Mississippi State Highway Commission v. Tomlinson

• Citation: 78 So.2d 797,223 Miss. 623
• Decision Date: 28 March 1955
• Docket Number: No. 39571,39571
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION et al. v. S. B. TOMLINSON et ux.
• Court: United States State Supreme Court of Mississippi

Page 797

78 So.2d 797

223 Miss. 623

MISSISSIPPI STATE HIGHWAY COMMISSION et al. v. S. B. TOMLINSON et ux.

No. 39571.

Supreme Court of Mississippi.

March 28, 1955.

Smith & Hurdle, Holly Springs, J. P. Coleman, Atty. Gen., by Matthew Harper, Asst. Atty. Gen., for appellants.

Fant & Bush, Holly Springs, for appellees.

HALL, Justice.

In 1949 the Mississippi State Highway Commission duly adopted an order authorizing the institution of an eminent domain suit against the appellees for the appropriation of 0.46 acres of land for construction of State Highway No. 4 'as more particularly shown by the plans and specifications for said project on file in these offices, which plans and specifications are made a part hereof by reference.' Pursuant thereto a suit was instituted and a copy of said order was attached. The plans and specifications called for a present increase of four feet in the elevation of the grade of the highway adjoining appellee's remaining property not appropriated and for an additional raise of approximately four feet in grade as 'probable future construction.' In the special court of eminent domain the jury awarded damages to appellees in the sum of $2,500 from which there was an appeal to the circuit court. At the August 1949 term a stipulation was entered into between the parties that a judgment be there entered for $3,500 damages on condition that appellees be permitted within twenty-one days thereafter to remove all buildings from the land appropriated. On the same day the matter was submitted to a jury on this stipulation and a verdict for $3,500 was returned. On the same day a judgment was entered 'fixing the due compensation and damages for said defendants at Three Thousand Five Hundred Dollars' and authorizing the applicant to enter upon and take possession of the property condemned 'and appropriate it to public use as prayed for in the application and in accordance with the stipulation filed in this cause upon payment to the defendants of the above judgment of $3,500.00.'

The judgment was paid and the highway commission, by its contractor, entered upon the land and raised the grade four feet approaching an old bridge which spanned two railroad tracks, and hard surfaced the new grade. The date when this work was completed is not shown by the record.

In 1952 the highway commission, through its contractor, again entered upon the land and constructed a new bridge over the railroads which was four feet higher than the old bridge and they raised the grade of the highway approaching the bridge a maximum of four feet additional. Appellees then brought suit against the highway commission and its contractor for $7,500 damages for this increase in grade opposite their property and recovered a judgment for $5,000 from which both the highway commission and its contractor appeal.

Several grounds for reversal are assigned but we think it necessary to consider only one which is that the appellants were entitled to a peremptory instruction which was requested in and refused by the lower court. In considering this point it must be remembered that no additional land has been taken from appellees and that in raising the grade four feet for the second time the commission was only doing what was foreshadowed by the original plans and specifications for the first project which was before the...