Mississippi State Highway Commission v. Pepper, 43098

• Decision Date: 08 June 1964
• Docket Number: No. 43098,43098
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. H. H. PEPPER.
• Court: Mississippi Supreme Court

Page 911

164 So.2d 911

250 Miss. 347

MISSISSIPPI STATE HIGHWAY COMMISSION v. H. H. PEPPER.

No. 43098.

Supreme Court of Mississippi.

June 8, 1964.

Joe T. Patterson, Jackson, Tate Thigpen, G. B. Keaton, Picayune, for appellant.

Williams & Williams, Poplarville, for appellee.

BRADY, Justice.

This is an appeal by the Mississippi State Highway Commission from a judgment of the Circuit Court of Pearl River County rendered in favor of H. H. Pepper for the sum of $97,550 as compensation and damages for the taking of a strip of land containing 35.92 acres of land to be used for highway right-of-way purposes in the construction of a new interstate highway running through and across the appellee's land. This highway is a relocation and construction of Mississippi Highway No. 11 and will be known as the New Interstate Highway No. 59, and it is a limited or non-access highway.

A special court of eminent domain was organized according to the law and trial had therein on June 29, 1962, in the courthouse of Pearl River County in the City of Poplarville, Mississippi. Luther M. Smith, Justice of the Peace of District 1 in Pearl River County, Mississippi, was presiding. The jury award of $85,000 was received and entered and the appellant herein took an appeal to the Circuit Court of Pearl River County. This cause came on for trial in the circuit court of said county at the regular March 1963 term thereof, and trial was had on March 25th and 26th, 1963, on a jury verdict of $97,550, and a judgment was entered on March 26, 1963. Thereafter, the appellant filed a motion for a new trial, setting up in said motion substantially the same grounds which are now assigned as errors. The motion for a new trial was overruled by the circuit court, and from which the appellant prosecutes this appeal.

The record shows that the appellee is the owner of approximately 895 acres of land in Pearl River County. This land is located on a public county road approximately two and a half miles southeast of the Village of Carriere, where there is located a new school, a post office, a few stores and places of business. The appellee's property is alao located approximately three miles north of the city limits of Picayune, Mississippi, and is about five miles north of the buffer zone of the National Aeronautics and Space Administration Mississippi Test Facility. The record discloses that this new highway for which the right-of-way was being acquired is a limited access four lane highway running from Meridian in a southwesterly direction to the cities of Laurel and Hattiesburg, and then southwesterly along the route laid out by the State Highway Commission to the City of New Orleans. This road goes through or close by the Village of Carriere and the City of Picayune, Mississippi.

The record shows that the 895 acres of land is located in Secs. 20 and 29, all in T. 5 S., R. 16 W., of Pearl River County, Mississippi. The application for condemnation of the above-mentioned four-lane strip of land for right-of-way purposes of the new highway was to enter the appellee's land in the S 1/2 of the SW 1/4 of Sec. 20, and proceeding southerly through the NE 1/4 of the NE 1/4, the W 1/2 of the NW 1/4, and the NW 1/4 of the SW 1/4 of Sec. 29, T. 5 S., R. 16 W., Pearl River County, Mississippi. The record discloses that the eastern boundary line of New Highway No. 59 extends through the appellee's property a distance of 5,333 feet. This extends from the south end to the north end on the east side, which is the longest side of the highway going through appellee's property. The western side of the four-lane highway, extending from the south to the north, extends a distance of 4,562.4 feet. Therefore, the eastern boundary line of the appellant's highway is more than a mile in length, while extending through appellee's property. This property of the appellee does not front on any main or hard surfaced roads but does have a small amount of frontage on a gravel road over the east side, where a portion of the property projects out to the east of the road. The record discloses that the appellee owned a valuable tung and cattle farm and that he had also merchantable timber in a smaller amount of the land devoted to timber raising or to a timber farm. The appellee does not live on this farm but resides in Picayune, Mississippi.

