Mississippi State Highway Commission v. Stout

• Decision Date: 20 November 1961
• Docket Number: No. 42015,42015
• Citation: 242 Miss. 208,134 So.2d 467
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. John M. STOUT et al.
• Court: Mississippi Supreme Court

Page 467

134 So.2d 467

242 Miss. 208

MISSISSIPPI STATE HIGHWAY COMMISSION v. John M. STOUT et al.

No. 42015.

Supreme Court of Mississippi.

Nov. 20, 1961.

Fancher & Fancher, Ray, Spivey & Cain, Canton, for appellant.

Charles Clark, Wm. H. Cox, Jr., Jackson, for appellee.

GILLESPIE, Justice.

The Mississippi State Highway Commission filed with the Circuit Clerk of Madison County its application for the organization of a special court of eminent domain as provided by law for the condemnation of certain property belonging to John M. Stout. The special court was organized and a verdict rendered by the jury awarding damages of $30,250. The Mississippi State Highway Commission appealed to circuit court, where the jury awarded damages of $35,000, and judgment was entered accordingly. Mississippi State Highway Commission appealed to this Court.

Appellee owns 164 acres of land adjoining the western city limits of Ridgeland, Madison County, Mississippi. The land is about two or three miles north of the city limits of Jackson; the exact distance not being shown in the record. The land is highly developed for pasture with a pecan grove on the south part. The improvements consist of appellee's home, out buildings and fences. Appellee has owned and lived on the land for many years. None of the buildings were taken. A part of the acquisition by appellant is for the purpose of constructing New Interstate Highway No. 55, a non-access facility. No plans and specifications were introduced in evidence and no engineer testified concerning the details of the new construction. A map was introduced showing the location of the new facility in relation to appellee's land. The land being condemned is in three parcels: Parcel No. 1, being 0.17 acres, is a narrow strip on which a fill is to be constructed, and it is a part of the right of way of Interstate Highway No. 55; Parcel No. 2, being 0.91 acres, is a narrow strip running west from the right of way, and is being acquired for the purpose of reconstructing the Old Agency Road approaching Interstate Highway No. 55, and on this strip is to be constructed a fill up to 15 feet high; Parcel No. 3, consisting of 27.89 acres, is being acquired for use by the Natchez Trace Parkway. Appellee owns 3.17 acres of land south of Parcel No. 3, to which appellee will have no access. Thus the total area of land being taken by appellant is 28.97 acres. An additional 3.17 acres will be made inaccessible. A fill on the appellant's right of way, estimated to be 15 feet high at some places, will abut appellee's remaining land for a total distance of between 950 and 1,000 feet.

Appellant contends that the verdict for $35,000 is so excessive as to evince passion and prejudice on the part of the jury. We are unable to agree with this contention. All the witnesses were qualified and used the before and after rule in arriving at the damages. According to appellant's three witnesses, the value of the land before taking was from $95,375 to $102,740; the value of the remaining land after the taking, from $72,307 to $78,990; and the damages from $22,948 to $23,750. Appellee's two witnesses placed the before value at $161,693 and $164,600 respectively; the after value at $118,016.30 and $124,340.40 respectively; and the damages at $43,176.70 and $40,259.60 respectively. Appellant's witnesses valued 110 pecan trees being taken as having a value of $11,000. The jury was justified in finding that the land is physically suitable and well located for subdivision purposes. It was shown that a similar tract comprising 140 acres sold a short time before trial in circuit court for $150,000, with the right reserved to seller to remove the improvements. That tract was about two and one-half miles southeast of appellee's land on the east side of Ridgeland. The Henderson tract, not over one-half mile east of appellee's land, sold shortly before the trial for $818 per acre, and that tract had no improvements of substantial value. Appellant proved several sales of land to the west and north at prices ranging from $250 to $400 per acre. Most of those sales involved lands that are not near as close as appellee's land to the expanding residential area north of Jackson, and the jury was justified in finding that the sales shown by appellee were entitled to more weight in showing the value of appellee's land. The jury's view of the land has added significance in this case, for the highway improvements were in progress when the case was tried. Since the proof is not clear as to the height of all the fills abutting nearly a thousand feet of appellee's land, we are not in a position to say the remaining lands adjoining the improvements were not damaged to a considerable extent. We are unable to say that the verdict was so excessive as to evince passion and prejudice on the part of the jury.

