Mississippi State Highway Commission v. Hall

• Citation: 252 Miss. 863,174 So.2d 488
• Decision Date: 26 April 1965
• Docket Number: No. 43495,43495
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. D. R. HALL et ux.
• Court: United States State Supreme Court of Mississippi

Page 488

174 So.2d 488

252 Miss. 863

MISSISSIPPI STATE HIGHWAY COMMISSION v. D. R. HALL et ux.

No. 43495.

Supreme Court of Mississippi.

April 26, 1965.

Joe T. Patterson, Atty. Gen., Jackson, Pack & Ratcliff, Laurel, for appellant.

Melvin, Melvin & Melvin, Laurel, for appellees.

BRADY, Justice:

This is an appeal from a final judgment of the Circuit Court of the Second Judicial District of Jones County affirming the county court's judgment in the sum of $30,307.50 with a remittitur in the sum of $3,307.50, which was rendered in an eminent domain case arising from the acquisition of the right-of-way for the construction of Highway 59 in said county. The remittitur was timely accepted and entered by the appellees and it is from the judgment of $27,000 that the Commission appeals. Stated as briefly as possible, the dominant and pertiment facts in this appeal are these:

The appellees owned an irregular shaped parcel of land containing 87.54 acres, hereinafter designated as 88 acres, which was situated approximately two miles north of the present north boundary line of the city of Laurel by roadway. It is also situated between 300 to 400 feet from the nearest public highway. It is cutover land, some of which is in the Tallahala swamp, through which Tallahala Creek runs. It is estimated that 10 to 15 acres of this tract lie west and north of Tallahala Creek. The land does not abut on any regularly used public road. The closest portion of said land to a public road is the southeast corner, which is around 300 to 400 feet west of U. S. Highway 11.

The only means of ingress and egress to this land by the appellees was obtained over an unimproved road, which was an old abandoned road, which stretched across one or more neighbors' property and had not been utilized as a road for a long period of time. This was a woods road and appellees claim that it came within 100 feet of the southeast corner of their land. The appellees do not live on this parcel of land, but live some distance therefrom on land bordering on Highway 11, consisting of some 300 or 400 acres.

The record discloses that there are no improvements on appellees' 88 acre tract whatsoever, except that there are signs of an old fence on the southern boundary line, and on the north boundary line there is an old fence which is in need of repair. The land has not been in cultivation for approximately forty years. Six or seven years prior to the trial of this case the merchantable timber and also the pulpwood had been cut from the land but, since that time, there has arisen a scattering growth of small pulpwood which averages about two units per acre in the best part, totaling in all not more than eighty or ninety units over the entire tract, which has a stumpage sale value of around $2 per unit.

The record discloses that there are no dwellings of any kind or character on this land, no lakes or ponds, no cattle pastures, and no roads, save some old woods roads, or logging roads. The record fails to disclose that this land had been put to any worthwhile use or that any monetary benefits had come to the appellees from the use of this land. The record discloses that the appellees paid in cash $3,000 in 1956 for the entire 88 acres. Appellee Hall, however, urges that because of advice which he gave Mr. Haynes, one of the stockholders of the Holiday Inn, Inc., from whom he purchased the 88 acre tract, and information furnished with reference to construction costs and problems incidental to the erection of the Holiday Inn, and also because he gave him estimated replacement damages for insurance claims because of fires which Mr. Haynes had sustained to his home and to a store which he owned in Ellisville, Mississippi, he was entitled to compensation of $14,000 to $15,000, which Mr. Haynes took into consideration when he sold him the 88 acres for the sum of $3,000. The record fails to disclose the names of any shrubs, flowering or otherwise, on this land. Not even a plum thicket, persimmon or hickory nut tree is shown to be on this 88 acres. There is no pasture land, but only hills and valleys. There is no means of passage over Tallahala Creek or through the swamp and overflow land adjacent thereto by way of bridge or footpath.

The record shows that this right-of-way will enter the 88 acre tract near the southeast corner thereof, slanting in a northeast direction varying in width from 450 to 480 feet, and will contain in the right-of-way proper 10.54 acres. The right-of-way of Highway 59 will separate 57 acres of appellees' land which will lie to the north and west of the right-of-way, and approximately 20 acres will be cut off to the east of the right-of-way. Interstate Highway 59 will be a limited or nonaccess highway through this land. The record discloses that the construction of the right-of-way and highway will not alter or change the present drainage of the appellees' property. It is undisputed that the 57 acres will be severed from the rest of the land by the construction of the highway and that the nearest public road to the 57 acres will be 4,300 feet south. From an exchange at the south, there will extend northward a frontage road parallel to Interstate Highway 59 which ends 1200 feet from appellees' south boundary line.

