Mississippi State Highway Com'n v. Viverette, 57824

• Decision Date: 20 July 1988
• Docket Number: No. 57824,57824
• Citation: 529 So.2d 896
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. E.S. VIVERETTE.
• Court: Mississippi Supreme Court

Page 896

529 So.2d 896

MISSISSIPPI STATE HIGHWAY COMMISSION v. E.S. VIVERETTE.

No. 57824.

Supreme Court of Mississippi.

July 20, 1988.

John M. Huff, Forest, Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Kenneth S. Crawford, Sr., Asst. Atty. Gen., Jackson, for appellant.

Jerry L. Bustin, Forest, for appellee.

Before PRATHER, ROBERTSON and ZUCCARO, JJ.

ROBERTSON, Justice, for the Court:

I.

This is an eminent domain case arising out of a highway relocation project in rural Scott County, Mississippi. The Highway Commission is taking a thirty foot strip across the frontage of landowner's property, some one-fourth of an acre in the aggregate. The jury awarded $10,000.00 in compensation to the landowner. This is simply too much, given the facts of this case. We reverse and remand for a new trial.

II.

Prior to August 7, 1985, E.S. Viverette owned a parcel of land approximately 9.85 acres in size fronting on State Highway 21 in Scott County, Mississippi. Viverette had purchased the property from Rex Dolan in September of 1982 paying $15,000.00. Viverette had done some clearing and fencing but no construction of any kind.

On August 7, 1985, the Mississippi State Highway Commission (MSHC) commenced these eminent domain proceedings by filing its application in the Circuit Court of Scott County, Mississippi. The taking is described as a thirty foot strip across the eastern right-of-way of Highway 21 being a distance of 347.7 feet in width, some 0.24 acres in size.

MSHC's initial statement of value filed November 22, 1985, suggested the fair market value of the property condemned at $375.00, plus damages to the remainder at $1,725.00, for a total compensation and damage due of $2,100.00. Miss.Code Ann. Sec. 11-27-7 (1972). The damages to the remainder were largely attributable to the destruction of a tier-beam wood and metal fence with a steel wedged archway which had been placed across the highway frontage by Viverette's predecessor in title, Rex Dolan.

While the case was pending, a highway department civil engineer, Franklin A. Greer, Jr., surveyed the property and determined that all except a 30 foot strip of the fence was located on the preexisting highway right-of-way. Accordingly, on February 20, 1986, MSHC filed an amended statement of values declaring damage to the remainder as only $450.00, reducing the total compensation and damage due Viverette to $825.00.

On the eve of trial, Viverette filed his statement of values, alleging that he was due $4,950.00. This figure was composed of a $500.00 fair market value placed on the quarter of an acre being condemned--computed at the rate of $2,000.00 per acre. Viverette said that the damages to the remainder amounted to $4,450.00.

The case was called for trial on Tuesday, August 5, 1986. The evidence regarding the fair market value of Viverette's property was not seriously disputed. Jay Dilmore, the MSHC appraiser, testified that in his opinion the fair market value of the property was $1500.00 per acre or $375.00 for the quarter acre being taken. Scott Palmer, landowner's appraiser, offered his opinion that the fair market value was $2,000.00 per acre, yielding a $500.00 fair market value of the land taken. Both appraisers agreed that the highest and best use of the property was residential and both agreed that the comparable sales or market data approach to value was the preferable approach to use in this case. In short, on the question of the value of the land taken, there was hardly enough difference to make such a federal case out of this.

On the question of damages to the remainder, Palmer testified for Viverette that taking the thirty foot strip would destroy a potential homesite because of the location of a pond at the rear of the potential homesite. He put this damage at $2,000.00. Palmer attempted to testify about damage to the fence, but this was excluded--and no cross-appeal has been taken. In the end, Palmer testified that the value of the property before the taking was $24,200.00 and that the value after the taking was $21,700.00, yielding a total damage payable to Viverette of $2,500.00.

Viverette testified in his own behalf and estimated the value of his land at $35,000.00. He too said that a two-acre homesite had been lost as a result of the taking and he attempted to value this loss at $3,000.00 per acre for 6,000.00 damages, only to have MSHC's objection sustained. He claimed $5,000.00 to replace the fence and $2,000.00 for the destruction of trees. Suffice it to say that there is little if anything in the record to support or lend credibility to the values testified to by Viverette.

