Louisville, New Orleans & Texas Railroad Co. v. Hopson
| Decision Date | 13 April 1896 |
| Citation | 73 Miss. 773,19 So. 718 |
| Parties | LOUISVILLE, NEW ORLEANS & TEXAS RAILROAD CO. v. J. B. & M. P. HOPSON |
| Court | Mississippi Supreme Court |
March 1896
FROM the chancery court of Coahoma county HON. A. H. LONGINO Chancellor.
This is an appeal from the verdict of a jury assessing damages, on a proceeding inaugurated by the appellees for the condemnation of the right of way through their own plantation, under the charter of the New Orleans, Baton Rouge, Vicksburg & Memphis Short Line Railroad Co. Acts 1882, § 2, p. 920.
The case was previously in the supreme court, on the appeal of the present appellees. 71 Miss. 503. It was reversed on grounds not affecting the questions involved in the present appeal, and remanded for further proceedings. The original petition was filed by the appellees in March, 1891. The commissioners, under the statute, had found $ 5, 000 damages in May, 1891, and the railway company had appealed to the next regular term of the chancery court thereafter, and demanded a jury, as provided by the statute, which resulted in the verdict from which the former appeal was taken. When the cause was remanded for further proceedings, as before stated, another trial was had in the chancery court on May 21, 1895, and this trial resulted in a verdict against the railroad company for $ 1, 091.33, from which this appeal is prosecuted. The opinion contains so much of the charter as relates to the question before the court.
Affirmed.
Mayes & Harris, for the appellant.
1. The statute fixes the basis upon which the verdict shall be returned, and, in express terms, provides that the jury shall exclude from their consideration any increase in valuation incident to the building of the railroad, and that, in estimating the damages, they shall consider the land as if the railroad were nonexistent.
The court below, on the other hand, instructed the jury that they should fix a value, to be ascertained by computing the value of the lands as a whole on May 11, 1891, which was eight years after the construction of the road, diminished by the market value of the place, as decreased by the taking of that part of it which was taken and by its intersection by the road; and, having given the jury this basis of calculation to start with, concluded the instruction by expressly informing them that no deduction from such sum should be made for any supposed benefit to plaintiff's farm, arising from the construction of said railroad.
It seems clear that, in telling the jury they were not to exclude that benefit or increment of value from their computation, the statute is directly violated. It was clearly the intention of the legislature, in passing this charter in aid of the railroad through the Mississippi delta (a perilous and uncertain venture), to allow them to have their rights of way, which it was supposed would result in developing an uninviting and inaccessible country, without being called on to bear the additional burden of paying for the increased valuation which the construction of the road would bring about.
It is especially important to consider, in connection with these propositions, the fact that the charter itself gives, not only to the railroad company the right to inaugurate these condemnation proceedings, but also to the landowner himself. It was clearly intended that the landowner, being placed in a situation where he could, at any time he might see proper have a jury impaneled, to assess his damages, and that, not being to any extent dependent in that respect upon the pleasure of the company, he would not be allowed to delay the matter for years, and then reap from his own delay the benefit of a measure of damages higher and greater than that which would have existed had he moved promptly. We do not advert to these considerations as substantive ground of the claim of error, but only as aiding and enforcing the statute itself, which expressly declares that the measure of damages shall be on the basis as if the road had not been built.
2. This statute is not obnoxious to § 10, art. 1, const. 1869, for while the constitutional requirement prevents the landowner from being compensated by such resultant benefits as may accrue to his land not taken, does not, on the other hand, entitle him to receive as compensation for his land that is taken, the increment of value which is or will be occasioned by the building of the road. That is a very different proposition. The measure of damages fixed by the charter is not unusual. It is exactly that which obtains in several of the states. Railroad Co. v. Elliott, 5 Nev., 358; Railroad Co. v. Tyree, 7 W.Va., 693; Railroad Co. v. Turner, 9 Leigh, 313.
However that may be, the appellees having elected to proceed under the charter, must be treated as waiving any constitutional quarrel they might have had with its provisions. T...
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