Mississippi State Highway Commission v. Finch, 41292
| Decision Date | 05 October 1959 |
| Docket Number | No. 41292,41292 |
| Parties | MISSISSIPPI STATE HIGHWAY COMMISSION v. Earl M. FINCH. |
| Court | Mississippi Supreme Court |
Simrall, Aultman & Pope, Hattiesburg, Joe T. Patterson, Atty. Gen., Matthew Harper, Jr., Asst. Atty. Gen., for appellant.
E. J. Currie, Sr. & Jr., Pittman & Pittman, Hattiesburg, for appellee.
The Commission filed in the County Court of Forrest County its petition for the condemnation of .55 of an acre of the Finch land for the purpose of relocating and reconstructing U. S. Highway No. 49, a part of Federal Aid Project No. F-008-2(4) near Hattiesburg, Mississippi. The petition described its powers to relocate, etc., the highway and to condemn the necessary land 'including the right to provide limited access facilities where deemed necessary.' In Paragraph 5 it described the land sought to be condemned without reference in that paragraph to any access rights. It made the Commission's order declaring the necessity for the taking an exhibit to the petition. This order made the plans and specifications for the project a part thereof by reference.
Prior to the taking here involved, the landowner owned about 12 acres of land lying along the northerly right of way of U. S. Highway 49, fronting about 612 feet on the business route which at that point was a one-way lane going north. This lane converged with the main north and south lanes of the highway at or near the southwest corner of Finch's property. There was a county road running north and south along the western edge of the Finch land which intersected U. S. Highway No. 49 at or near the southwest corner thereof. Up until a short time before the petition was filed, Finch had a service station on his land with two access driveways into the said business route of U. S. Highway No. 49. It is not shown when or how the Commission acquired the right of way for the highway existing at the time the petition was filed, but the Commission does not contend that it had theretofore acquired any of Finch's access rights. It follows that at the time the present petition was filed, U. S. Highway No. 49 was an existing highway and Finch's right of access was neither controlled nor limited in any way except that the Commission had the right to reasonably regulate entrances to the highway.
The petition sought to condemn .55 acre along the southerly edge of Finch's land, varying in width from about 50 feet on the southeast corner to 12 feet at the southwest corner. According to the proof, including the plans and specifications for the new construction, the land belonging to Finch sought to be condemned would be included in a service or frontage road which would be a two-way drive separated from the said business route of U. S. Highway No. 49 by a neutral strip. This service road is to be connected with the business route of U. S. Highway No. 49 at an interchange at or near the southwest corner of the Finch property where the service road and all lanes of U. S. Highway No. 49 are connected. The service road on which Finch's property will front when the construction is completed will also connect with the business route of U. S. Highway No. 49 about 1,200 feet southeast of the interchange already mentioned. It was shown by the testimony that traffic moving north on the business route would have to turn into the service road at the southeast interchange, from which point a service station on the Finch property would not be observable, in order to drive directly from the service road into the Finch property. The only other way for a motorist going north on the business route to get into the Finch property would be to use the interchange near the southwest corner of the Finch property and drive back to the Finch property. In short, the plans and specifications for the new construction show that the existing highway is to be converted into a controlled-access facility. Before the taking, Finch's property abutted the main travelled northbound lane of the Hattiesburg business route with full rights of direct access thereto, subject only to the Commission's right to reasonable regulation. After the new construction, Finch's property will abut a service or frontage road connected with the main highway only at the interchanges as...
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