Mississippi Power Co. v. Walters
| Decision Date | 20 November 1967 |
| Docket Number | No. 44593,44593 |
| Citation | 204 So.2d 471 |
| Parties | MISSISSIPPI POWER COMPANY v. A. Floyd WALTERS and Maggie T. Walters. |
| Court | Mississippi Supreme Court |
Deavours & Hilbun, Laurel, for appellant.
Pack & Ratcliff, Laurel, for appellee.
This eminent domain proceeding to condemn a right-of-way through the lands of appellees in order to construct power transmission lines was brought in the First Circuit Court District of Jones County, Mississippi. From a verdict and judgment in the amount of $13,000 returned in the county court and affirmed by the circuit court this appeal is prosecuted.
The appellees are the owners of approximately 204 acres of land which is used principally as pasture land for growing timber. There are improvements on the property which will not be disturbed or taken by the condemnation. The right-of-way which condemnor seeks is one hundred and twenty-five feet in width and approximately two thousand feet in length running diagonally across the north third of appellees' property. This right-of-way is necessary for the construction of an electrical transmission distribution line. Also sought to be condemned by the appellant is the right to cut and keep clear danger trees beyond the right-of-way. Danger trees are defined as those which, in falling directly toward the power lines, would strike or come within five feet of striking any structure or conductor.
The right-of-way comprises approximately 7.4 acres, of which one and a half to two acres are in permanent pasture and the remainder is in cutover timber lands, the last cutting having been in about 1932. The entire one hundred twenty-five foot right-of-way will be cleared of standing timber and will be kept clear. Two construction towers will be located on the land of appellees and the height of the overhead conductors or wires will have a minimum height for clearance of at least thirty-six feet. The appellees are denied the right to grow timber on the right-of-way but they are granted any reasonable use of the land not inconsistent with the rights of the condemnor, including the growing of row crops and pasture, with ingress and egress. Timber on the right-of-way, if not removed by appellees before clearing, will be cut and left on the right-of-way for salvage by appellees if they so desire. The present danger trees and those which later become danger trees will be cut by appellant if not cut by appellees. There trees extend beyond the right-of-way variable distances, depending upon the height of the trees.
The first error urged is that the verdict of the jury is so excessive as to evince bias, passion and prejudice on the part of the jury and shocks the englishtened conscience. The other errors relate to the overruling by the trial court of appellant's motion to exclude the testimony of appellees and their three witnesses.
It is obvious that between the damages estimated by appellees' witnesses and appellant's witnesses there is a great gulf of Lazarian proportions over which this Court is unable to pass. For this reason, it becomes necessary to consider the nature, adequacy and worth of all testimony offered by the litigants with reference to the damages sustained by appellees as a result of the easement taken by appellant. The following table shows the values placed on the Walters' property by each of the six witnesses who testified, and also shows the damages estimated by each of these witnesses.
Though Mr. Adamson fixed damages at $1,750, he was unable to say what portion of the $1,750 was attributable to the power transmission line being placed on the land, what part was attributable to the timber on the right-of-way, or what part was attributable to the danger trees which would have to be felled outside the right-of-way. In determining the values before and after the taking, this witness was wholly unable to specify a particular amount on any item so that the jury could evaluate his testimony.
Mr. James Vardaman, a consultant forester and author of Tree Farm Business Management, testified that he had extensive experience in buying, selling and caring for farm and timber lands in Mississippi, but he could not remember buying any land in Jones County within the last three years. Although he assessed the damages at $1,716, he was uanble to 'breakdown' his estimates to show what factors he took into consideration in reaching that amount. He did not count trees to be cut on the right-of-way or place any value on them and did not estimate the amount of pulpwood. He placed no specific valuation on the 7.4 acres taken for the easement on a per acre basis or as a whole. He did not know the number of danger trees to be felled and placed no valuation on them. Although an expert farm manager, his testimony as to the before and after values is vague and indefinite in that no reason could be given by him concerning how he determined the values.
In setting his damages at $18,000 the appellee Floyd Walters, who was the ablest witness to testify, reasoned that instead of 7.4 acres the condemnors were getting 16 acres, the area in which he says he will be denied the future right to cut timber. However, this reasoning was refuted by the appellant Power Company. Mr. Walters placed a value of $5,432 on the timber, which he said involved only logs. He placed no separate value on the danger trees. He did take into consideration one thousand small trees which he valued at $5,000 at the present time. He asserted future damages due to the fact that the trees would grow and, in his estimation, ultimately would be worth $100 per tree twenty years from now. In considering the timber which he would lose, the appellee stated that on the north side of a road running through his property which is traversed by the right-of-way there were 246 trees that averaged 253 feet, giving him a total of 50,653 feet of lumber. On the south side he would lose 274 trees averaging 212 feet, with a loss of 58,131 feet of lumber. Mr. Walters stated that he did not consider any pulpwood and he considered no tree under eight inches breast high in his estimate. While it is probable that the...
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