Mississippi State Highway Commission v. Daniels, 41119
| Citation | 108 So.2d 854,235 Miss. 185 |
| Decision Date | 09 February 1959 |
| Docket Number | No. 41119,41119 |
| Parties | MISSISSIPPI STATE HIGHWAY COMMISSION v. John H. DANIELS et al. |
| Court | United States State Supreme Court of Mississippi |
Satterfield, Shell, Williams and Buford, K. Hayes Callicutt, Jackson, Womack & Womack, Belzoni, Joe T. Patterson, Atty. Gen., by Matthew Harper, Jr., Asst. Atty. Gen., for appellant.
Montgomery & Varndao, Belzoni, for appellees.
This is an appeal by the Mississippi State Highway Commission, herein called Commission, from a circuit court judgment in an eminent domain case.
The Commission adopted and spread on its minutes a condemnation order declaring the necessity for the taking for public use a strip of appellees' land for the construction of a part of Highway No. 49, known as Federal Aid Project No. F010-1(4).
Pursuant to the Commission's application a special court of eminent domain was organized with a justice of the peace presiding. The application did not limit the taking with reference to whether the access rights of the landowner were to be limited or controlled. It contained the words, 'including the right to provide limited access facilities'. The amount awarded appellees in the special court of eminent domain was $38,907. The Commission immediately took possession of the condemned strip and began work on construction of the highway.
On appeal from the judgment of the special court of eminent domain to the circuit court, and before trial de novo in the circuit court, the Commission filed a motion seeking leave to amend its application so as to strike therefrom the words 'including the right to provide limited access facilities where deemed necessary', and so as to show Highway No. 49 was neither a limited access facility as defined in Chapter 313, Laws of 1956, nor a controlled access facility as defined in Chapter 314, Laws of 1956. The application for the taking, through mistake or inadvertence, had included rights with reference to access and control that the Commission did not need or desire, and the proof offered on the motion to amend showed that Highway No. 49 is neither a limited access nor a controlled access highway. The motion to amend was overruled.
Appellees' tract of land through which the right of way was sought consists of 301 acres in all, and lies adjacent to the western city limits of Belzoni. The right of way runs generally north and south about one-fourth mile from the city limits so that there is a strip of land lying between the new right of way and the city limits. A bayou lies between the city limits and appellees' property, and this bayou is the eastern boundary line of appellees' land except that the south approximately one-third of the eastern boundary does not extend to the bayou. The northern boundary of appellees' land is Highway No. 12, which the new proposed Highway No. 49 intersects at the northern terminus of the right of way in question. Between appellees' land and Highway No. 12 there is a drainage canal. The land of appellees is now used for farming. There are some industries and commercial enterprises adjoining or near appellees' land on the east and south. On the north there are two or three businesses north of Highway No. 12. Otherwise appellees' land adjoins other farm land.
The new right of way divides appellees' land so that roughly one-fourth of the land will be east of the new highway and three-fourths west of the new highway. The area sought to be condemned for the right of way in question is 25.58 acres.
The Commission's witnesses estimated that appellees would be damaged from $14,172 to $18,500, while appellees' witnesses estimated the damages from around $42,000 to nearly $60,000. The jury in the circuit court trial assessed damages at $35,000. The Commission appeals to this Court from the judgment of the circuit court.
The Commission first assigns as error the overruling by the circuit court of the Commission's motion to amend its application so as to make it show that the Commission was not taking the right to limit or control the access of appellees to the new highway.
Pertinent to this question, several matters relating to the testimony should be stated. The Commission offered, and the circuit court refused to admit in the presence of the jury, proof that the new proposed highway was an access highway and was not a limited access or controlled access highway. One of appellees' witnesses did not know whether appellees would have full access to the new highway or limited access. Another witness for appellees testified that in considering the damage he considered that appellee would not be allowed access. Still another stated that in considering the damages he took into consideration that it would be a 'one access road', reference being made to the one place on the map which showed access for the intersection of a street when it is extended from the city to the highway.
