plans and specs were on file with the Commission at all times leading up to the 1978 trial and were available to the Kings and their representatives. No one suggests the contractor has been guilty of negligence in the premises. In the end, the Circuit Court credited the Commission's defense and held the action precluded and entered judgment summarily in favor of the Commission and against the Kings.

The Kings now appeal to this Court.

III.

As all now know, a party is entitled to summary judgment if the legally cognizable matters before the court

show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Rule 56(c), Miss.R.Civ.P. Where, as here, the Circuit Court has granted summary judgment, we proceed de novo on appeal. See, e.g., Mantachie Natural Gas District v. Mississippi Valley Gas Co., 594 So.2d 1170 (Miss.1992); Lowery v. Guaranty Bank and Trust Co., 592 So.2d 79, 81 (Miss.1991); Short v. Columbus Rubber & Gasket Co., Inc., 535 So.2d 61, 63 (Miss.1988).

The entire record and course of proceedings in the prior eminent domain action before the Circuit Court of Franklin County have been made part of the present record. Those matters appeared as Docket No. 1745 in the Circuit Court back in 1978. The question today is whether the final judgment in that action precludes the present action.

Our law has long held the final judgment of a court of competent jurisdiction conclusive of questions actually contested and litigated and, as well, of all matters that reasonably might have been presented and litigated by and between the same parties. Bowe v. Bowe, 557 So.2d 793, 794 (Miss.1990); Riley v. Moreland, 537 So.2d 1348, 1354 (Miss.1989); Walton v. Bourgeois, 512 So.2d 698, 702 (Miss.1987); Dunaway v. W.H. Hopper & Associates, Inc., 422 So.2d 749, 751 (Miss.1982); Standard Oil Co. v. Howell, 360 So.2d 1200, 1202 (Miss.1978).

In the law of eminent domain we find a special variant of this rule. In our seminal decision in Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565 (1940), we held:

The compensation awarded the landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from proper use of the land taken, here specifically from the proper construction of the contemplated highway.

Hillman, 189 Miss. at 868, 198 So. at 570. [Emphasis added] We have recited the rule routinely as the occasion arose. See, e.g., Muse v. Mississippi State Highway Commission, 233 Miss. 694, 720, 103 So.2d 839, 850-51 (1958). This res judicata variant is a function of our familiar "before-and-after" rule, authoritatively delineated in Hillman, where, in relevant part, we stated:

The owner of the land is not restricted to the recovery of damages to the remainder from the mere taking of a part thereof, but is entitled to recover all special damages that may result to the remaining land from the public use to which the part taken is to be put.

189 Miss. at 850, 198 So. at 570. We say this on the premise that

the "before and after" rule swallows and absorbs all of the damages of every kind and character....

Mississippi State Highway Commission v. Hall, 252 Miss. 863, 874, 174 So.2d 488, 492 (1965).

Of importance today, we have consistently enforced this conclusive presumption in after-the-fact inverse condemnation actions. See Jackson Municipal Airport Authority v. Wright, 344 So.2d 471, 473 (Miss.1977); Curtis v. Mississippi State Highway Commission, 195 So.2d 497, 502 (Miss.1967); Swett v. Mississippi State Highway Commission, 193 So.2d 596, 599-600 (Miss.1967); Mississippi State Highway Commission v. Tomlinson, 223 Miss. 623, 78 So.2d 797, 799 (1955). Swett addresses the precise question before us today and holds:

Swett's argument that he should be allowed to recover because he had no reason to anticipate damages to his land ... at the time ... [of the prior eminent domain proceedings] is not tenable ... [The prior proceedings] and release [Swett gave] ... referred to the plans for the use of the property on file with the Highway Commission [and] embraced all damages resulting from the proper use of the lands.

Swett, ¹ 193 So.2d at 600.

This would seem to conclude the matter. The Kings claim a crack in the door, however, in the gas pipeline condemnation case of Berry v. United Gas Pipeline Co., 370 So.2d 235 (Miss.1979). There is indeed language in Berry that suggests superficially that construction damage to other property may be

the subject matter of a separate law suit. The final judgment reserved this right to Berry.

Berry, 370 So.2d at 237-38. Any solace the Kings find vanishes when it is seen that United Gas had taken easements from Berry's co-tenants without acquiring an easement from Berry. United Gas and Berry, in fact, entered an agreed judgment which stated Berry's damages and reserved to him, by agreement of the parties, the right to maintain a separate suit for damages to a non-producing gas well located near the easement condemned. Nothing in Berry is inconsistent with the view we have stated above.

More troublesome, however, is certain language quoted in two of our inverse condemnation cases. In Tomlinson the Court reads from 29 C.J.S., Eminent Domain Sec. 28, p. 1370, as follows:

Applying the principles stated above, it is the rule, subject to statutory exceptions, that the owner must recover in one proceeding all the damages which have resulted, or are likely to result in the future, from a proper construction and operation of the improvement,....

Tomlinson, 223 Miss. at 629, 78 So.2d at 799. [Emphasis added] We repeated the quote in Jackson Municipal Airport Authority v. Wright, 344 So.2d at 473. We question whether this implies the converse: that special damages not likely to result in the future are not precluded by the first proceeding.

On the facts, Tomlinson aids the Kings little. The Tomlinson landowner plaintiffs were complaining of damages resulting when, some three years after the taking, the Highway Department made a second elevation in the grade of the highway of approximately four feet. The Court said this was within "all damages which might reasonably result" at the original taking, because the plans and specifications of the original project mentioned a possible additional grade raising as "probable future construction." Wright was an inverse condemnation suit wherein the Jackson Municipal Airport Authority had taken an aviation easement over landowner's property. The...