Mississippi State Highway Com'n v. Gilich
| Decision Date | 05 August 1992 |
| Docket Number | No. 07-CC-59605,07-CC-59605 |
| Citation | 609 So.2d 367 |
| Parties | MISSISSIPPI STATE HIGHWAY COMMISSION v. Andrew GILICH, Sr. and Jacobina Gilich. |
| Court | Mississippi Supreme Court |
Hugh D. Keating, Dukes Dukes Keating & Faneca, Gulfport, for appellant.
James K. Wetzel, Wendy Allard, Gulfport, for appellee.
Michael C. Moore, Atty. Gen., Wilson H. Carroll, Sp. Asst. Atty. Gen., James O. Nelson, II, Jackson, Betsy E. Walker, Virgil G. Gillespie, Gerald H. Blessey, Gillespie & Blessey, Biloxi, for amicus curiae.
Before HAWKINS, P.J., and SULLIVAN and BANKS, JJ.
BANKS, Justice, for the Court:
I
Here we are asked to determine ownership interests in a portion of what was once billed as the "longest man-made beach in the world." Inverse condemnation 1 is at issue in this litigation wherein the Mississippi State Highway Commission (Commission or defendant) appeals an adverse judgment of the Harrison County Circuit Court in favor of Andrew M. Gilich, Sr. and Jacobina Sekul Gilich (Giliches or plaintiffs) for damages resulting from the taking and damaging of their property by virtue of the construction of the Interstate 10 (I-10) interchange with U.S. Highway 90. Finding error, we reverse.
II
The proceedings leading to this Court began on November 4, 1986, when the Giliches filed a complaint against the Commission, alleging that they owned and possessed Lot 20 of Gulf View Property. 2 As They claimed that the property north of the highway, though not physically taken, suffered damages from the raising of the loop. Specifically, the view from the property which housed an apartment building was obstructed and access to the beach from the property, adversely affected. These two things combined, they contend, diminished the value of the property.
described in the deed, the Gilich property was located north of Highway 90 and extended to the water's edge of the Gulf of Mexico. The plaintiffs claimed that in 1984 and 1985, the Commission proposed and began building a project known as the "I-110 loop," which was to run south from the I-10 corridor, loop over the Gulf of Mexico, and connect I-10 with the Highway 90 System in Biloxi, Mississippi. They contended that the southernmost part of their property, which was comprised mainly of a sand beach that extended to the water's edge, was taken by the Commission without compensation in contravention of Miss.Code Ann. Sec. 43-37-1 et seq. (Supp.1991), 3 and Section 17 of the Mississippi Constitution of 1890. 4 In addition, the Giliches alleged that the building of the loop resulted in a wrongful taking of their riparian and littoral rights. 5
The Commission took the position that the sand beach lying south of the highway was land held in public trust and that the taking of littoral rights was non-compensable. It denied that the plaintiffs were entitled to any damages, claiming instead that the Giliches do not enjoy any rights to the property south of the highway separate and distinct from the rights of the public.
Prior to trial, the Commission filed a "Motion in Limine" seeking to exclude evidence relating to damages allegedly resulting from loss of view due to construction of the loop "on any property which did not include or abut the property owned by the plaintiffs." The court denied the motion.
Trial ensued and the jury returned a verdict favorable to the Giliches awarding them $35,000.00 in compensatory damages. In addition, the court ordered that the Commission pay attorneys fees and the expenses in the amount of $18,510.97. Final judgment awarding $53,510.97 to the Giliches was entered on February 26, 1988. The Commission filed the usual post-trial motions. This appeal was taken after the motions were overruled.
III
Testimony during trial established that Andrew Gilich (Andrew) and his wife, Jacobina Gilich (Jacobina), owned and operated the Imperial Terrace Apartment Complex located at the corner of Seal Avenue and Highway 90 in Biloxi, Mississippi. At the time of trial, all of the apartments, save one, were occupied and rented for $250.00 a month. 6
Jacobina, purchased the land on which the complex was located on July 5, 1945, described as follows:
Lot 20 of the Gulf View Property, as per plat thereof on file in Book 2, Page 11 of On September 8, 1964, she deeded the property to herself and Andrew, jointly.
the Record of Plats in the Office of the Chancery Clerk of Harrison County, Mississippi; except the North 70 feet thereof. Said Property being bounded on the North by property formerly of Smyly, on the East by Seal Avenue, on the South by the Gulf of Mexico, on the West by the property formerly of White; being the same property conveyed to C.L. Smallwood by Wilber R. Dove and wife, by warranty deed dated January 6, 1930, recorded in Book 184, Page 345 of the Deed Records of Harrison C County, Mississippi.
