Mississippi State Highway Commission v. Ferguson, 44063

• Decision Date: 27 September 1966
• Docket Number: No. 44063,44063
• Citation: 190 So.2d 455
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. A. J. FERGUSON et al.

Page 455

190 So.2d 455

MISSISSIPPI STATE HIGHWAY COMMISSION v. A. J. FERGUSON et al.

No. 44063.

Supreme Court of Mississippi.

Sept. 27, 1966.

John H. Shands, Vaiden, Black & Boykin, Carrollton, for appellant.

Lott & Sanders, Greenwood, for appellees.

BRADY, Justice.

This is an eminent domain case filed by appellant, Mississippi State Highway Commission, against appellees, A. J. Ferguson, his wife Daisy D. Ferguson, and their son Hugh S. Ferguson. Appellant seeks to condemn six parcels of land containing in the aggregate 27.34 acres, more or less. The land is located in the Second Circuit Court District of Carroll County, and is needed for use as right-of-way in the location and construction of U.S. Interstate Highway 55. In the Special Court of Eminent Domain, the trial jury awarded a verdict assessing damages in the amount of $12,800. Appellant appealed the case to the circuit court, and a jury returned a verdict fixing damages in the amount of $12,575. The circuit court overruled appellant's motion for a new trial, and from the judgment appellant now prosecutes this appeal.

The facts essential to disposition of this cause are as follows: Appellees own a farm in Carroll County consisting of approximately 322 acres. This is a good farm, and it is used to grow cotton and corn, and to raise and graze cattle. The farm is well situated, and is being put to its best use by appellees. There are two stock ponds, but only one, approximately two acres in size, holds water the year round. This pond is located in the right-of-way taken by appellant. Improvements on the farm consist of two tenant houses, two barns, and a loading chute, all located in the portion of the farm which will be west of the non-access highway when it is completed.

Testimony, together with the maps introduced in this case, clearly shows that after construction of the proposed highway the farm will be separated into two tracts, one on the east side consisting of 100 acres, and the other on the west side consisting of approximately 195 acres. The land condemned by the highway consists of six parcels. Parcel 1 consists of 25.20 acres, which will be condemned and actually utilized as the roadbed, or right-of-way. Parcels 2 and 3, consisting of 0.12 and 0.68 acres, will be used for an access right-of-way. Parcel 4, containing 0.17 acres, will be needed for an easement, together with Parcel 5, containing 0.71 acres, and Parcel 6, containing 0.46 acres. The access acre-age totals 0.80 acres, and the easement acreage, 1.34. The right-of-way taken will be approximately 3,200 feet long and will vary in width from 300 to 410 feet. It is a non-access highway, and it will be impossible for appellees to move cattle, farm machinery, or anything else from one tract of land to the other except by leaving the land, proceeding on a country road located north of appellees' property and using the overpass on this country road which will cross over Interstate 55, and then proceeding down to the tract located on the opposite side.

The record discloses that U. S. Highway 55 is a four land highway, with a median dividing the lanes. The median will be 88 feet in width and will extend approximately 3,200 feet. It will be approximately 4 feet lower than the level of the highway, so that by gravity water will accumulate and drain into the median. The water draining into the median will be drained then onto appellees' land at approximately 500 foot intervals along the 3,200 foot strip. Parcels 2 and 3 will be taken by the appellees for the purpose of widening a country road, enabling appellant to reconstruct this road and have it pass over Interstate Highway 55. Parcels 4, 5 and 6 constitute permanent easements, which will be taken for drainage purposes and for construction of drainage structures. Parcels 4 and 5 will be taken so that a large culvert can be constructed from Parcel 4 under the highway for about 348 feet in length to Parcel 5. Parcel 6 also will be used for the construction of a drain pipe to remove water from the median. The other places where the water will be drained from the median to the appellees' land are not shown on the plot, as no other land is being condemned for these purposes. The appellant is taking permanent easements to Parcels 4, 5 and 6, with the right to use them for drainage and to construct thereon any drainage structures it may desire. The taking of permanent easement to these three tracts, instead of taking the fee simple title, leaves the appellee with the responsibility of having to pay taxes on them.

