Mississippi State Highway Commission v. Colonial Inn, Inc., 42465

Decision Date18 February 1963
Docket NumberNo. 42465,42465
Citation246 Miss. 422,149 So.2d 851
PartiesMISSISSIPPI STATE HIGHWAY COMMISSION v. COLONIAL INN, INC., et al.
CourtMississippi Supreme Court

Jacobs, Griffith & Hatcher, Cleveland, for appellant.

Alexander, Feduccia & Alexander, Cleveland, for appellees.

ETHRIDGE, Justice.

This is an eminent domain proceeding brought by the Mississippi State Highway Commission, appellant, in the County Court, Second District of Bolivar County, against Colonial Inn, Inc. and other owners of interests in the real property. The jury returned an award of $20,000, but the circuit court, on appeal, ordered a remittitur of $10,790, thus allowing Colonial Inn damages of $9,210. From this judgment the Commission has taken a direct appeal, and Colonial Inn a cross appeal.

U. S. Highway 61, running in a northsouth direction through the City of Cleveland, is intersected by State Highway 8, running in a east-west direction. On the north-west corner of this intersection is a gasoline service station, and north and west of this is the Colonial Inn, a motel. All of this property is on sixteenth section, school land, in which appellees held an unexpired leasehold interest with approximately twenty-three years remaining. Bolivar County owns the reversionary interest. With the Colonial Inn property being located on the west, Highway 61 has a present width of 80 feet. It consists of a two-lane concrete road, 24 feet wide. Under the new plans, a 14-foot safety or median strip is to be constructed along the center of the highway. There will be two traffic lanes on the east side of this median strip and two on the west side. All northbound traffic will travel on the east side, and southbound on the west side.

The construction plans call for a turning lane on the west side of Highway 61, beginning several hundred feet north of the Highway 8 intersection, to be used by southbound traffic, which would be able to turn west into Highway 8 and the city, without being controlled by a traffic light at the intersection.

There are thirteen motel units in a northsouth line along the west side of Highway 61. These units face west, with their backs toward Highway 61. Other motel units form an open square on the north, west and south sides of the property. The proposed turning lane for a west turn on Highway 8 into the city begins at a point about 138 feet north of the southernmost of the thirteen motel units, adjacent to Highway 61. It starts at a point opposite the No. 6 motel unit, counting from south to north, of the thirteen units, and slants in a southwesterly direction for 50 feet. From there to the south, the extra property taken by the turning lane consists of a strip of land 5 feet in width, and 159 feet in length. North of this is a traingular piece with a 5-foot base and 50 feet in length. Also taken by the Commission was an easement held by Colonial Inn in a strip of land 20 feet in length and 5 feet in width, which was also used for ingress and egress to the motel, at the south end of the land taken. The total area taken is approximately .02 of an acre. The south 40 feet of the 5-foot strip taken is presently being used as part of a driveway into the motel.

Of the 5-foot-wide strip being taken, the west 3 1/2 feet, nearest the motel, will be used for drainage purposes. When drainage is constructed, sod will be placed over this 3 1/2 foot area. The next 6 inches of this 5-foot strip will be curb for the new highway. The east 1 foot of the 5-foot strip will be part of the concrete slab used as the turning lane, which southbound traffic will use when it intends to turn right into the city. The Colonial Inn consists of 52 motel units. Its entrance is on Highway 61 near the intersection of Highwavs 8 and 61. Prior to the taking, the western walls of the 13 motel units near the highway were 45 feet from the concrete travelled portion, and 14 feet from the highway property line. The property line of the highway, by the condemnation, was moved from 14 to 9 feet from the walls of the units next to Highway 61. The travelled portion of the highway, 45 feet from the wall of the motel before the taking, was moved to 13 feet from it, after the taking.

Four appraisers testified. Three of them, for the Commission, concluded, under the before and after rule, that appellees' total damages aggregated, respectively, $2,610, $1,595, and $1,700. They did this by subtracting from the damages the value of the reversionary interest of Bolivar County, and adding special damages to shrubbery and cost of moving a sign.