Three instructions were given the Commission which told the jury that the Commission was not condemning or taking the abutting rights of access of the defendants and that they would have direct right of access from their property to U. S. Highway No. 49 when said highway is constructed, subject only to reasonable rules and regulations of the Commission as provided by law and under the statutes, and that said Highway No. 49 is neither a limited access facility nor a controlled access facility.
It should be noted that we are not considering an amendment increasing the kind, amount or quality of the estate sought to be condemned.
The statute enjoins the applicant in an eminent domain proceeding to 'state with certainty the right and describe the property sought to be condemned.' Sec. 2751, Code of 1942. The Commission, apparently through inadvertence, filed its application so as to include in the rights taken the right to provide limited access facilities, or, in other words, the taking under the application as originally filed included the appellees' access rights. The proof offered on motion to amend shows without dispute that the Commission did not need and did not desire to acquire these access rights, and the amendment sought to eliminate these access rights from the estate sought to be taken.
We said in Muse v. Mississippi State Highway Commission, Miss., 103 So.2d 839, 850, that: 'The courts have generally held that any fact tending to reduce the damages otherwise accruing to the owner, such as restriction on the appropriator's use of the property and reservation to the owner of some right therein, may be considered in assessing damages in condemnation.' In the Muse case, the owner insisted that the case be tried as a 'landlocked' case. We held that the fact that Muse would have certain rights of access, though limited, should be considered so as to reduce the owner's damages to that extent. It appears that the public necessity did not require that the Commission take from appellees their access rights, and we said in City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 163, that a condemnor 'could not be driven beyond the public necessity in condemning appellees' easement.'
It seems clear to us that in the present case the Commission was entitled to have the jury consider the fact that appellees would have access to the new highway subject only to reasonable rules and regulations, and that since the application as originally filed in the special court of eminent domain sought to condemn a greater estate than the Commission desired or needed to take, the amendment should have been allowed unless something in the law prohibits such amendment. The Muse case is authority for the proposition that the case should be tried upon a theory that is fair to the landowner and fair to the Commission.
The general amendment statute, Sec. 1511, Code of 1942, gives courts power to allow amendments 'so as to bring the merits of the controversy between the parties fairly to trial.' Sec. 2766(c), Code of 1942, providing for appeals from the special court of eminent domain to the circuit court provides that 'the issues shall be tried de novo in the circuit court, which shall try and dispose of it as other issues, and enter all proper judgments.' The circuit court does not sit as an appellate court 'but the case must be tried anew as if it were originally instituted in the circuit court.' Lucedale Commercial Co. v. Strength, 163 Miss. 346, 141 So. 769.
It does not appear that there is any reason why the circuit court should not entertain a proper amendment limiting the estate...
To continue reading
Request your trial
-
Smith v. Mississippi State Highway Com'n, 53493
...highway and a mere inconvenience is not an item of damage in this case. [297 So.2d at 824]. See also Mississippi State Highway Commission v. Daniels, 235 Miss. 185, 108 So.2d 854 (1959); Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839 This Court approved as an ite......
-
Board of Ed. of Kanawha County v. Shafer, CC
...339 Pa. 535, 15 A.2d 363; In re Milwaukee Electric Ry. & Light Co., 182 Wis. 182, 196 N.W. 575; Mississippi State Highway Commission v. Daniels, 235 Miss. 185, 108 So.2d 854; Shell Pipe Line Corp. v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917; Coos Bay Logging Co. v. Barclay, 159 Or. 272, 79 P.2d......
-
State Roads Commission v. Wyvill
...even though evidence as to comparable sales was not admissible for the purpose of fixing value. Mississippi State Highway Comm'n v. Daniels, 235 Miss. 185, 138 So.2d 854 (1959), is to the same effect. The court held that while the record prices paid for other lots could not be stated, evide......
-
Dennis v. City Council of Greenville
...172 So.2d 196 (1965); Mississippi State Highway Comm'n v. Rogers, 236 Miss. 800, 112 So.2d 250 (1959); Mississippi State Highway Comm'n v. Daniels, 235 Miss. 185, 108 So.2d 854 (1959). Further, we have held on prior occasions that parties may properly rely on the use of comparable sales in ......