Mississippi State Highway Commission v. Strong

• Decision Date: 17 April 1961
• Docket Number: No. 41770,41770
• Citation: 129 So.2d 349,240 Miss. 756
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. Richard STRONG and Mary Jo Strong.
• Court: Mississippi Supreme Court

Page 349

129 So.2d 349

240 Miss. 756

MISSISSIPPI STATE HIGHWAY COMMISSION v. Richard STRONG and Mary Jo Strong.

No. 41770.

Supreme Court of Mississippi.

April 17, 1961.

Dent, Ward, Martin & Terry, Vicksburg, Joe T. Patterson, Atty. Gen., by Matthew Harpter, Jr., for appellant.

RODGERS, Justice.

The Mississippi State Highway Commission filed its petition in the County Court of Warren County against Mr. Richard Strong and his wife Mary Jo, in which the condemnation of 19.56 acres of land belonging to Richard Strong is sought for highway purposes. Mrs. Strong filed a disclaimer, in which she affirms that she has no interest in the land sought to be taken. The case was tried before a jury and resulted in a verdict for the landowner in the sum of $14,470. The Circuit Judge affirmed the judgment of the county court, and the Highway Commission has appealed to this Court.

The property sought to be condemned by the Mississippi State Highway Commission is located three or four miles east of Vicksburg, Mississippi, and is on the north side of the present U. S. Highway 80. The land sought to be taken runs in an easterly and westerly direction across the north end of Mr. Strong's lot of land. It is being taken for highway purposes, and for a rest area to be used as a part of the limited access Interstate Highway System. The landowner will not be given direct access to the new highway from his property. The strip of land sought to be taken is 228.1 feet wide along the west side of Mr. Strong's land and is 639 feet wide on the east side, and is 1700 feet long, and contains 19.26 acres of land in area.

The appellant Mississippi State Highway Commission complains that the trial court committed reversible error by allowing (1) certain testimony to be introduced over the objection of the appellant, (2) granted an erroneous instruction at the request of the appellee, (3) refused an instruction presented for the appellant, (4) that the verdict of the jury was so excessive as to evince passion and prejudice on the part of the jury, and appellant's motion for a new trial should have been sustained.

The appellant's right of way agent, Mr. Shelby Drummond, testified as to the location, grade, area, and contour of the property sought to be taken. He testified that certain fences located on the land would be taken, but denied that the lakes would be damaged. He was not permitted to testify that a lake located on this property was used in connection with the landowner's tourist court business, which was located on his wife's land adjacent to the property sought to be taken. He admitted to the jury that the landowner would not have direct access to the new road. Mr. Frank Lacy, appellant's district engineer, testified among other things that the ponds on the property of the landowner would not be damaged. He said: 'It won't hurt his lake', 'None of the water will drain toward the lake'. Mr. Sam Kliesdorf, a resident of Vicksburg, is a real-estate appraiser. He was offered as an experienced appraiser and an expert witness. He gave a resume of the items used in his overall valuation as being: 22 acres of woodland, 35.6 acres of open land, [240 MISS 762] and 8 acres of front land. He said there were no houses on the property; that there was a fence and some ponds. He valued the 2035 feet of fence at $818.00; the pond at $4,300.00; a well made necessary because of loss of surface drainage, at $750.00. He said part of the land was worth $250.00 per acre, and part of the land was worth $150.00. This witness then gave his estimate and appraisal of the whole tract of land before the taking to be $32,500.00, and the value after the taking to be $27,508.00, or a damage to the whole property of $4,992.00.

The landowner introduced certain witnesses to contradict the valuation of the items used by te appellant's witness in making up his overall valuation before and after taking. A Mr. Vance, who was a contractor of long experience and who constructed the large lake in 1947, was introduced, but he was not permitted to testify about the cost of construction, evidently upon the ground that it was too remote to prove present value. He was then asked the present value, and replied 'I don't know the value of the lake. I know approximately what it would cost to build a lake today.' The question was then asked: 'What would it cost to build that lake as it is today?'--to which the witness answered 'About $9,500.00.' The appellant's objection to this evidence is: 'Such testimony should not have been admitted as there was no proof that the lake would be destroyed or that it would have to be rebuilt.' We do not believe this testimony could have misled the jury; because it was apparent that the landowner was attempting to prove by Mr. Vance the before taking overall value of the lake, not for the purpose of rebuilding it, but to show that it was obviously worth more than the $4,300.00 the highway appraiser used as his item in calculating his overall value. Evidence was also introduced from which the jury could have believed this valuable item would be damaged by the construction of the highway.

The Mississippi State Highway Commission also complains that Mr. Strong, the landowner, should not have been permitted to testify what a 4 inch well cost dug on the property of his wife; because it was said the highway department calculated he should be permitted damage for the loss of surface drainage to the extent and size of a 2 inch well. The appellant would be right if it were true that the landowner was bound by the calculation of the appellant as to the size of the well needed, but we do not believe that the jury was misled by this testimony, they went upon the ground and saw for themselves the apparent need for a well. 18 Am.Jur., Eminent Domain, Sec. 355, p. 999. If this were error, it was harmless.

The appellant complains that Mr. Hall a realtor of Lauderdale County, was permitted, after being qualified, to testify that the land, as a whole, 'was worth $350.00 per acre disregarding the pond'. This is in contradiction of the item used by the Mississippi State Highway Department's expert witness that some of the land was worth $250.00 per acre and some worth $150.00 per acre. We see no error in defendant landowner being permitted to contradict this item of value used by the witness for the appellant in reaching his overall value of the property. The witnesses introduced to prove the value of the property are sometimes called expert witnesses, but this is a misnomer, for no peculiar ability or specialized training is required to testify as to the market value of property. It is expressed by the text writer in 18 Am.Jur., Eminent Domain, Sec. 355, p. 1000, as follows: 'It is, of course, proper to determine the qualifications of such witnesses before their testimony as to value is received. It will not be presumed that a witness is competent to give an opinion, but it must be shown that he has some peculiar means of forming an intelligent, correct judgment as to the value of the property in question or the effect upon it by a particular improvement, beyond what is possessed by men generally. It is apparent that the...