Mississippi State Highway Commission v. Hillman

• Decision Date: 06 May 1940
• Docket Number: 34137.
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. HILLMAN et al.

195 So. 679

MISSISSIPPI STATE HIGHWAY COMMISSION v. HILLMAN et al.

No. 34137.

Supreme Court of Mississippi, Division A.

May 6, 1940

Appeal from Circuit Court, Greene County; Arthur G. Busby, Sr. Judge.

Eminent domain proceeding by the Mississippi State Highway Commission against Mrs. Abbie Hillman and others to obtain a right of way for a public highway. From a judgment in favor of defendants in the sum of $4,153.35, the Commission appeals.

Reversed and remanded.

Greek L. Rice, Atty. Gen., and E. R. Holmes, Jr., Asst. Atty. Gen for appellant.

O. F Moss, of Lucedale, for appellees.

ANDERSON, Justice.

By means of an eminent domain proceeding the State Highway Commission condemned a right of way for a public highway through the lands of the Hillmans. The cause was first tried in the eminent domain court, resulting in a judgment for the Hillmans in the sum of $3,855.54. The Highway Commission appealed from that judgment to the circuit court where there was a trial and judgment in favor of the Hillmans in the sum of $4,153.35. From that judgment, the Highway Commission appeals to this Court.

The evidence showed without conflict the following facts: The Hillman lands consisted of a farm of 540 acres with a good home and outhouses on it. Approximately 143 acres were in cultivation and 397 acres in woodland and pasture. The right of way condemned goes through the entire farm from east to west, is about a mile in length, and occupied 12 acres. The acreage taken consisted in part of pasture, woodland, and land cultivated in crops. It took in part of the front yard of the Hillman home, as well as the chicken yard. There were also in it some outhouses, part of a tenant house, a great number of oak trees, two fig trees, two apple trees, some pecan trees, and a fish pond. There were 7 acres of the cultivatable land taken worth $50 an acre, and about 6 1/2 acres of woodland worth $10 an acre. The establishment of the highway through the farm made it necessary to build a fence along each side of it-therefore, about 2 miles of fence.

M. L. White, highway engineer and right of way agent for the Highway Commission, testified that the farm was damaged approximately $1,530 by the taking of the right of way. In arriving at the amount of damage, he estimated the woodland to be worth $10 an acre, the cultivatable land $25 to $50 an acre, and the land immediately in front of the home, on which was situated the chicken house, $100 an acre, that there was approximately 1 to 2 acres of this; that the 2 miles of fence would cost 6¢ a foot. That, in arriving at the damage, he took into consideration the oak, pecan, apple, and fig trees destroyed. Two other witnesses testified for the Highway Commission substantially to the same effect.

Lige Hillman, one of the appellees, testified. His testimony was substantially the same as White's with reference to the physical facts, except he added thereto that the fish pond on the place was destroyed. Over the objection of the Highway Commission, he was permitted to testify that in estimating the damages to the place, he took into consideration the replacement cost of the garage, warehouse, chicken house, and outbuildings claiming that the removal of the warehouse, although not destroyed, would be necessary, and also the value of the trees taken, for the 300 pine trees taken, $1 per tree; he fixed the value of the oak trees destroyed at $550; two acres of sodded lawn at $100 an acre; the damage to his warehouse on account of the construction, $436.70, and testified the total damage to buildings was $1,061.70, and that the total damage to the farm was $8,744.89. Then, after naming these specific items of damage, he was permitted to testify over appellant's objection as follows:

" Q. Now what do you figure the total damage to your farm and pasture on account of inconvenience there will be, Mr. Hillman? A. $2085.00.

" Q. Do you have to travel further now to get from that county road there, going back and forth to your house than you did before? A. Traveling on the south side, yes sir.

" Q. That is each time? A. Yes, sir.

" Q. Well, on account of that inconvenience, how much have you been damaged on that account, did you figure that now? A. $500.00."

In other words, the witness was permitted to go further and testify that the was damaged on account of inconvenience something over $2,500. He placed the total value of the farm before the establishment of the highway at $24,220, and afterwards at $15,475.11, therefore, the damage suffered at $8,744. Hillman's testimony was supported by other witnesses testifying for appellees.

It was error to admit evidence with reference to inconveniences resulting to appellees from the establishment of the highway. State Highway Commission v. Chatham, 173 Miss. 427, 161 So. 674; New Orleans, etc., Railroad Co. v. Brown, 64 Miss. 479, 1 So. 673; Yazoo & M. V. R. Co. v. Jennings, 90 Miss. 93, 43 So. 469, 122 Am.St.Rep. 312. Inconvenience is so speculative and unsubstantial that it is not an element of actual damage. It is not susceptible of proof with any degree of certainty. What would be an inconvenience to one person might not be to another. The measure of damages in a condemnation proceeding is the difference between the fair market value of the land before the taking and the fair market value of what remains after the taking. State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277; State Highway Commission v. Williamson, 181 Miss. 399, 179 So. 736, and other decisions of our Court referred to in the opinions in those cases. The evidence of damages resulting from inconvenience was brought out in such a manner as that the jury might have reasonably reached the conclusion that it was to be added to the actual damages shown.

Appellant assigns as error the action of the Court in admitting over its objection the cost of re-location and re-construction of buildings destroyed. Such cost does not constitute the measure of damages. The depreciation must be taken into consideration. The measure, as above stated, should be the value of the property after the taking as compared with its value before. Mississippi State Highway Commission v. Smith, Miss., 192 So. 448.

The Court gave the following instructions for the defendants, the giving of which appellant argues was error upon the ground that they are conflicting: " The defendants are entitled to due compensation, not only for the value of the property to be actually taken as specified in the application, but also for damages, if any, which may result to them as a consequence of the taking; and you are not to deduct therefrom anything on account of the supposed benefits incident to the public use for which the application is made."

" The court instructs the jury for the defendants that the measure of damages in this cause is the difference between the fair market value of the property before taking and the fair market value of what remains after the land is taken and said public road constructed, or the difference between the fair market value of the entire tract before and after the taking and construction of said public road."

The first instruction was expressly authorized by the statute-Section 1491 of the Code of 1930. It required damages to be fixed at the value of the property after taking as compared with its value before, leaving out of consideration any benefits to the landowners as the result of the establishment of the highway. The second instruction does not in express terms bar the landowners from being charged with the benefits in fixing the damages. It is argued that for that reason the instructions are in conflict. It is not necessary to pass on that question because whatever conflict there is, if any, was without harm to the highway commission. It is to be presumed, the contrary not appearing, that in the cases above referred to, the statutory instruction was given. The language of the opinions in those cases therefore must be construed in connection with that presumption.

The refusal of the...