Kwong v. Board of Mississippi Levee Commissioners

• Decision Date: 02 January 1933
• Docket Number: 30289
• Citation: 164 Miss. 250,144 So. 693
• Court: Mississippi Supreme Court
• Parties: JOE DUCK KWONG et al. v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS

144 So. 693

164 Miss. 250

JOE DUCK KWONG et al. v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS

No. 30289

Supreme Court of Mississippi

January 2, 1933

Division B

Suggestion Of Error Overruled January 2, 1933.

APPEAL from chancery court of Washington county, HON. J. L WILIJAMS, Chancellor.

Proceeding by Joe Duck Kwong and others against the Board of Mississippi Levee Commissioners. From the decree, the petitioners appeal. Reversed and rendered.

Reversed and judgment here for the appellants.

Percy, Strauss & Kellner, of Greenville, for appellant.

The abutting owner has special interests and rights in a public street, which are valuable and indispensable to the proper and beneficial enjoyment of his property.

Goldstein v. Board of Mississippi Levee Commissioners, 140 So. 721.

The street was closed at the north line of the appellants' property, and ingress to and egress from the buildings was seriously interfered with, and the use of the street by the public for traveling and parking purposes was practically destroyed, and this constituted a taking of and damage to the property rights of the appellants which entitled them to compensation therefor.

Laurel v. Rowell, 84 Miss. 435, 36 So. 543; Funderbunk v. Mayor and Aldermen, 117 Miss. 173, 78 So. 1; Goldstein v. Board of Mississippi Levee Commissioners, 140 So. 721.

Where the finding of fact by the chancellor is against the great preponderance of the evidence, it is the duty of this court to substitute its judgment for that of the chancellor.

McCarty v. Love, 145 Miss. 330.

This court always proceeds slowly in reversing a chancellor on the facts. But the Constitution invests us with appellate equity jurisdiction, and, in reviewing this record, we do so as chancellors, charged with the solemn duty of requiring the proof to measure up to legal standards. If, according to our view of the facts and the promptings of our conscience, the learned chancellor was manifestly wrong, then it becomes our plain duty to set aside the decree of the court below and apply the legal test as we see it.

Gillis v. Smith, 114 Miss. 665.

H. P. Farish, of Greenville, for appellee.

The estimate of witnesses on values of land is not conclusive upon a judge or jury. The trier of the facts may bear all the testimony, together with the opinions of the witnesses as to the value, and therefrom fix the value upon its own judgment.

Leavenworth v. Board of Mississippi Levee Commissioners, 140 So. 518.

OPINION

Ethridge, P. J.

The appellants, Joe Duck Kwong, Chow Wai, and Joe Guay, doing business as Joe Gow Nue & Co., instituted proceedings before the levee damage commissioners of Washington County, Mississippi, for the assessment of damages alleged to have resulted from the enlargement of the Mississippi river levee in Greenville, Mississippi, adjacent to certain business property owned by them. The damage commissioners refused to award the appellants any damages, and they appealed to the chancery court, where the case was tried before the chancellor, who awarded them a decree for one' thousand dollars, from which decree the appellants have appealed on the ground that the damages so allowed are totally inadequate.

It appears from the testimony of the appellants that the stores involved and the lot on which situated were purchased in February, 1929, at and for the sum of fourteen thousand dollars cash, and that they had afterwards expended two thousand five hundred dollars in repairing the buildings. As a part of their purchase, the appellants acquired a perpetual easement to use an eighteen-foot alley which was the only entrance to the appellants' garage in the rear of the buildings. The front building faced thirty-one and a half feet on Washington avenue, and ran back one hundred twenty-nine and one-half feet on Walnut street. The back building faced twenty-two feet on Walnut street, and ran back a depth of seventy-five feet. At the time the appellant purchased the property, Walnut street was sixty-six feet wide, and was maintained by the city of Greenville. It extended five blocks north from its intersection with Washington avenue adjacent to appellants' buildings, in which five blocks there were fifty-five...