Appellant also contends that the lower court erred in admitting testimony as to a sale of lands near and similar to appellee's land because the sale took place after the filing of the application by appellant for the taking of appellee's land. This sale was of land about one-half mile east of appellee's for $818 per acre. The sale was by Henderson, already mentioned. Appellant contends that since the application to condemn had been filed when this sale was made it was then definitely known that the highway would run through the area, and necessarily affected the sale price of the lands involved. It is contended that the effect of admitting evidence of such sale tended to give appellee the advantage of the increased value of his land by the use to which it is to be put.

The rule is that damages are to be assessed and compensation determined as of the time of the taking. General benefits and injuries resulting from the use to which the land is to be put that are shared by the general public should not be considered in awarding damages in eminent domain cases. Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565. The jury was properly instructed in this respect, and there was no proof of benefits or injuries to the land involved in the Henderson sale resulting from the proposed construction of the highway. We are unable to say that the proposed construction of Interstate Highway No. 55 about a half mile west of the land involved in the Henderson sale either enhanced or depressed its value. The record justified a finding that the new highway, which is to take the place of present U. S. Highway 51, is further away from the Henderson land than present U. S. Highway 51.

There is another reason why it was not error to admit testimony of the sale taking place after condemnation proceedings had been filed. If the value was in fact so enhanced, that fact could have been proved by appellant so as to diminish the probative value of the evidence concerning the sale. Cf. Mississippi State Highway Commission v. Taylor, 237 Miss. 847, 116 So.2d 757, where it was held to be error not to allow the Commission to prove what the landowner paid for the land four and a half years before the trial. The proof in that case showed that in the years intervening between the date of the purchase and the trial land values had increased, a fact which the jury could properly consider.

Appellant next assigns as error the admission of the testimony of Frank Stout, son of appellee, as to the yield of a pecan orchard located on Parcel No. 3. He testified to the actual average yield of the pecan orchard for the past five years. Appellant's witnesses had gone into the matter of the yield of the pecan orchard by comparing appellee's orchard to others, and this is some justification for allowing Frank Stout to testify as to the actual yield. The admission of Stout's testimony did not violate the rule laid down in Board of Levee Commissioners for Yazoo-Mississippi Delta v. Hendricks, 77 Miss. 483, 27 So. 613, where it was said that the yield of land in corn and cotton and the value of an orchard could not be proven by opinion evidence in a case where there was little evidence of the value of the land involved. In Mississippi State Highway Commission v. Rogers, 236 Miss. 800, 112 So.2d 250, it was held that it was error to show the yield or income of property (used for business purposes) as a separate element of damage without reference to the before and after values of the land.

The witness, Frank Stout, properly testified under the before and after rule and the testimony regarding the yield of the pecan orchard was admissible under the circumstances as having a legitimate bearing on the value of the land before the taking. Cf. Mississippi State Highway Commission v. Treas, 197 Miss. 670, 20 So.2d 475, and Board of Levee Commissioners for Yazoo & Mississippi Delta v. Nelms, 82 Miss. 416, 34 So. 149. The before and after taking rule is the ultimate measure of damages. It is not proper to prove as a separate item of damage any item, quality or specific injury; but this does not mean that a witness may not testify concerning any specific quality, item, or specific injury which affects the depreciated market value. 'Although every factor affecting a depreciated market value may be put in evidence, the ultimate issue is the extent of their cumulative impact upon such total valuation.' Wheeler v. Mississippi State Highway Commission, 212 Miss. 606, 55 So.2d 225, 227.

Such testimony is admissible when it affects the before or after value, thus affecting the depreciated value, if the witness testifies in accordance with the before and after taking rule, and connects such specific items with the before and after market values, and considers them only as bearing upon such market values. Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Commission v. Treas, 197 Miss. 670, 20 So.2d 475; Mississippi State Highway Commission v. Strong, Miss., 129 So.2d 349.

Appellant assigns as error the lower court's...