Mississippi Transp. Com'n v. Fires, 95-CA-00624-SCT

• Decision Date: 08 May 1997
• Docket Number: No. 95-CA-00624-SCT,95-CA-00624-SCT
• Citation: 693 So.2d 917
• Parties: MISSISSIPPI TRANSPORTATION COMMISSION v. Earlie Stancel FIRES, and wife, Kathleen Diane Fires.
• Court: Mississippi Supreme Court

Page 917

693 So.2d 917

MISSISSIPPI TRANSPORTATION COMMISSION v. Earlie Stancel FIRES, and wife, Kathleen Diane Fires.

No. 95-CA-00624-SCT.

Supreme Court of Mississippi.

May 8, 1997.

Tim Waycaster, Waycaster & Warren, Jackson, for appellant.

B. Sean Akins, Fortier Akins & Kitchens, Ripley, for appellee.

Before SULLIVAN, P.J., and McRAE and JAMES L. ROBERTS, Jr., JJ.

McRAE, Justice, for the Court:

This is an appeal of an eminent domain case in the Special Court of Eminent Domain of Tippah County, Mississippi. The subject property was condemned by the Mississippi Transportation Commission, pursuant to the statutory "quick take" procedure, and the only issue at trial was the determination of the amount of just compensation to be paid to the landowners, Earlie Stancel Fires and Kathleen Diane Fires, for the taking of the property. On appeal, the Commission argues that the trial court erred in allowing a departure from the before and after rule, in allowing testimony regarding a highest and best use other than the subject property's current use without the proper predicate, and in allowing testimony concerning sales of property not comparable to the subject property. We find no error in the proceedings below, and we will affirm the jury award of $57,620 to the appellees.

I. BACKGROUND

This condemnation proceeding was instituted in the Special Court of Eminent Domain of Tippah County, Mississippi by the Mississippi Transportation Commission on November 9, 1994. On January 24, 1995, the court appointed Bruce Dillingham, an independent appraiser, to value the property to be condemned. Dillingham valued just compensation at $41,844. The court issued the Order Granting the Petitioner (the Highway Commission) Right of Immediate Title and Possession on March 12, 1995. On March 23, 1995, the Mississippi Highway Commission, in accordance with Miss.Code Ann. 11-27-85, deposited $35,567.40 with the Circuit Clerk of Tippah County.

The property which the Commission sought to condemn was a 28.4 acre parcel along the north and south side of U.S. Highway 72 in an unincorporated area of Tippah County. The subject parcel was part of a larger tract consisting of 298.7 acres which belonged to the appellees, Earlie Stancel Fires, and his wife, Kathleen Diane Fires. At the time of the filing of the Commission's petition, the subject 28.4 acres was unimproved and consisted of timber land. One acre of the larger tract was used for residential purposes prior to the condemnation of the 28.4 acre parcel. This one acre contained a one-story frame residence and brick barn.

The distinction between the two parts of the tract is based on differences in the nature of the property's terrain. The property to be condemned consists of very flat land, while the remaining 270.3 acres is unlevel, with hills and ridges. The subject 28.4 acres of frontage along Highway 72 has access to utilities, it lies between residential areas, and the terrain is very flat. Both parties stipulated that the remaining 270.3 acres of land would not be damaged or affected by the condemnation proceedings. Both parties also stipulated that the remaining parcel had a highest and best use as agricultural or timber land.

At trial on May 9 and 10, 1995, both the Mississippi Transportation Commission and the landowners, the Fires, presented expert testimony from real estate appraisers regarding the amount of just compensation to which the Fires were entitled as a result of the taking of their property.

The Commission's appraisal expert, Melisande Stephens, determined that the highest and best use of the subject 28.4 acres was as agricultural and timber land and appraised it as such in its before-condemnation condition. In fact, Stephens made no distinction between the subject and remaining parcels of land, with regard to highest and best use. Using sales of comparable property, she assigned a value of $600 per acre to the subject parcel. Upon consideration of additional elements of value, Stephens arrived at a total before value for the entire 298.7 acres of $227,160. She valued the same property in its after-condemnation condition, considering the condemnation of the 28.4 acre parcel, damage to fencing, and temporary easements. Stephens arrived at an after-condemnation value of the property of $206,160. The difference in the before and after values was $21,000, and Stephens testified that $21,000 constituted just compensation for the condemnation of the Fires's 28.4-acre parcel.

