Mississippi State Highway Commission v. Rogers

• Decision Date: 11 December 1961
• Docket Number: No. 42176,42176
• Citation: 136 So.2d 216,242 Miss. 439
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. C. B. ROGERS.
• Court: Mississippi Supreme Court

Page 216

136 So.2d 216

242 Miss. 439

MISSISSIPPI STATE HIGHWAY COMMISSION v. C. B. ROGERS.

No. 42176.

Supreme Court of Mississippi.

Dec. 11, 1961.

Welch, Gibbes & Graves, Laurel, for appellant.

James D. Hester, George, Maxey, Laurel, for appellee.

McELROY, Justice.

This is the third appeal of this case to this Court. The judgment rendered on the first trial was reversed in Mississippi State Highway Commission v. Rogers, 236 Miss. 800, 112 So.2d 250, and a new trial granted on questions of law. Previous trials of this case resulted in jury verdicts of $120,000, $122,500, $100,000 and this verdict of $117,500. In one of the trials in the circuit court the learned judge entered a remittitur which was not acceptable to the appellants.

The facts are set out rather fully in the opinions in the former appeals and will not be repeated here. The witnesses seem to be the same in all of the cases.

In the case of Mississippi State Highway Commission v. Rogers, Miss., 128 So.2d 353, 360, the Court granted a new trial for a change of venue and also in reference to the evidence of Dick Warren. The Court also held 'that the opinion of any competent witness is admissible in an eminent domain trial, in order to assist but not control the judgment of the jury, in determining the value of land which is to be taken; but 'such opinions should be admitted only when given by persons acquainted with the particular land and who have knowledge of the value thereof." It was also said 'in determining the damage to land not taken, a witness must be familiar with the market value before the injury was inflicted and the market value afterward, and estimates of percentage of value lost, not based upon some substantial ground, should be excluded' inferring that the other witnesses on behalf of the appellee were competent to testify. In this case Dick Warren did not testify. In all of the cases the other witnesses for the appellee met the qualifications as to competency. Their competency was gone into in the previous trials.

The witnesses for the appellant, J. Ed Turner, Leon T. Rogers, Jr., and Clarence A. Boone testified that in their opinion the land in question had a fair market value of $27,500 before the taking and a fair market value of $5,400 after the taking, leaving the damages at $22,100.

The three witnesses testifying for the appellee, James Reeves, John Blackledge and Dewey Blackledge, gave the following values:

                Witness                Before      After      Damages
                -----------------------------------------------------
                James Reeves      $123,300.00  $4,100.00  $119,200.00
                John Blackledge   $137,345.00  $7,300.00  $130,045.00
                Dewey Blackledge  $126,000.00  $5,000.00  $121,000.00
                

The assignments of error are: (1) That the lower court erred in refusing to exclude the testimony of the above witnesses on behalf of the appellee; (2) That the verdict of the jury is not based on any evidence and is against the overwhelming weight of the evidence; (3) That the lower court erred in admitting damages to the appellee in the cost of moving personal property and (4) That the verdict is so excessive as to be shocking to the conscience and to evince bias, passion and prejudice on the part of the jury.

The competency of the witnesses for the appellee was passed on in the former cases, and we believe that their competency was fully proved in this case.

We believe the question of evidence of alleged damages to appellee in the cost of moving personal property is competent in this case. The appellant had obtained an order in this Court granting a mandatory injunction requiring the appellee to remove his property from the right of way under a penalty of contempt if not complied with. The appellee offered testimony to the effect that in complying with this order of the Court he had removed 2,803 automobiles from three acres of land and stacked them up on one acre of land and that this cost was estimated to be $14,000. The amount may be exaggerated. However, he certainly had a right to testify as to what it cost him when he introduced bills substantiating his testimony.

The Mississippi Constitution, Sec. 17 states: 'Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public.' Section 2760, Miss.Code 1942, states: 'The defendant is entitled to due compensation, not only for the value of the property to be actually taken as specified in the application, but also for damages, if any, which may result to him as a consequence of the taking; * * *.' This is a part of the instruction that the statute lays out in eminent domain proceedings and therefore it is binding on the court.

In Baker v. Mississippi State Highway Comm., 204 Miss. 166, 37 So.2d 169, 170, the Court held:

'It is settled that in eminent domain proceedings the measure of damage to the property not actually taken is the difference between the fair market value of such property before, as compared to such value after, the taking. State Highway Commission v. Day, 181 Miss. 708, 180 So. 794; Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Commission v. Treas et al., 197 Miss. 670, 20 So.2d 475. It is pointed out that there may be exceptional conditions where this rule would not be a proper test, as, for instance, where plaintiff sued for damage to his business resulting from enlargement of the Mississippi Levee, which occasioned the removal of fifty families from the neighborhood of his business, (Kwong et al. v. Board of Mississippi Levee Commissioners, 164 Miss. 250, 144 So. 693), or where the remaining lot was worth more without the damaged or destroyed house thereon. Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250. Other unusual conditions, where the before and after values test would not be applicable, might be cited. In these exceptional cases all that can be done is to apply thereto a rule supported by...