Mississippi State Highway Commission v. Hillman

• Citation: 198 So. 565,189 Miss. 850
• Decision Date: 11 November 1940
• Docket Number: 34137
• Court: United States State Supreme Court of Mississippi
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. HILLMAN et al

198 So. 565

189 Miss. 850

MISSISSIPPI STATE HIGHWAY COMMISSION v. HILLMAN et al

No. 34137

Supreme Court of Mississippi

November 11, 1940

[Copyrighted Material Omitted]

APPEAL from the circuit court of Greene county, HON. ARTHUR G BUSBY, 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. A judgment for the defendant in the sum of $ 4, 153.35 was reversed and remanded by Division A of the Supreme Court, 195 So. 679, not reported in State reports, and the appellees filed a suggestion of error. Suggestion of error overruled and former opinion withdrawn and opinion on suggestion of error substituted therefor.

Suggestion of error overruled.

E. R. Holmes, Jr., Assistant Attorney-General, for appellant.

The court erred in giving for the defendants both of the instructions shown on pages 315 and 316 of the record respectively, for the reason that the two instructions state two different and distinct formulas for measuring damages, State Highway Commission v. Randle, 180 Miss. 834, 178 So. 486; and for the further reason that the words, "and construction of said public road" in the instruction on page 316, are inaccurate, State Highway Commission v. Prewitt, 192 So. 11.

The court erred in refusing appellant the instruction shown on page 319 of the record as to burden of proof.

State Highway Commission v. Williamson, 181 Miss. 399, 179 So. 736.

The court erred in refusing to sustain appellant's objection to testimony as shown throughout the record and in refusing to sustain appellant's motions to exclude, as shown in the record. This is particularly true as to the following testimony:

(a) The replacement costs, which were admitted. State Highway Commission v. Blackburn, 172 Miss. 554, 160 So. 173. (b) The testimony with reference to the value of quietude, beauty and privacy and with reference to the dust on the new road. State Highway Commission v. Chatham, 173 Miss. 427, 161 So. 674. (c) The uncertain, remote, and speculative testimony of the witnesses with reference to inconvenience, driving cattle across the road, etc. State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277; State Highway Commission v. Handle, supra; State Highway Commission v. Day, 181 Miss. 709, 180 So. 794. (d) The testimony allowed in the form of separate items of recoverable damage in addition to the testimony as to general damage and inconvenience was improper and inadmissible and was a pyramiding of damages. State Highway Commission v. Day, supra. (e) The cost figures which were admitted over objection as to the expense of re-locating buildings were improper and inadmissible. State Highway Commission v. Smith, 192 So. 448; Highway Commission v. Corley, 191 So. 119.

The verdict of the jury was excessive, being based on a mass of pyramided figures consisting of irrelevant facts and fanciful speculations.

State Highway Commission v. Randle, 180 Miss. 834, 178 So. 486; State Highway Commission v. Day, 181 Miss. 709, 180 So. 794.

The measure of damages in a condemnation suit in Mississippi is fixed first by the Constitution of 1890, Section 17. The framers of the Constitution simply said that the owners were entitled to "due compensation." Subsequently, in carrying out the constitutional mandate, the Legislature passed Chapter 26 of the Mississippi Code of 1930 and provided that "due compensation" should be measured by (1) the value of the property taken, plus (2) resulting damages to the remainder. The court, in construing Section 17 of the Constitution and Section 1491 of the Code, said, in City v. Higgins, 81 Miss. 376, 33 So. 1, that the true rule of estimating damages in condemnation cases was the difference in the market value of the property before and after the taking without considering general benefits or injuries shared by the public in general. This case was followed and quoted from in Schlicht v. Clark, 114 Miss. 354, 75 So. 130. This court further said in that case that the particulars or details as to the damaging of the property is not admissible as independent items of damage. Following City v. Higgins and Schlicht v. Clark a number of highway cases came before this court for consideration, and in many of these cases the statutory instruction found in Section 1491 was given to the jury as the measure of damages. In others the instruction with reference to the fair market value before and after the taking was given, and in several of them both instructions were granted. It has always been my contention that both of these formulas amount to exactly the same thing.

Speaking of the formula which he calls "difference between the fair market value of the property before and after the taking, " Orgel in his "Valuation under Eminent Domain, " section 50, page 158, says: "This formula has been applied by a number of courts. Whether or not it is simply another mode of expressing 'value of the land taken, plus damages to the remainder' is a difficult question, requiring a close study of the cases. From the viewpoint of a value theorist, at least, it is far more satisfactory than the more usual formula, for it recognizes the artificial nature of the dichotomy required by the latter."