MSHC real estate valuation expert, Jay Dilmore, offered his opinion that the value of the Viverette tract before the taking was $15,225.00 and that its value after the taking was $14,400.00 for a net compensation due of $825.00. The differences between Dilmore's opinion and Palmer's was that Dilmore concluded that the value of the land per acre was $1500.00 as compared to Palmer's higher $2,000 per acre fair market value, and Dilmore proceeded on the assumption that only thirty-one feet of the rail fence with two strands of barbed wire were on Viverette's property--the remainder being on the highway right-of-way.

Greer, the MSHC surveyor, testified regarding the location of the fence and gave his opinion that most of it was already on the highway right-of-way. Greer's view was strongly attacked by landowner. No competent counter proof, however, was offered on the subject, a point about which we will say more later.

In this state of the proof, the matter went to the jury who returned a verdict fixing the compensation and damages due Viverette at $10,000.00. Judgment was entered thereon on August 22, 1986.

MSHC timely moved for a new trial charging, inter alia, that the verdict was contrary to the weight of the evidence and grossly excessive and evincing bias, passion and prejudice and, further, that the verdict exceeded the statement of values filed by Viverette. After a hearing thereon, the motion was overruled. MSHC now prosecutes this appeal charging error on the overruling of its motion for a new trial.

III.

MSHC first argues that the Circuit Court erred when it allowed the $10,000.00 verdict to stand in the face of landowner's $4,950.00 statement of values filed August 4, 1986. ¹ MSHC argues that a landowner is bound by his statement of values and may not recover compensation in excess thereof.

Miss.Code Ann. Sec. 11-27-7 (1972) requires that both MSHC and the landowner file separate statements of values and provides further that the statement of value shall

constitute the pleadings of the parties with respect to the issue of value, and shall be treated as pleadings are treated in civil cases in the circuit court.

Since the statute was enacted, however, the office of pleadings in our civil practice has changed--and has been diminished. See Stanton & Associates, Inc. v. Bryant Construction Co., 464 So.2d 499, 505 (Miss.1985). Our case law construing Section 11-27-7 by and large lies before January 1, 1982, and the advent of the new view of pleadings.

For example, in Coleman v. Mississippi State Highway Commission, 289 So.2d 918 (Miss.1974), the Court noted that prior to the enactment of Section 11-27-7, the pleadings were few in eminent domain cases. The Court stated,

In many instances this scarcity left both the condemnor and the condemnee in a dilemma as to the values which would be elicited from the witnesses in the cause, the situation lending itself to a swearing contest without value limitations.... One of the purposes of the enactment of [11-27-7] was to eliminate this quandary.

Coleman v. Mississippi State Highway Commission, supra, at 920.

Amendments were allowable but not where they would operate to the prejudice of the condemnor. See Coleman, supra, and Mississippi State Highway Commission v. Amos, 319 So.2d 231 (Miss.1975). In Tysons, Inc. v. Mississippi State Highway Commission, 367 So.2d 939 (Miss.1979), the Court took a strict view of the office of pleadings and found a fatal variance between the Highway Commission's statement of values, and its proof, where the Commission's appraiser testified that the landowner's damages were less than those claimed in its statement of value. There was no reason on principle why, under the Tyson view, the landowner should not have been similarly bound.

The word "pleadings" in Section 11-27-7 takes it meaning today from the view and function of pleadings as embodied in the Mississippi Rules of Civil Procedure. Our long post-1982 expression authorizes the condemnor to amend quite radically its original statement of value. State Highway Commission of Mississippi v. McDonald's Corp., 509 So.2d 856, 863 (Miss.1987). Even post-January 1, 1982, the statements of value--as pleadings--frame the issue on the question of compensation due. Before either party may complain of variances therefrom, timely objection must be tendered when the opposition seeks to exceed the statement of values. Failure of objection results in waiver of the point, as is the case with other pleadings and where issues not properly pled may be regarded as tried by consent. See Norris v. Norris, 498 So.2d 809, 812 (Miss.1986); Johnson v. Franklin, 481 So.2d 812, 815 n. 4 (Miss.1985).

In today's case there was no violation of the statement of values in the testimony of landowner Viverette's first two witnesses, Rex Dolan, his predecessor in title, and valuation expert Palmer. The latter originally attempted to offer a before and after compensation value of $4,950.00.

The only remote suggestion in this record that Viverette is due more than the $4950.00 figure on his statement of values came in his own testimony where he first said his property was worth $35,000.00 before the taking and then began to itemize deductions to establish the after value. But when Viverette offered opinion that two of his acres had been rendered...