Appellees' only expert witness on damages was Jack K. Mann, an experienced appraiser, who stated the following: The motel has three functional deficiencies: location of the entrance near the intersection of two highways, making it difficult to get in and out; the proximity of 13 motel units to the highway, including the fact that baths and closets are constructed on their west rather than east sides, and do not serve as a buffer to noise and vibration; and the identification of the entire property 'is rather poor. It is hard to see.' Appraising the market value of this commercial property, Mann thought that reproduction cost less depreciation should not be given much weight; the market approach, sales of similar property, was not available. He estimated the annual income, based on audited figures and expenses, arrived at the net income, and through a capitalization process converted that into an indication of value. It was 'the best criterion of value on this property.'

The market value of the property before the taking was $230,500, and after it, $183,500, or a difference of $47,000. There were two elements of damage: (1) That resulting from installation of the median strip in the highway, which, Mann correctly concluded was a non-compensable item. Muse v. Mississippi State Highway Comm., 233 Miss. 694, 103 So.2d 839 (1958). (2) The damage attributable to proximity of the highway traffic after the taking, as contrasted with what it was before. As 'primarily a judgment figure,' he concluded that $7,400 of the $47,000 was attributable to taking of the 5-foot strip. The highway pavement was being moved 32 feet closer to the motel, but most of that was being placed on the present highway right-of-way. The remainder, 5 feet, which was being taken, was approximately 15% of the aggregate additional pavement of 32 feet. The compensable severance damage was $5,200, the value of the part taken, $2,200, totaling $7,400 damages. If the Commission were not taking the five feet, there would be no compensable severance damages. His opinion of the depreciated cost of the sign was $850, without particular reference to raising or moving it.

First. The circuit court, reducing the judgment to $9,210, computed it in this manner:

                Compensable severance damages    $5,200
                Value of land actually taken      1,710
                Cost of moving and raising sign   2,200
                Cost of moving shrubs               100
                                                 ------
                  Total                          $9,210
                

The trial court concluded that the jury would have been justified in finding this amount as damages. The judgment of the circuit court, ordering a new trial unless the stated remittitur was accepted, should be affirmed. The general rule is that the action of a trial court upon a motion for a new trial is to be favorably considered upon appeal and supported, unless manifest error appears, or unless its action in sustaining the motion shows a manifest abuse of discretion. This rule is particularly applicable where a new trial has been granted, since in such cases the rights of the parties are not finally settled, as they are where a new trial is refused. Womble v. Mississippi State Highway Comm., 239 Miss. 372, 123 So.2d 235 (1960). The order for a new trial, unless remittitur was accepted, was not manifestly erroneous or an abuse of discretion, but was entirely justified.

R. N. Bond, staff appraiser for the highway department, fixed $1,710 as value of the land actually taken by the Commission in this proceeding, under...

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16 cases
  • State by Com'r of Transp. v. Carroll
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    ...309, 48 Cal.Rptr. 672 (1966); City of Lakewood v. DeRoos, 631 P.2d 1140 (Colo.Ct.App.1981); Mississippi State Highway Comm'n v. Colonial Inn, Inc., 246 Miss. 422, 149 So.2d 851 (1963). There are decisions that permit compensation only if the entire beneficial use of the property is destroye......
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    ...amounts to damage that is special to the landowner and does not apply to the public generally. In Mississippi State Highway Commission v. Colonial Inn, 246 Miss. 422, 149 So.2d 851 (1963) and Mississippi State Highway Commission v. Gipson, 240 So.2d 620 (Miss.1970), damages were allowed for......
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    ...State Highway Commission v. Hall, 252 Miss. 863, 871-75, 174 So.2d 488, 492 (Miss.1965); Mississippi State Highway Commission v. Colonial Inn, Inc., 246 Miss. 422, 431-32, 149 So.2d 851, 855 (1963). The before and after rule "swallows and absorbs" all specific elements of damages. Mississip......
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