Mississippi State Highway Commission v. Hemphill, 43556

• Decision Date: 14 June 1965
• Docket Number: No. 43556,43556
• Citation: 176 So.2d 282,253 Miss. 507
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. Vassar D. HEMPHILL, Jr., and M. Simpson Hemphill.
• Court: Mississippi Supreme Court

Page 282

176 So.2d 282

253 Miss. 507

MISSISSIPPI STATE HIGHWAY COMMISSION v. Vassar D. HEMPHILL, Jr., and M. Simpson Hemphill.

No. 43556.

Supreme Court of Mississippi.

June 14, 1965.

Black & Boykin, Carrollton, for appellant.

Brewer, Deaton & Evans, Greenwood, for appellees.

ETHRIDGE, Presiding Justice:

This is a suit seeking damages under Mississippi Constitution section 17 (1890) for the taking by the Mississippi State Highway Commission, defendant below and appellant here, of an easement for highway purposes. Vassar D. Hemphill, Jr. and M. Simpson Hemphill, appellee, brought this action in the Chancery Court of Carroll County for damages to their executory interest in the tract. Since they initiated it, they have the burden of proving the value of their interest taken and damaged. The chancery court undertook to fix the damages to the executory interest and to place that amount in trust with the court clerk. We reverse and remand, because there was no adequate evidence of damages under the established before and after rule and at the time of taking, which was several years before the trial. We further hold that under the peculiar circumstances here, where owners of the present defeasible fee estate executed a warranty deed to the commission, and the future interest owners made an indemnity agreement with them, it will be necessary to ascertain the cash value of the future interest as well as the entire estate at the time of taking, in order to determine whether complainants have been damaged.

This case is a sequal to Hemphill v. Mississppi State Highway Commission, 245 Miss. 33, 145 So.2d 455 (1962). Comment, 34 Miss.L.J. 346 (1963). Many of the pertinent facts were reviewed in that opinion. Mrs. Ida Martin Hemphill died in 1952, leaving a holographic will. It was held that the effect of this testament was to devise in fee simple the home place to her son, Everett Hemphill; but, if he dies before his wife (Myrtis), then to her until her remarriage or death, whichever is earlier, with remainder to Vassar, Jr. and Simpson, testatrix's grandchildren and complainants-appellees. The effect of the will was to devise to Vassar and Simpson an executory interest, not a vested or contingent remainder. Everett had a defeasible fee. The future interest was of a sufficiently substantial character to be given the protection of Mississippi Constitution section 17, providing that private property shall not be taken or damaged for public use, except on compensation being made to the owner. The executory interest of Vassar and Simpson was not tenuous but of a substantial nature, with the uncertainty lying only in the event upon which the defeasible fee, in Everett, would end. Hence the first Hemphill case held that the owner of a future interest must show that he owns a compensable interest in the condemned property. Appellees met this test. Secondly, appellees must show that the interest is capable of evaluation. The first Hemphill opinion did not consider that issue, but remanded for further procedings 'to determine the value, if any, of appellants' executory interest taken and allegedly damaged by the Commission.' No specific method of evaluation of the future interest and damages was prescribed.

The 'home place' contained 120 acres. The highway right of way across it consisted of 3.14 acres. On this land there was a residence, not taken, and other improvement. The chancery court found total damages to the entire estate in the amount of $2,881. The evidence is wholly insufficient to support that finding, for two reasons:

(1) Where part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking. Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565 (1940). Complainants, with the burden of proof as to damages, did not offer evidence under the before and after rule. Moreover, most of the evidence by complainants was on asserted specific damages to particular items, such as fences, water line easement, tenant house, the 3.14 acres actually taken. This was not related to the overall before and after test. Further, the trial court admitted over objection evidence of the sentimental value of the property, which can have no part in determining the market value before and after taking. Mississippi State Highway Comm. v. Windham, 241 Miss. 1, 128 So.2d 577 (1961); Mississippi State Highway Comm. v. Ratcliffe, 171 So.2d 356 (Miss.1965); 18 Am.Jur. Eminent Domain Sec. 242 (1938).

(2) Damages in taking for public use are assessed as of the time of the taking. Mississippi State Highway Comm. v. Stout, 242 Miss. 208, 134 So.2d 467 (1961); Pearl River Valley Water Supply District v. Wood, 172 So.2d 196, 205 (Miss.1965). Complainants' evidence pertained to values as of the time of trial in 1964. The taking was in 1960. Moreover, this evidence showed there had been a tremendous increase in values between the time of taking and time of trial. The decree referred to the 'present' value and 'present' damages. All of this was reversible error.

In short, the evidence as to damages to the entire estate taken, and the future interest, was erroneous in nature and insufficient to support the decree. It did not follow the before and after rule, and was directed not to the time of taking, but to the time of trial almost four years thereafter. Accordingly, the decree must be reversed for these errors. See Mississippi State Highway Comm v. Ulmer, 171 So.2d 126 (Miss.1965).

The first step in determining damages, if any, to appellees' future interest is to determine the overall damages to the entire estate resulting from the taking by the commission. This case is being reversed for errors in making such overall determination of damages. The next problem is to determine what portion of properly ascertained damages to the entire estate is attributable to damages, if any, to the future interest of Vassar and Everett. On March 17, 1960, Everett, owner of the defeasible fee, and his wife Myrtis executed a warranty deed to the commission of an easement across the land. The consideration paid was $1,575, after deducting (by agreement with Everett) $200 from the purchase price with the understanding Everett could have the tenant house on the right of way. Thus the gross consideration paid by the commission for the warranty deed was $1,775. That deed recited that it was in full payment and settlement of all claims or demands for damages accruing to the grantors because of construction of the proposed highway.

After this suit was begun, Everett, Myrtis, and the appellees Vassar and Simpson, executed a contract reciting that Everett and Myrtis had given the deed to the commission. Appellees agreed to 'save and hold harmless' Everett and Myrtis from all liability to the commission growing out of the deed to the right of way. The contract stated that it was the intention that Everett and Myrtis 'shall suffer no loss or liability by reason of said conveyance and the contest' in the present suit by appellees. They agreed to divide proceeds of sales of gravel and timber by one-third to Everett and Myrtis, one-third to Vassar and...