Mississippi State Highway Commission v. Null, 44857
| Decision Date | 20 May 1968 |
| Docket Number | No. 44857,44857 |
| Citation | 210 So.2d 661 |
| Parties | MISSISSIPPI STATE HIGHWAY COMMISSION v. T. C. NULL et al. |
| Court | Mississippi Supreme Court |
Dunn & Singley, Meridian, for appellant.
Gerald Adams, Snow, Covington, Temple & Watts, Meridian, Watkins, Pyle, Edwards & Ludlam, Robert H. Weaver, Jackson, for appellees.
Mississippi State Highway Commission has appealed from a judgment of the Circuit Court of Lauderdale County entered pursuant to a jury verdict returned in an eminent domain proceeding awarding compensation and damages to appellees, T. C. Null and Jim Walter Corporation. Null was awarded $4,500 and Jim Walter Corporation $500. There is no cross-appeal.
Null was the owner, and Jim Walter Corporation, the lessee, of 5.41 acres of commercial property abutting on Tom Bailey Drive and located in a commercial district in the City of Meridian. Two expert appraisers who testified for the commission valued the tract at $133,131 and $130,000, respectively. It was established that the property was suitable for a number of commercial uses, including that of a motel site.
The property condemned consists of an easement for highway purposes twelve feet wide and extending all the way across the 175 foot frontage of the property as it abuts the highway, containing .0482 of an acres. This strip is to be used for construction of a 'frontage' or service road paralleling and servicing the present highway which will run between the Null property and the highway. As stated by appellant:
The construction for which this condemnation proceeding was instituted was the building of the outer lanes or frontage roads of Tom Bailey Drive and the 12 feet being condemned here will be used for the embankment of this outer lane or frontage road. Of this 12 feet, the fill or embankment will occupy only from 4 to 6 feet and the remainder of the 12 feet will remain just as it is and the Commission will make no further use of it.
The easement is described as 'temporary' to expire upon completion of the project, not later than 1970. After construction is completed, however, access to the highway from the Null property, and to the Null property from the highway, will be only from the frontage road and at points designated by the commission.
When Tom Bailey Drive was constructed and its right-of-way acquired, it was a conventional highway in the sense that owners of adjacent or abutting lands had and enjoyed the right of free and direct access to it. Hamilton v. Mississippi State Highway Comm'n, 240 Miss. 895, 128 So.2d 742 (1961). The right-of-way had been acquired from Null's predecessor in title by conveyance. Mississippi State Highway Comm'n v. Spencer, 233 Miss. 155, 101 So.2d 499 (1958); Whitworth v. Mississippi State Highway Comm'n, 203 Miss. 94, 33 So.2d 612 (1948).
In the case here, Null had not actually constructed a driveway from his property directly to the highway, but habitually used the driveway of an adjoining property, in which he was said to own an interest.
When the present proceedings were begun, Tom Bailey Drive was a four-lane highway running generally east and west, with the north lanes separated from the south lanes by a median or neutral strip.
After the verdict was returned, appellant moved for a new trial upon two grounds, first, that it was against the overwhelming weight of the evidence, and second, it was so excessive as to evince passion and prejudice on the part of the jury.
Counsel for appellant, in an able brief, now argue here with great earnestness that the verdicts are grossly excessive as the result of prejudicial errors committed in the trial, and because of which, it is contended, the case should be remanded to be heard by another jury.
Said from matters of prejudice, assigned as error, the fundamental or basic issue presented by the appeal relates to the right of appellees to be compensated for loss or damage of the right of free and direct access to the highway. A resolution of that issue, we believe, will make it unnecessary to deal with the other questions in detail.
Since the right of appellees to recover compensation and damages is, of course, unquestionable under the Mississippi Constitution, this case differs from the usual civil case in that there is no issue as to liability and errors must be considered only as they relate to the amounts awarded. Some of the matters argued, and which we do not reach, otherwise would present more serious questions.
However, most of the difficulty seems to have arisen as a result of the fact that the case was tried in the court below upon two widely divergent theories. It was the position of appellant throughout the trial that appellees were not entitled to recover anything for damages to result from loss or impairment of the right of direct access. Appellees took the opposite view and this difference in the theories held by the adversaries gave rise to most of the questions presented by the appeal.
Appellant's contentions upon the basic issue may be categorized as follows:
(1) Since there was in existence no actual driveway from the Null property to the highway, the taking of the strip and proposed construction would not deprive him of anything in the way of access for which he was entitled to compensation. It is argued that the destruction or impairment of his right of direct access (since it had not been and was not being actually used) was neither compensable as such nor an element of recoverable damages because of a reduction in value of the remainder of the tract.
(2) An order of the commission adopted July 11, 1950, had declared Tom Bailey Drive a 'limited access' highway, thus setting in motion, it is argued, the running of a prescriptive period against Null's right of direct access and, as this had continued for some sixteen years, he was now barred of his right by prescription.
As to the first contention, the fact that the right of direct access was not then in actual use nor evidenced by an existing driveway or entry road in nowise operated to deprive Null of the right. It was an incident of his ownership of the land to be exercised at his will and election.
The second contention is based upon the above order adopted by the commission on July 11, 1950, which declared that Tom Bailey Drive '* * * be designated as a limited access highway in the manner and to the extent shown on the plat attached to said report.'
The plat referred to indicated service drives of 'frontage roads' along and paralleling the present highway.
This order was adopted pursuant to Mississippi Code 1942 Annot...
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Smith v. Mississippi State Highway Com'n, 53493
...103 So.2d 839 (1958). This Court approved as an item of damages inconvenience due to diminution of access in Mississippi State Highway Commission v. Null, 210 So.2d 661 (Miss.1968), and Mississippi State Highway Commission v. Stout, 242 Miss. 208, 134 So.2d 467 (1961). In Null, the property......
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