The 88 acres, prior to the time the right-of-way of Highway 59 was staked therethrough, did not abut on present U. S. Highway 11, and the property did not have any public road leading into or out of the 88 acres. Highway 11 was located, at the closest point, about 400 feet from its southeast corner. To have constructed a road into the 88 acres, the appellees would have had to cross the lands of two or more neighbors whose property adjoins or is located near appellees' property. The roadways from U. S. Highway 11, toward the appellees' property, over the property of his neighbors, will not be disturbed in any manner except that they will be closed at the interstate right-of-way.

The appellant urges that the circuit court erred in affirming the lower court's judgment, even in its reduced amount, because the verdict was grossly excessive against the overwhelming weight of the evidence, and evinced bias, passion and prejudice. Appellant urges further that the circuit court erred in affirming the judgment, because of inflammatory remarks made by appellees' attorneys in the summation to the jury; that the court erred in admitting evidence of the sale price of non-comparable property; and, finally, that the court erred in not reversing the judgment because of the granting of an erroneous instruction.

The case at bar is controlled by the principles announced in the following cases: Mississippi State Highway Comm. v. Ratcliffe, 171 So.2d 356 (Miss.1965); Green Acres Memorial Park, Inc. v. Mississippi State Highway Comm., 246 Miss. 855, 153 So.2d 286 (1963); Mississippi State Highway Comm. v. Colonial Inn, Inc., 246 Miss 422, 149 So.2d 851 (1963); Mississippi State Hibhway Comm. v. Stout, 242 Miss. 208, 134 So.2d 467 (1961); McDuffie v. Mississippi State Highway Comm., 239 Miss. 518, 124 So.2d 284 (1960); Mississippi State Highway Comm. v. Valentine, 239 Miss. 890, 124 So.2d 690 (1960); Mississippi State Highway Comm. v. Brooks, 239 Miss. 308, 123 So.2d 423 (1960); Mississippi State Highway Comm. v. Pittman, 238 Miss. 402, 117 So.2d 197 (1960); Mississippi State Highway Comm. v. Taylor, 237 Miss. 847, 116 So.2d 757; aff'd with remittitur after new trial, 240 Miss. 1, 124 So.2d 684 (1960); Mississippi State Highway Comm. v. Rogers, 236 Miss. 800, 112 So.2d 250 (1959); Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565 (1940).

Since the granting of the erroneous instruction requires reversing and remanding this cause, it appears wise to comment briefly on other errors which can also be avoided on a retrial of this case. The instruction complained of is as follows:

'The Court instructs the jury for the defendants that just compensation in cases involving a partial taking is generally the value of the part taken plus all the damages which the residue of the property suffers, including a diminution in value of the remainder by reason of the lawful use to which the portion acquired will be put. The owner of the land is not restricted to the recovery of damages to the remainder from the taking of a part thereof, but is entitled to recover all special damages that may result to the remaining land from the public use to which the part taken is put.'

Appellees are incorrect when they state that appellant did not complain of this instruction in its assignment of errors to the circuit court because it was specified in the assignment of errors by the appellant and was treated in appellant's brief filed in the circuit court. An analysis of this instruction reveals that it is the composite of dicta and statements in two cases heretofore decided by this court. In the Colonial Inn case will be found the first half of the instruction now under consideration, which is as follows:

"The just compensation in cases involving a partial taking is generally the value of the part taken plus all the damages which the residue of the property suffers, including a diminution in the value of the remainder by reason of the lawful use to which the portion acquired will be put. * * *" (246 Miss. at 432, 149 So.2d at 856.)

Beginning with the words 'just compensation,' the first half of the instruction is verbatim with a part of the quotation. This quotation was cited by Justice Ethridge, who spoke for the court and who stated in the Colonial Inn case that the principle universally applied in other states and which is in accord with the decisions in this state is summarized in Jahr, Eminent Domain sec. 50 (1953). That part which was not quoted in the first half of appellees' instruction, but which appears in the Colonial Inn case, consists of these concluding words: 'Anything less than the foregoing would encroach upon the constitutional...