Mississippi State Highway Commission v. Blackwell, 49586

• Decision Date: 31 August 1977
• Docket Number: No. 49586,49586
• Citation: 350 So.2d 1325
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. Basil BLACKWELL et al.
• Court: Mississippi Supreme Court

Page 1325

350 So.2d 1325

MISSISSIPPI STATE HIGHWAY COMMISSION v. Basil BLACKWELL et al.

No. 49586.

Supreme Court of Mississippi.

Aug. 31, 1977.

Rehearing Denied Nov. 16, 1977.

John K. Keyes, Collins, A. F. Summer, Atty. Gen., Jackson, for appellant.

Ingram & Matthews, Carroll H. Ingram, Hattiesburg, for appellees.

Before SMITH, P. J., and BROOM and LEE, JJ.

BROOM, Justice, for the Court:

Eminent domain proceedings by Mississippi State Highway Commission (Commission) went to judgment in a Special Court of Covington County. Taken were .05 acre of land and a .01 acre drainage easement out of a 2.42 acre tract owned by Basil and Scotty Blackwell (appellees). From the $12,750 jury verdict and judgment, the Commission appeals. Chief issues relate to the trial court allowing appellees to (1) introduce evidence concerning loss of access to Highway 49, and (2) substantially raise their statement of values after jury selection was completed. We reverse and remand.

I.

DID THE APPELLEES' INTRODUCTION OF EVIDENCE CONCERNING ALLEGED LOSS OF ACCESS TO HIGHWAY 49 CONSTITUTE REVERSIBLE ERROR? The land taken is situated on the east side of U.S. Highway 49 and on the south side of State Highway 590 where the two highways intersect near Seminary, Mississippi, forming "Seminary Junction." Appellees' 2.42 acre tract was used as residential property when this action was filed. In 1958 the Commission (by deeds) obtained land from appellees' predecessors in title for the purpose of four-laning Highway 49, and locating a sight flare at the intersection so that travelers would have better vision there. When the deeds were executed, there was a graveled driveway extending southwesterly from the south margin of Highway 590 (just east of the junction) across the subject property to the east margin of Highway 49. The Commission filed this action in 1974 and (using posts) barricaded the east margin of the flare which was purchased in 1958 from appellees' predecessors. The barricade effectively cut off the appellees' direct access into Highway 49, i. e., the graveled driveway, which they and their predecessors had previously used since prior to 1958 and until barricaded in 1974. At trial appellees successfully argued that the placement of these creosote posts cut off a long established access for which they should be compensated, and they were allowed to present such evidence to the jury. The Commission contends that: (1) Legal access to Highway 49 across the sight flare area, including that area on which the driveway is situated, ceased when the highway was four-laned in 1958; (2) appellees' predecessors in title were duly compensated (by acceptance of the consideration for the two deeds) for that loss of access; and (3) after 1958 any vehicular access used by appellees to Highway 49 at the disputed area was illegal access at worst, or permissive access at best.

In 1958 appellees' property was owned by two separate landowners the south (largest) portion was owned by L. B. Shoemake, and the northernmost portion was owned by Ira Aultman. In the process of four-laning Highway 49, the Commission purchased (by warranty deeds) from Shoemake and Aultman a strip of land east of Highway 49 alongside the paved portion, thereby creating the flare off of 49 at its junction with 590. Both deeds reflect a substantial, if not handsome, consideration. The Shoemake deed conveyed to the Highway Department .48 acre of the flare parcel for the sum of $6,960, which deed specified that $960 was for .48 acre of land and $6,000 was for all other damages related to the proposed highway construction. By the Aultman deed to the Highway Department, 1.15 acres were conveyed for the sum of $18,500, but the deed did not specify the amount designated for land or for damages. Both deeds are printed Mississippi State Highway Department forms, and state:

It is further understood and agreed that the consideration herein named is in full payment and settlement of any and all claims or demands for damage accrued, accruing, or to accrue to the grantors herein, their heirs, assigns, or legal representatives, for or on account of the construction of the proposed highway, change of grade, water damage, and/or any other damage, right or claim whatsoever.

In Muse v. Mississippi State Highway Comm'n, 233 Miss. 694, 103 So.2d 839 (1958), the Highway Department acquired title (in 1948) to 6.1 acres of land owned by Sam D. Morrison and others, Mrs. Muse's predecessors in title, for the purpose of constructing a four-lane section of U.S. Highway 51 north of Jackson. The first two-lane section of the highway was completed in 1955, and in 1956 the Commission decided to construct two additional lanes as frontage or service roads. The service road project required condemnation of .61 acre of Mrs. Muse's property along with rights of access. One of her contentions on appeal was that her right of access was additionally limited by the building of a median between the northbound two lanes and the southbound two lanes, impeding her free access to the entire highway. We held that any loss of access by the construction of the median was an inconvenience to the general public and an incident to the proper exercise of police powers, and hence no payment of compensation was due to Mrs. Muse. Muse further held that the right-of-way deed executed by Mrs. Muse's predecessor in title

recited that the consideration paid to the grantors in that deed was paid in settlement of any and all claims or demands for damages "accrued, accruing or to accrue to the grantors, their heirs, assigns, or legal representatives, for or on account of the construction of the proposed highway, change of grade, water damage, or any other damage, right or claim whatsoever." That receipt and release was binding upon the successors in title to the grantors therein. The record shows that work on the two west lanes of the four-lane highway was completed sometime during the year 1955. But the Commission still had a right to construct the two additional lanes when money was made available therefor; and no further liability existed for the payment of additional compensation to the appellant for damages resulting from the construction of the four-lane highway . . . . State Highway Commission v. McClendon, 212 Miss. 18, 53 So.2d 35. (233 Miss. at 715-716, 103 So.2d at 848).

Here the evidence clearly shows that no permit for the driveway in controversy was ever applied for by Shoemake or his successors in title (appellees). However, Shoemake testified that the Highway Department knew of the existence of the driveway and that the Highway Department contractor, after four-laning the highway, put the access drive back onto the Shoemake property. On cross examination appellee, Scotty Blackwell, affirmatively answered a question as to whether (when he purchased his property) he knew the Commission had purchased the disputed area from his predecessor (Aultman) "as a sight flare area."

Two aspects of the instant case are noteworthy here. First, when the sight flare area was purchased from Shoemake and Aultman in 1958 by the Commission, the area became subject to Commission control under police powers set forth by our statutes, including Mississippi Code Annotated § 65-1-19(d), (h) and (k) (1972). American Oil Co. v. Mississippi State Highway Comm'n, 244 Miss. 821, 146 So.2d 355 (1962). Secondly, under those police powers the Commission already had promulgated its "Mississippi State Highway Department Maintenance Manual" Chapter XI § 1 C (3d ed., Jan. 1954), which provided:

(9) Corner Sight Areas

At intersections where sight distance or clear vision areas have been obtained no driveway shall be permitted to cross this area. . . .

Of course, by statutory and case law, abutting landowners are entitled to compensation for loss of direct access. Here, not only did Shoemake and...