The record discloses that prior to the time the highway came through appellee's land, that of the 895 acres, 445 were in tung trees; that the average age of these trees was ten to fifteen years; that he had what he considered a perpetual growth because as old trees died or were injured by lightning or otherwise, he would replace them. The average bearing time for trees is about twenty years. The tung trees were of three typs, L-2's, 51's and 47's. The ground was highly cultivated and fertilized before the selective trees were put out, and they were planted approximately a hundred to a hundred and twenty-five trees per acre. A hundred to a hundred and twenty-five trees seems to be the maximum for productivity on land such as the appellee has. The soil of this land was the Orangeburg and Ruston type. It had good drainage facilities and was the best type for growing tung trees and for pastureland. The appellee's entire place was fenced with a net wire, topped with barbed wire on the outside, and with barbed wire cross-fences. The appellee had constructed service roads throughout his farm in such a manner that all parts were easily accessible from the remainder thereof. These roads were built for the purpose of moving cattle, and for collecting muts from the tung trees and moving them by wagons as quickly and as expediently as possible, so as not to interfere with his cattle-grazing operations. The record shows that he had approximately five hundred head of cattle grazing on this land and of the 895 acres, 365 were in improved pasture of red clover, white clover and bahia. The record discloses that the appellee had had his entire farm analyzed insofar as the chemical make-up of the soil was concerned and, from his own personal experience of over thirty-seven years of actually engaging in agriculture of horticulture, he had produced or had built a very fine pasture and a very fine tung tree farm. It was drained, fertilized, terraced and prepared as well as any farm and pastureland could be prepared.

Of the 895 acres of land, 85 acres were in timberland, which consisted of pine and hardwood, the hardwood being mostly gum and poplar, all of which appellee testified was merchantable.

On the 365 acres in improved pasture was a dwelling house which consisted of three bedrooms, one of which was 16' X 16', and the other two were 14' X 14', each having a big closet; there was a hall, a bath and a partial bath, utility room, living room with fireplace, kitchen and dining room. There was a breezeway, and a porte cochere with storage space. There was an attic fan, electricity, and gas heaters to supplement the fireplace in this house. The house was approximately three years old. It is located on the extreme, middle, southeast portion of appellee's land. The highway appears to divide appellee's land into two parts, two-thirds of which lies east of Highway 59 and one-third to the west, north and northwest. In addition to the house, appellee has on his land one barn 24' X 150' which is an equipment barn, a second barn 40' X 80' with a drop shed 20' X 80', and a third barn 40' X 60', and a fourth barn 40' X 35'. There were seven stock ponds on appellee's land, all of which will be cut off from the one-third western and northwestern part by the construction of Highway No. 59. There were net wire fences outside and principally barbed wire crossfences. There were service roads, which were constructed so that heavy trailers could be used over them in order to haul the tung nuts; and the cross-fencing was put in in order that the property could be handled most economically from the standpoint of cattle, and in connection with the collecting of the tung nuts or the handling of the tung trees. There were pens in which to spray the cattle and also pens in which to doctor them.

The record discloses that the highway will separate on the west side thereof 252.71 acres, 174.71 acres being in tung trees, 15 acres in improved pastureland, and 63 acres in timberland. The record discloses that 252 acres of this land will be landlocked, in that it will not be possible for the appellee to go upon it because of limited access Interstate Highway No. 59. It appears that in order to get to this land the appellee will have to travel over a circuitous route of county roads, and he does not have any roads going into the portion of his land west of Interstate Highway No. 59, which enters it from the west or the north side. It appesrs, therefore, that these roads of necessity will be to be constructed if the appellee is to utilize any of this land located west of the Interstate Highway No. 59. Highway No. 59 separates 606.84 acres to the east, which is composed of 344 acres in improved pasture, 240.84 acres in tung trees, and in the improved pasture are the stock ponds, the local plantation roads and 22 acres of timberland. This 606.84 acres is left on the east side of the road which is accessible to the appellee and over which his plantation roads extend and which he can still use. It appears that new fences will have to be built, as well as cross-fences and stock pens. It appears that his two main ponds will be injured or destroyed by the building of the new highway. The total number of acres being taken by the highway, including the easement, is 35.92 acres. The dwelling house and the other improvements were used by the overseer or manager who lived on the farm and managed the farm for the appellee.

After the jury verdict of $97,550 was received and entered and after a judgment had been entered thereon, appellant filed a motion for a new trial, alleging its grounds therefor...