It is our contention and conclusion, from reading parts of Orgel on Eminent Domain, that this court has been correct in its interpretation of the general rule, which is that due compensation, as defined by our Constitution, may be measured either by (1) the value of the land taken, plus damages to the remainder, or by (2) the difference between the market value of the whole property before and after the taking. In specific cases this court has seen fit to exclude from the consideration of the jury certain elements of damage as are discussed in Orgel's work. Damages which might mislead the jury, damages which are remote, speculative, etc., have been excluded.

State Highway Com. v. Brown, 176 Miss. 23, 168 So. 277; State Highway Com. v. Chatham, 173 Miss. 427, 161 So. 674; Highway Com. v. Day, 181 Miss. 709, 180 So. 794; Highway Com. v. Randle, 180 Miss. 834, 178 So. 486.

So we say that this court has taken the true formula for measuring the damages in eminent domain cases and has, as was necessary, applied this formula to each particular case as it arose. It is our contention that the court has properly applied the formula in every one of about twenty-five highway department cases.

In following the true formulas for arriving at due compensation in condemnation cases this court has held that damages which are speculative and remote are not admissible.

In the case of Mississippi State Highway Commission v. Williamson, 181 Miss. 399, 179 So. 736, appellees say that this court held that inconvenience was an element of damage. This court did not so hold. The inconvenience shown in the testimony of the witnesses in the instant case was a mere personal, speculative, and remote inconvenience, which might or might not occur in the future. The interference shown in the Williamson case was a concrete physical invasion of Williamson's property rights.

J. W. Backstrom, of Leakesville, for appellant.

It is unfair to allow the owner full damages for adjoining property without taking into consideration the benefits or the enhanced value of the adjoining parts by reason of the improvements. This to my mind is sound and is supported by authority from other states.

18 Am. Jur. 945, secs. 301, 302; Ala. Power Co. v. Keystone Lime Co., 191 Ala. 58, 67 So. 833; Ann. Cas., 1917C, 878; Schroeder v. Joliet, 189 Ill. 48, 59 N.E. 550, 52 L. R. A. 634; Metropolitan West Side Elev. Co. v. Stickney, 150 Ill. 362, 37 N.E. 1098, 26 L. R. A. 773; Washington Ice Co. v. Chicago, 147 Ill. 327, 35 N.E. 378, 37 Am. St. Rep. 222; Wabash St. L. & P. R. Co. v. McDougall, 126 Ill. 11118 N.E. 291, 1 L. R. A. 207, 9 Am. St. Rep. 539; Manning v. Shreveport, 119 La. 1044, 44 So. 882, 12 L. R. A. (N. S.) 452; Putnam v. Douglas County, 6 Ore. 328, 25 Am. Rep. 527; County Ct. v. Force, 106 W.Va. 581, 146 S.E. 530; Gosa v. Milwaukee Light, Heat & Traction Co., 134 Wis. 369, 114 N.W. 815, 15 L. R. A. (N. S.) 531; Driver v. Western U. R. Co., 32 Wis. 569, 14 Am. Rep. 726.

There can be no question but the burden of proof is upon the Highway Commission to show its right to condemn and the description of the properties sought to be condemned, but when the condemnor shows the right to condemn and describes the property, we submit that the burden of proof as to the amount of damages then shifts to the defendant. This is reasonable, and it is sound. The theory of a law suit, and rightly so, is that each side presents the facts and the law applicable to that side, and the court and jury after hearing the evidence propounded by each side are then in a position to render a just and fair verdict. If the burden of proof is on the condemnor to show the damages he is placed in an awkward attitude of trying to show the jury the amount of damage he should pay for the property.

18 Am. Jur. 986, sec. 342; Lebanon & Nashville Turnpike Co. v. Creveling, 17 S.W.2d 22, 65 A. L. R. 440; 2 Nichols on Eminent Domain (2 Ed.), 1139, sec. 432; Eastern Tenn. Power Co. v. Cleage, 5 C. C. A. 417; Tenn. C. R. Co. v. Campbell, 109 Tenn. 640, 75 S.W. 1012; Alloway v. Nashville, 88 Tenn. 510, 8 L. R. A. 123, 13 S.W. 123; Kansas City and Granview Railroad Co. v. Heake et al., 53 S.W.2d 981, 84 A. L. R. 1477; Cape Girardeau & C. R. Co. v. Blechle, 234 Mo. 471, 481, 137 S.W. 974.

Inconvenience can never be an item of damage any more than quietude and seclusion of the property as was held in the cases of State Highway Commission v. Chatham, 161 So. 674 174 Miss. 427, and State Highway Commission v. Randle, 178...