Mississippi State Highway Commission v. Spencer, 44893
| Decision Date | 29 April 1968 |
| Docket Number | No. 44893,44893 |
| Citation | 209 So.2d 821 |
| Parties | MISSISSIPPI STATE HIGHWAY COMMISSION v. John B. SPENCER et ux. |
| Court | Mississippi Supreme Court |
J. W. Kellum, Carlton & Henderson, Sumner, for appellant.
John W. Whitten, Jr., Sumner, for appellees.
Appellees were the owners of 79.41 acres in Tallahatchie County which was bounded on the west by Mississippi Highway Number 35 and on the north by Hubbard Creek running from the highway in a southeasterly direction. The Highway Commission filed these proceedings to condemn .59 acres situated in the northwest corner of this property. On appeal from the special eminent domain court to the Circuit Court of the First Judicial District of Tallahatchie County, appellees were awarded a judgment of $8,000. From this judgment the Commission appeals here. The case is affirmed.
While the judgment may appear high or excessive for .59 acres of land, the situation here was somewhat unusual. The jury in the special proceedings awarded $7,500; and on appeal, after hearing the evidence and viewing the premises, the jury of the circuit court awarded $8,000. A motion was made before the lower court to set aside the verdict and grant a new trial on the ground that the verdict was excessive, but the circuit judge who heard the case overruled the motion and held the judgment was not excessive.
At the northwest corner of appellees' property there was crossing Hubbard Creek a one-lane bridge constituting a part of Highway 35. The Highway Commission desired a tract of land 92 feet wide at the north end, 70 feet wide at the south end, and approximately 600 feet long from north to south, the bridge being at the north end of the strip. The purpose of the taking was to build a two-way bridge, to widen the highway, and to provide necessary approaches to the new structure.
The engineer for the highway department testified that the plans called for two phases of work. The first phase was the erection of the two-way bridge and such work as was necessarily incidental thereto. The first phase would also consist of the extension southward of the work through the north entrance of the driveway to appellees' home. The second phase, when and if completed (the plans apparently being indefinite), called for the work to be extended across the south entrance of the appellees' driveway. Thus the yard of appellees would be torn up twice provided the second phase was completed.
Appellees had a few years previously built a residence containing two bedrooms, two ceramic tile baths, a carport with a storage room, other usual rooms, and a water system at an expense of $21,000. They had filled and graded the lands in front of the house between it and the highway so as to improve the lawn, but without affecting the considerable rise from the present highway to the residence. It was shown that in bad weather, appellees presently had trouble approaching their house because of said rise. There was a circular driveway entering the south end of the yard, making a circle up the rise to the house, and continuing back to the highway on the north side of the yard. The lands sought to be condemned did not extend across the entire front yard but left a strip thirty feet wide adjacent to the south end of the land condemned, which strip extended to the highway. It was shown that when the road was completed there would be about a four-foot drop to the bottom of the ditch and the road would be raised about two feet. It was testified that the construction of the road would make the approach to the house steeper than it presently was.
The only witness as to values introduced by the Commission was Mr. Wade Wineman. He testified the face of the house when the road was constructed would be 82.3 feet from the right-of-way. He also testified that the east edge of the road would be 50 feet from the line of the yard and that the ditch would be 32 feet wide. He admitted there was presently a steep slope and that the construction of the road would increase this slope. Mr. Wineman, the Commission's appraiser, admitted the difficulties of traveling the driveway in bad weather. He put the fair market value of the property at $40,900 before the taking and after the taking at $39,100, saying thereby that the amount due the Spencers for the taking was $1,800.
The Commission rested after the testimony of its engineer and the introduction of pictures which depict the house, the driveway, the yard, and the slope of the property. The property to be taken was marked by stakes.
Mr. John B. Spencer, Jr., testified he was branch manager at that time of the Greenwood Production and Credit Association. He said that the residence on the place was a brick veneer dwelling on a concrete slab, with a composition shingle roof, two large bedrooms, about 1500 square feet of heated area, two ceramic tile baths, a 20 20 carport and storage room, and a circle driveway constructed of gravel. This witness had served as a Federal Land Bank appraiser in Louisiana, Mississippi and Alabama for three years; and, at the time of this trial, he made appraisals for the credit association for land loans. His value of the property before the taking was $42,000 and after the taking, $30,000, the difference in value being $12,000. He based his testimony upon the facts that a large part (one-half) of the front yard would be taken along with some pecan and oak trees, that the slope to the house would be increased, that the removal of fencing would be required, and that the lawn would be narrow and unsightly. He further stated that a factor in his evaluation was that a strip 30 feet wide remained on the south side of that taken, extending to the present highway and leaving the yard in the shape of an 'L.'
Mr. John B. Spencer, Sr., testified he owned a Western Auto store in Charleston and was also employed as a resident engineer on...
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Potters II v. State Highway Com'n of Mississippi, 90-CC-1096
...practice that a landowner may give his opinion of the fair market value of his property. See, e.g., Mississippi State Highway Commission v. Spencer, 209 So.2d 821, 824 (Miss.1968); Mississippi State Highway Commission v. Magee, 186 So.2d 238, 239 (Miss.1966). This does not, however, mean th......
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