He testified he understood the deed description to mean that he owned the property south of Highway 90. The first time he was told that he did not own the property south of the highway was when he sued the Commission. He testified that he paid taxes on the south side of the property and had not been notified by anyone from the tax assessor's office or the city of Biloxi that the taxes he paid did not include the property south of Highway 90. Andrew stated that he and Jacobina gave their tenants permission to use the sand beach portion of the property. He and his wife also personally enjoyed the beach and at one time considered building a pier.
Andrew recalled that in 1952, Harrison County authorized the pumping of sand on the property south of the highway. He could not locate with certainty the waters edge prior to that time. Jacobina later testified that she did not know who pumped in the sand to make the beach but that someone did. No one from the county asked his permission to pump the sand. In the following year, he and Jacobina gave a right-of-way easement to the state highway department for that part of Lot 20 which lay south of the north-edge of the sidewalk. The department paid two dollars for the easement.
Prior to construction of the loop, no person or group came to Mr. Gilich about this particular plan and asked him about buying a right-of-way or easement to go across the sand beach portion of his property or purchasing his riparian rights. He was never asked by any person or group to use the beach property in front of his complex; neither was he compensated for such use.
Andrew did not attend any hearings proposed by the Commission or any other group on behalf of the Commission. He and his wife, however, conveyed their objections to the construction to their city councilman.
Andrew personally observed the construction of the loop from the apartment complex. When the loop was constructed, the contractors removed part of the seawall that separated the beach from the highway and replaced it with a retainer wall, thirty-two inches high from ground level. Andrew stated that if he walked due south of the apartment complex, to the retainer wall he would have to walk 600 feet down the wall before he could get to the sand without scaling the wall. Before the loop, there was no such obstruction. According to Andrew, prior to construction of the loop, each of the apartments had an angled view of the water; now the view from the apartments has been obstructed by the loop.
Jim Wetzel, Sr., tax assessor for Harrison County and son of the plaintiffs and father of their lawyer testified that he had been tax assessor for sixteen years. In that capacity, he kept true values of the property located in the county. He explained to the jury that he determined that an individual owning property fronting Highway 90 owned littoral rights by reading the deeds.
Wetzel was asked to express an opinion of the true value of the sand beach portion of the property based upon his education and experience in the field of appraising land. Counsel objected on the ground that the proper predicate for this type of testimony had not been established. Wetzel had not been offered as or qualified as an expert on land values. The court overruled the objection and allowed Wetzel to testify as an expert based upon his training and his experience in the field of appraisals. Wetzel stated that the beach property was Wetzel stated that he had personally observed and inspected the loop and the barrier rail. The barrier wall prohibits the Giliches and their tenants from gaining direct access to the beach property. Wetzel testified that the Giliches and their renters would have to walk "almost two city blocks before [they] could get around that so-called barrier." Based upon his personal observations, education and experience in the field of real estate appraisals, Wetzel stated that the property south of the highway had a present value substantially less than its true value of $45,000.00 before construction. He stated,
worth $45,000.00 based on $500 to $600 per foot for a total of 75 square feet.
I would say that there is no value left on that property as of the 1st of January of 1988 due to the fact that you have a highway there now. It's non-accessible.
Out of the jury's presence, defense counsel made the following objection:
Comes now the Mississippi State Highway Commission and moves this Court on motion ore tenus to exclude the testimony of Jim Wetzel, Sr. related in any part to real estate values of the subject property or the property south of U.S. Highway 90 for the reason that the witness has failed in his testimony to provide adequate basis for his opinion of value. Particularly, counsel for the plaintiff did not tender the witness as an expert in real estate and I did not stipulate to him being allowed to testify as an expert on real estate values.
* * * * * *
In his measure of damages he did not use the proper approach as the before and after rule. He did not value the whole property before the alleged taking and then the whole property after...
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