Mississippi State Highway Commission v. Wagley, 45583

• Decision Date: 09 February 1970
• Docket Number: No. 45583,45583
• Citation: 231 So.2d 507
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. Mrs. Cynthia J. WAGLEY.
• Court: Mississippi Supreme Court

Page 507

231 So.2d 507

MISSISSIPPI STATE HIGHWAY COMMISSION v. Mrs. Cynthia J. WAGLEY.

No. 45583.

Supreme Court of Mississippi.

Feb. 9, 1970.

Robert G. Nichols, Jr., Jackson, for appellant.

Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellee.

INZER, Justice:

This is an appeal by Mississippi State Highway Commission from a judgment of the Circuit Court of the First Judicial District of Hinds County awarding appellee, Mrs. Cynthia J. Wagley, $25,000 for the taking of .13 acres of her property for highway purposes.

Prior to these proceedings appellee was the owner of a tract of land in the City of Jackson located east of Terry Road, a main artery which runs in a north-south direction through the southern part of the City. It had a frontage of 125.6 feet on Terry Road and extended east for a distance of 234 feet. The property was unimproved and it was zoned as residential. On April 28, 1964, the commission filed condemnation proceedings in the County Court of Hinds County to condemn a strip on the west end of this property. The property condemned is in an irregular shape, being 125.6 feet east and west along the road and extending 46 feet east along the south boundary and 67.7 feet east along the north boundary. The commission also took the right of access to the remaining land over the north 69.8 feet along the highway, leaving access to the remaining land over 55.8 feet on the south end. A trial was had in the county court and the jury fixed appellee's damages at $5,500. The landowner appealed to the circuit court and that court reversed the judgment of the county court and ordered a new trial in circuit court as provided by law. The trial in circuit court resulted in a judgment in favor of appellee for $25,000, hence this appeal.

Appellant's assignments of error are as follows:

1. The Circuit Court of the First Judicial District of Hinds County, Mississippi, erred when it reversed the ruling of the County Court wherein the latter had denied appellee's motion for a new trial;

2. The verdict of the Circuit Court jury in awarding $25,000 as damages for the taking of 0.13 acres of Appellee's lands was so excessive as to shock the enlightened conscience.

The circuit court held that the evidence clearly established that although the property taken was zoned residential it should have been zoned commercial and that the verdict of the county court jury was so low as to be nearly confiscatory. The court concluded that the county court was in error in refusing to grant the landowner a new trial. The commission contends that the circuit court was in error because it did not say that the verdict of the jury in the county court was so low as to evidence bias, passion and prejudice on the part of the jury or was so grossly inadequate as to shock the enlightened conscience of the court. However, we gather from what the court did say that the verdict of the jury was so low that it was shocking to the enlightened conscience of that court. After a careful review of the evidence we cannot say that the circuit court was in error in reversing the judgment of the county court and granting a new trial.

The evidence in regard to appellee's damages was substantially the same in the county court and circuit court. The only witness for the commission who testified as to the value of the property taken and the resulting damage was T. L. Carraway, Jr., a qualified real estate appraiser. He fixed the value of the entire tract immediately prior to the taking at $7,500 and its value after the taking at $3,375. Mr. Carraway valued the property as residential and did not consider that its highest and best use was commercial. He gave as his reason for doing so the fact that it was zoned residential and only four years before the City Commission had denied an application by appellee to rezone the property commercial, and in his opinion a zoning change could not be expected in the near future.

Mr. J. H. Wells, a qualified real estate appraiser, testified for the landowner that in his opinion the highest and best use of the land immediately before the taking was for commercial purposes. It was his opinion that the fair market value of the property immediately before the taking was $30,000 and after the taking its value would be only $5,000, or a difference of $25,000. He stated that although the property was zoned residential, its highest and best use was commercial and he thought the zoning was subject to change.

Mr. Morris Williams, a qualified real estate appraiser, testified for appellee that the value of the property prior to the taking was $31,000 and its value after the taking was $7,000 or a damage of $24,000. He valued the property as commercial because that was its highest and best use.

Mrs. Wagley testified that in her opinion prior to the taking the property was...