The record indicates that appellees' farm is of a sandy soil nature, and that in the construction of the highway and the building of the fills this land will wash and drain down on appellees' cotton and other farm lands. The present gravel country road on the north boundary of appelles' land is also constructed on sandy soil, and has been and is now serving in effect as a drainage ditch to drain water down it and thus keep it off appellees' land. When the new county road is constructed, raised and hard surfaced, the water from this road rapidly will wash down upon appellees' land, carrying sand with it into appellees' crop lands. The 322 acre farm will now be converted into two farms of approximately 100 acres on the east and 195 acres on the west. It is clear from the testimony that appellees will have to fence their land while the highway is being constructed, and that approximately 8,351 feet of fence will have to be built to keep appellees' cattle thereon and to protect the crops from damage. The record shows that this is a well-rounded farm with low cropland, good pastures, and some wood land, that appellees have a number of cattle on their farm, and that they have raised a good bit of feed for the cattle. If both farms are to be used, then two ponds will have to be dug. If the cattle are not to be moved over the county road from one pasture to the other, then a chute will have to be constructed on each tract. Any improvements essential to successful operation of one tract will have to be built on the other tract. This applies not only to cattle raising, but also to farm operations.

Two witnesses testified on behalf of appellant, and three on behalf of appellees, on the question of value and damages.

Appellant's first witness was T. I. Carroll, a full-time appraiser with the Mississippi State Highway Commission. His experience as a land appraiser consisted of a two weeks course at Southern Methodist University, attendance at a three day seminar and at a one day seminar, and on-the-job training with appellant. He testified that he believed the present market value of appellees' farm to be $44,200 before the taking, $37,485 after the taking, with resulting damage of $6,715. This witness stated he did not take into consideration any damage to the remaining land from water, sand or other material washing on it. This witness took into consideration the agricultural purposes for which the land was used, such as for cattle and row crops. He took into consideration also destruction of the stock pond and allowed for construction of one stock pond. He considered the necessity of building fences, estimating the cost at 15cents per foot, for about 7,200 feet of barbed wire. The cost of constructing the pond he estimated to be 20cents per cubic yard, and stated that 2000 cubic yards of dirt would be necessary, making the cost $400. He estimated the value of the 26 acres actually taken at $110 an acre, which amounts to $2,860. He valued the easements at $110 an acre, and estimated the 1.34 acres of easement taken would produce $150 in damages. The resultant damages from dividing the land he estimated to amount to $2,225.

Appellant's second witness was Mr. Sidney Branch, a farmer who resides in Montgomery County. He estimated the value of appellees' farm before the taking to be $30,000, and after the taking to be $23,700, resulting in damages of $6,300. He also took into consideration the fact that 2,000 cubic yards of dirt would be needed to construct the levee, at 20cents per yard. Branch estimated the 26 acres of land taken for the right-of-way to be worth $75 an acre, or a total of $1,950. The easements he valued at 50 percent of $100 an acre, or $70. He estimated that 7,600 feet of fence would be needed at 15cents a foot, totaling $1,140. Mr. Branch estimated that because of the splitting of the property, the inconvenience, cost and loss of time in operating both farms for general purposes would result in a loss in value of $2,740. Mr. Branch testified positively that he did not take into consideration, or allow anything for the washing of sand and materials from the various roadbeds onto the remaining lands of appellees, and that he did not take into consideration or allow any damages on account of water which would be thrown upon appellees' remaining land. This he would not do because he stated he did not know where appellant was going to run the water off of the highway onto appellees' land.

Appellees' first witness was Mr. L. K. Moore, Jr., a practicing civil engineer, engaged in the real estate business and in the business of appraising lands, having done appraisal work for insurance companies, savings and loan associations for inheritance tax purposes, and for various individuals. He testified that the present fair market value of appellees' land would be $55,625 and the after taking value would be $42,279.25, resulting in damages of $13,345, rounded off. In breaking down these figures Mr. Moore stated that he took into consideration the fact that the farm was being split into two separate and distinct places of operation. He considered the necessity of having to construct 8,351 feet of fence at 20cents per foot. He estimated the damage to the cropland from erosion and water and from materials that would be deposited on it by reason of the construction. He considered the fact that appellees would not have...