Mississippi State Highway Commission v. Calhoun

• Decision Date: 10 October 1966
• Docket Number: No. 44062,44062
• Citation: 190 So.2d 865
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. John C. CALHOUN et al.
• Court: Mississippi Supreme Court

Page 865

190 So.2d 865

MISSISSIPPI STATE HIGHWAY COMMISSION v. John C. CALHOUN et al.

No. 44062.

Supreme Court of Mississippi.

Oct. 10, 1966.

John H. Shands, Vaiden, for appellant.

Liston & Sumner, Winona, for appellees.

BRADY, Justice:

Appellant, Mississippi State Highway Commission, filed a petition to condemn for highway purposes two parcels of land containing 19.21 acres, more or less, in a special court of eminent domain of the Second Circuit Court District of Carroll County. On September 23, 1965, in that court, R. L. Rosamond presiding, the jury returned a verdict assessing the damages occasioned by the taking of the property of appellees in the sum of $16,500. The Highway Commission appealed to the circuit court, where the judgment of the special court of eminent domain was affirmed. From that judgment in favor of John C. Calhoun, et ux., Ura Maxine Calhoun, this appeal is prosecuted. The record discloses the following relevant facts.

Mr. and Mrs. Calhoun are the owners of a hundred acre farm, more or less, located a pproximately four miles southwest of the town of Vaiden, in Carroll Courty, Mississippi. The appellant condemned 18.79 acres of appellees' land for the right-of-way of U.S. Interstate Highway 55, and 0.42 acre for the improvement of a channel for water drainage purposes. Extending through appellees' land, the proposed highway right-of-way proceeds in a general north to south direction so that on the west side of the right-of-way 10.3 acres are severed, and on the east side of the right-of-way 70.9 acres remain.

The record clearly reveals that the appellees' property is highly developed for row crop operation and that the appellees are now using it in the most lucrative and productive manner. One of appellant's appraisers, T. I. Carroll, conceded that there were no sales of land which could be compared with appellees' land. Appellees used their land for the production of cotton, corn and soy beans. The proof in this case shows that appellees' farm is an imporved farm, and appellant's witness, Mr. Carroll, specified as to the improvements, listing Mr. Calhoun's house, another house and a tenant house, a two car garage, an equipment shed, a barn, butane gas system, wells and various other little outhouse buildings. All of these improvements were located on the west side of the proposed highway. There are no improvements on the tract of 70.9 acres east of the proposed new highway.

Appellant's witness, Mr. Carroll, further testified that of the 70.9 acres, appellees had 10.54 acres in wooded and open pasture land. It is evident that the appellees will not have access to the 70.9 acres of farm and pasture land except by utilizing Highway 35 at Vaiden, Mississippi. The record fails to indicate the exact distance that road is north of the 10.3 acres lying west of the proposed highway. The appellees will have to go under the new proposed Highway 55, utilizing the county road, in order to reach that portion of their land situated east of the highway, as was testified to by appellant's witness, W. C. Briggs, Assistant District Construction Engineer. There are no improvements on the 70.9 acres east of the highway which formerly could be utilized by the appellees in conjunction with the 10.3 acres where their home and all improvements are situated west of the proposed highway. Witness Carroll for the appellant estimated the damage occasined by the need for constructing fences to be $800 for a fence fifty-two hundred and some odd feet in length. He estimated the cost of having to construct a pond to be $200, and he valued the damage from splitting the land into two parcels to be $6,000; he estimated the value of the land taken to be $3,800, so that, together with the easement, Carroll's estimate of the damages was $10,875.

The record further discloses that the highway proper will extend completely through appellees' land, and that appellant will construct a fill 700 feet long which will extend through appellees' cotton land. The fill will vary from ground level to a height of 27 feet on the north end where the road leaves appellees' land. The width of the fill will vary, depending upon its height.

Between the two lanes carrying north and southbound traffic, there is a median which is used for drainage purposes. The record discloses also that a meandering creek on the south side of appellees' land is going to be straightened and that this will tend to precipitate water which will flood and deposit residue on appellees' land which also can cause erosion.

The appellant offered two witnesses who gave their opinions as to the fair market value of the land prior to the taking and the fair market value of the property remaining after the taking. Appellees offered four witnesses as to the value of the land, including the appellee, John C. Calhoun.

                                    Before    After
                  Witness           Taking   Taking        Damages
                For Appellant
                  T. I. Carroll     $41,500  $30,700        $10,875
                                                      (Includes $75 for
                                                       0.42 acre taken
                                                        for easement.)
                  Sidney Branch      23,800   17,595        6,205
                For Appellees
                  L. K. Moore, Jr.   40,915   24,590       16,325
                  Odell Leonard      34,000   14,000       20,000
                  D. B. Sanders      33,450   15,700       17,750
                  John C. Calhoun    35,000   15,000       20,000
                

All witnesses for the appellant and appellees used the before and after rule in reaching their estimates of the values of the land taken and the damages incident thereto. The jury viewed the premises and testimony was there taken.

After receiving istructions to which no objections were made, the jury returned a verdict in the sum of $16,500. Appellant filed a motion for a new trial, which was overruled.

There is but one issue in this cause, and that is whether or not the verdict of the jury is so grossly excessive as to evince bias, passion and prejudice. Appellant in his brief cites, in support of his contention that the verdict is so grossly excessive as to evince bias, passion and prejudice, the following five cases: Mississippi State Highway Commission v. Roche, 249 Miss. 792, 163 So.2d 874 (1961); Mississippi State Highway Commission v. Valentine, 239 Miss. 890, 124 So.2d 690 (1960); Mississippi State Highway Commission v. Stubbs, 239 Miss. 499, 124 So.2d 281 (1960); Mississippi State Highway Commission v. Ellzey, 237 Miss. 345, 114 So.2d 769 (1959); Mississippi State Highway Commission v. Trammell, 252 Miss. 413, 174 So.2d 359 (1965).

There same cases are cited by the appellant in Mississippi...