Morris v. Mississippi State Highway Commission

• Decision Date: 24 April 1961
• Docket Number: No. 41818,41818
• Parties: John Hughes MORRIS and Ann K. Morris v. MISSISSIPPI STATE HIGHWAY COMMISSION.
• Court: Mississippi Supreme Court

Page 367

129 So.2d 367

240 Miss. 783

John Hughes MORRIS and Ann K. Morris v. MISSISSIPPI STATE HIGHWAY COMMISSION.

No. 41818.

Supreme Court of Mississippi.

April 24, 1961.

Prewitt & Bullard, Vicksburg, for appellants.

Teller, Biedenharn & Rogers, Vicksburg, for appellee.

GILLESPIE, Justice.

Appellants own approximately 13 acres of land fronting 640 feet on the north side of present U. S. Highway 80 about 8 miles east of Vicksburg. The property extends north a distance of about 1,000 feet. The northerly part is somewhat narrower than the highway frontage. Near present U. S Highway 80 there is located certain improvements on said land, including a residence, restaurant and other buildings. The northerly part is hills and hollows with some small timber growth, except about one acre which had once been used as a garden. This property is leased on a month to month basis for a rental of $150 monthly.

Mississippi State Highway Commission, appellee here, filed its petition to condemn 5.52 acres through the northerly part of appellants' land to be used in the relocation and reconstruction of interstate U. S. Highway No. 20 (old U. S. Highway No. 80). The new facility is to be a part of the interstate system of highways. The petition sought to condemn all abutters' rights of access. In other words, the new facility is to be a limited access highway. A parcel of appellants' land containing 1.4 acres will be left to the north of the new highway to which appellants will have no access.

Appellants' access to present U. S. Highway 80 will not be affected by the taking. U. S. Highway 80 will revert to county control upon completion of the new U. S. Highway 20. Present U. S. Highway 80 will connect to new U. S. Highway 20 at interchanges three-fourths of a mile east of appellants' land and five miles west. Obviously, through traffic will be diverted to new U. S. Highway 20.

On trial in county court the jury returned a verdict assessing appellants' damages at $1,800. On appeal to the circuit court the case was affirmed. Appellants bring the case to this Court.

The two appraisers for appellee testified that the property remaining after the taking which will lie south of the new highway and on which the residence and commercial buildings are located will not be damaged by the taking. They testified that the damages appellants will sustain consists of the fair market value of the land actually taken, plus the fair market value of 1.4 acres to which appellants will have no access, plus the value of a fence which will be taken. They did not value the part of appellants's land remaining south of the new facility because in their opinion it was not damaged and an appraisal of that portion of appellants' property was not necessary to arrive at the damages. These witnesses testified in effect that since there would be no damage to the property remaining between present U. S. Highway 80 and the new U. S. Highway 20, that a detailed appraisal of that part was unnecessary to arrive at the difference between the value of all the property before the taking and the value of the property remaining after the taking. All this testimony was admitted over the objection of appellants. Appellee's two witnesses gave their opinions that appellants will be damaged $1,285 and $1,355 respectively.

Appellant John Hughes Morris' testimony was stricken. A witness for appellants testified that appellants' entire property before the taking had a fair market value of $26,046 and $13,866 after the taking, or damages of $12,180. No motion was made to strike this testimony but it was shown on cross-examination that this witness based the damages in part on the relocation of the highway which would destroy its commercial value, the same being the reason the testimony of appellee John Hughes Morris' testimony was stricken.

Appellants' first assignment of error is as follows: 'The loss or impairment of access to a relocated highway is a proper element to be taken into account in determination of fair market value before and after taking.' It should be kept in mind that when the new U. S. Highway 20 is constructed appellants will have no right of direct access thereto, but they will have the same access to present U. S. Highway 80 as before, without any restriction or impairment, and U. S. Highway 80 will not be closed but will connect to the new Highway 20 at interchanges as already stated. The Mississippi State Highway Commission will abandon U. S. Highway 80 to county maintenance in accordance with Section 8033 Mississippi Code of 1942. Through traffic will be diverted from U. S. Highway 80 to the new U. S. Highway 20, and appellants offered proof, which the court would not admit, that by reason of the relocation and diversion of traffic the fair market value of their property will be diminished. When appellants' first assignment is related to the facts of the case, two questions arise: (1) When the relocation of the highway results in the diversion of traffic from passing in front of appellants' land which diminishes the fair market value of their land, are they entitled to damages on that account? and (2) does the denial of direct access to a new or relocated highway constitute the taking of a right which is compensable?

We hold that appellants are not entitled to recover damages resulting from diversion of traffic from present U. S. Highway 80 to the new facility. The case of Quin v. Mississippi State Highway Commission, 194 Miss. 411, 11 So.2d 810, 814, is in point and holds contrary to appellants' contention. In that case this Court said:

'The mere fact that the plaintiff's home and premises have been left off of the new paved highway does not of itself and afford a legal basis for the recovery of damages. Many mercantile store buildings, filling stations, residences, as well as entire towns and cities, are necessarily left off of the new paved highways throughout the state during the progress and work of shortening the distance and eliminating curves in the network of our improved state highway system, but the damages sustained by the property owners thereof are not recoverable 'so long as there remains a public highway, maintained as such, in substantially the same location' where the old highway existed. * * *'

An abutting landowner has no right to the continuation of the flow of traffic past his property and the diminution in the value of land occasioned by public improvements that diverts the flow of traffic past an owner's property is not compensable. Such changes are made in the exercise of the police power and do not constitute the taking or damaging of a property right. Cf. Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839. This is established law in most jurisdictions. State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53; Johnson's Petition, 344 Pa. 5, 23 A.2d 880; Board of Commissioners of Sante Fe County v. Slaughter, 49 N.M. 141, 158 P.2d 589; State v. Peterson, 134 Mont. 52, 328 P.2d 617.

When a property owner improves property fronting on a highway he takes a calculated risk that the authorities may find it necessary in improving the highway systems to build new facilities that will divert the traffic from passing in front of his property; and in such cases the property owner is not entitled to damages so long as access to the existing highway remains unimpaired and unrestricted.

Appellants rely on Mississippi State Highway Commission v. Finch, 237 Miss. 314, 114 So.2d 673; Carney v. Mississippi State Highway Commission, 233 Miss. 598, 103 So.2d 413; Smith v. Mississippi State Highway Commission, 183 Miss. 741, 184 So. 814, and Wheeler v. State Highway Commission, 212 Miss. 606, 55 So.2d 225. Those cases are not in point. In all except the Wheeler case there was an existing access right that was...