The appraiser for the Fires, Johnny Coombs, appraised the 28.4 acres to be condemned. He did not issue a written appraisal for the entire 298.7 acres prior to the take or the 270.3 acres remaining after the take. He testified that the highest and best use of the 28.4 acres was as residential property and that the remaining 270.3 acres was agricultural or timberland, unaffected and undamaged by the take. Coombs also testified that the highest and best use of the property was as residential lots. His opinion as to the value of the land was based on comparable sales of residential property and his determination was $2,000 per acre, with just compensation for the taking of the Fires's property at $57,620.

The jury went by bus to view the actual property being condemned, in addition to hearing from the appraisal experts. At the conclusion of the trial, the jury returned a verdict for the landowners that just compensation in this case was $57,620. Judgment was entered for the landowners on May 10, 1995, and on May 12, 1995, the Commission moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The court denied the motion, resulting in the present appeal.

II. THE BEFORE AND AFTER RULE

The proper standard of review of questions of law is de novo. This Court must reverse for erroneous interpretations or applications of law. Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). The first issue, whether the trial court erred in allowing a departure from the before and after rule, assumes that a departure from the rule took place. Nonetheless, the objection made by the defendants at trial was concerned with the introduction of evidence based on the alleged "departure" from the before and after rule. Therefore, this issue concerns an application of the proper legal standard for valuing property, a question of law.

Generally, the admission or exclusion of testimony based on relevancy is within the discretion of the trial judge, and this Court will reverse only if it finds that an abuse of discretion has occurred. Terrain Enter. v. Mockbee, 654 So.2d 1122, 1128 (Miss.1995). Where a court has exercised its discretionary authority in such a way that it misperceives the correct legal standard for admitting evidence, the deference customarily afforded trial courts in decisions concerning admissibility of evidence is precluded, because the error has become one of law. Bean v. Broussard, 587 So.2d 908, 913 (Miss.1991).

When a portion of a larger tract of land is taken for public use, the owner is entitled to be awarded the difference between the fair market value of the entire tract immediately before the taking and the fair market value of the remaining tract immediately after the taking. Trustees of Wade Baptist Church v. Mississippi State Highway Comm'n, 469 So.2d 1241, 1244 (Miss.1985); Sanderson Farms, Inc. v. Mississippi State Highway Comm'n, 324 So.2d 243, 244 (Miss.1975); Mississippi State Highway Comm'n v. Hancock, 309 So.2d 867 871 (Miss.1975); Mississippi State Highway Comm'n v. Hall, 252 Miss. 863, 174 So.2d 488, 492 (1965); Mississippi State Highway Comm'n v. Hillman, 189 Miss. 850, 198 So. 565, 569 (1940).

However, there are exceptions to the "before and after" rule, which may apply in specific situations. These exceptions were first recognized in Hillman, 189 Miss. 850, 198 So. at 569-70. The Hillman court gave the example of the taking of a few acres of a large plantation, which may not decrease the market value of the plantation. Nevertheless, its owners would have lost the value of the land taken and would be entitled to compensation. Id. There, the before and after rule would not give them credit for the value of the property taken. Id. ¹

The other situation which warrants a departure from the before and after rule occurs when the failure to appraise the part of the property not taken has no effect on the resulting damages, and therefore, the party complaining of the failure to follow the before and after rule is not harmed. Green Acres Memorial Park v. Mississippi State Highway Comm'n, 246 Miss. 855, 153 So.2d 286 (1963); Morris v. Mississippi State Highway Comm'n, 240 Miss. 783, 129 So.2d 367 (1961).

In Green Acres, this Court was faced with a situation when one acre of a 103-acre cemetery was condemned. The expert value witness testified that there was no damage to the remaining part of the tract of land after the taking of one acre on the "back side" of the land. Green Acres, 153 So.2d at 288. The Court held that it was not error for the appraiser to fail to appraise the entire parcel when he believed that the remainder was not damages as a result of the taking of one acre, causing no change in the result. Id. at 290.

In Morris, the Highway Commission condemned all of the property on the north side of a highway and did nothing to affect the property on the south of the highway. Morris, 240 Miss. at 786, 129 So.2d 367. The Commission's appraisers did not appraise the property on the south, because it was not affected in any way by the taking of the property on the north side. Id. at 786-87, 129 So.2d 367. This Court found that because the before value and the after value of the land south of the new facility would be the same, the failure of the witnesses to appraise that part of the land had no effect on the resulting damages. Id. at 792, 129 So.2d 367. The Court reasoned that admission of the testimony of the appellees...