Mississippi State Highway Commission v. Rogers, 41237

• Decision Date: 25 May 1959
• Docket Number: No. 41237,41237
• Citation: 112 So.2d 250,236 Miss. 800
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. C. B. ROGERS.
• Court: Mississippi Supreme Court

Page 250

112 So.2d 250

236 Miss. 800

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

No. 41237.

Supreme Court of Mississippi.

May 25, 1959.

Joe T. Patterson, Atty. Gen., by Matthew Harper, Jr., Asst. Atty. Gen., Welch, Gibbes & Graves, Boyd & Holifield, Laurel, for appellant.

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

ETHRIDGE, Justice.

The Mississippi State Highway Commission filed a petition in the County Court for the First Judicial District of Jones County against appellee, C. B. Rogers, seeking to condemn a parcel of land owned by Rogers and comprising a total of 6.52 acres, for public purposes in the construction of new U. S. Highway 11, Interstate. The issue of damages for the taking was tried before a jury in the county court, which rendered a judgment for Rogers in the amount of $120,000. The Commission appealed to the circuit court, which found a number of errors in the trial before the county court, and ordered, in the alternative, a reversal or a remittitur of $18,000. Appellee accepted the remittitur, so the judgment on appeal here is in the amount of $102,000.

Rogers' entire tract of land is substantially rectangular in shape, and consists of 28.98 acres. It is about 1.5 miles south of the city limits of Laurel, and about 3 miles north of the city limits of Ellisville. It faces east on old Highway 11, on the west side, with a frontage of approximately 405 feet. Rogers is now using 6.7 acres fronting on old Highway 11 for a used and junk auto parts business. This front tract is under fence with a gate on old Highway 11 for entry. It has two buildings on it, with wood frame, metal galvanized roof and siding, and concrete slab floors. The front, smaller building is used for an office and has shelves upon which auto parts are placed. It will not be taken. The rear building is used for a garage and paint shop. There are gravel drives and a gravel area to the front.

The new Highway 11 will cross appellee's land toward the front of his tract in a northeasterly-southwesterly direction, taking also a strip fronting 108.84 feet on old Highway 11 for an interchange access. Since the new highway is a limited access facility, and its elevation is about 13 feet above this land, the remaining land east of it after taking will not have direct access to the new highway, but only to the old one. Of the 6.7 acres now used by Rogers, the Commission will take 2.88 acres; it will also take 3.82 acres which he is not now using, west of the fence marking the west boundary of his present business area. The total area taken by the highway is 6.52 acres. Rogers will have left a 296.16 foot frontage on old Highway 11, and 3.82 acres fronting on that highway, and east of the new highway. West of the new highway he will have left 18.64 acres, part of which has some timber on it. The great weight of the evidence reflects most of it is ten to twelve feet lower than the fenced, east 6.7 acres, and is swamp, bottom land. After the taking, the 18.64 acres west of the new highway will be virtually inaccessible and of little value. The three appraisers who testified for the Commission fixed a present fair market value of $27,500 on the entire tract before taking, after taking, $5,400, or damages of $22,100. The five witnesses who testified as to values for appellee fixed the value before taking at $129,000 to $163,420; the value after taking from $4,100 to $7,300; and damages for the taking, from $124,000 to $157,465. Two of the witnesses for appellee fixed the value for the front 12 acres at $7,000 an acre, one at $10,000 an acre, another, the front 8 acres at $8,000 per acre, and another the front 3 acres at $12,000 an acre, and the front 12 acres aggregating $10,000 an acre. Several of these witnesses for appellee guessed and approximated the acreage used presently in condemnee's business, the amount of land under fence, and the amount left east of the new highway after taking. Several of appellee's witnesses missed the frontage remaining after the taking by approximately 100 feet. Others placed separate values upon particular items, including some improvements not taken and some separate parts of the entire parcel, including separate valuation of timber. They then added these particular separate items, and aggregated the value of the lands. The separate items were not used simply as facts bearing on the market value of the remaining land. This method of adducing evidence in eminent domain proceedings was misleading to the jury and was condemned in Mississippi State Highway Commission v. Hillman, 1940, 189 Miss. 850, 198 So. 565. Hillman also held it was error to value the trees on the land as a separate item of damages.

Another witness for appellee admitted that his estimate of valuation was based solely on what he would want for the property if it was his. A map of the land, showing its measurements and the various acreages in the different tracts, was undisputed, as was the testimony of appellants' witnesses thereon. Yet several of appellee's witnesses approximated and guessed as to the acreage presently used by appellee, that left, and the frontage remaining. It is unreasonable to expect a jury to determine a fair valuation with accuracy and without prejudice in the face of such guesses and speculations. Appellee's witness Bethea...