Muse v. Mississippi State Highway Commission

• Decision Date: 09 June 1958
• Docket Number: No. 40883,40883
• Citation: 103 So.2d 839,233 Miss. 694
• Parties: Mrs. Winnie Robbins MUSE v. MISSISSIPPI STATE HIGHWAY COMMISSION.
• Court: Mississippi Supreme Court

Page 839

103 So.2d 839

233 Miss. 694

Mrs. Winnie Robbins MUSE v. MISSISSIPPI STATE HIGHWAY COMMISSION.

No. 40883.

Supreme Court of Mississippi.

June 9, 1958.

Creekmore & Beacham, Jackson, for appellant.

Satterfiled, Shell, Williams & Buford, K. Hayes Callicutt, Jackson, Matthew Harper, Jr., Asst. Atty. Gen., for appellee.

KYLE, Justice.

The State Highway Commission filed its petition or application in the county court of Hinds County to condemn, under its power of eminent domain, a strip of land owned by Mrs. Winnie Robbins Muse lying along the west side of U. S. Highway No. 51 North, about 1 3/4 miles north of the corporate limits of the City of Jackson. The strip of land sought to be condemned consisted of .61 of an acre, being 45.5 feet deep of the south end and 55.54 feet deep on the north end, and 565 feet in length along the east side and 574 feet in length along the west side.

The Commission, in its petition, sought to acquire the strip of land above described, 'together with any and all abutters' rights in and to said highway appurtenant to defendant's remaining property, including any and all existing rights of access, except that such remaining property shall have access to frontage road which will be connected to said highway only at points established by public authority.'

The Commission in its petition alleged that the strip of land sought to be acquired was to be used in the relocation and reconstruction of a segment of U. S. Highway No. 51 to be constructed as a part of Federal Aid Project No. 1-091-2(14), which had theretofore been designated by an order of the Commission, dated September 25, 1956, as a 'controlled access facility', as defined in Senate Bill No. 1819, Chapter 314, Laws of 1956, a copy of which said order was attached as an exhibit to the petition.

The record shows that, at the time of the filing of the application for condemnation in this case, the State Highway Commission owned a sufficient right of way in front of the Muse property to construct a fourlane highway without acquiring any additional right of way. That right of way had been acquired from Sam D. Morrison and others, Mrs. Muse's predecessors in title by deed dated September 15, 1948; and under the plans for the project which had been adopted at that time a four-lane highway was to be constructed with a neutral zone or median strip, 30 or 40 feet wide, between the two north-bound traffic lanes and the two south-bound traffic lanes. If the highway had been completed under those plans, with no outside service roads added, the owners of the Muse property would have had direct access to the west or south-bound traffic lanes, but would have been required to drive southwardly to a cross over, before they could have entered the north-bound traffic lane.

The first two-lane section of the highway was completed in 1955. But before any contracts were awarded for the construction of the two additional lanes of the four-lane highway provided for in the original plans the American Association of State Highway Officials, on July 12, 1956, adopted what is known as the 'Geometric Design Standards for the National System of Interstate and Defense Highways', and the United States Congress enacted Public Law 627--84th Congress, Title I--Federal-Aid Highway Act of 1956, 23 U.S.C.A. Sec. 151 et seq., providing for the construction of a National System of Interstate and Defense Highways. U. S. Highway No. 51 was thereafter desigated by proper authority as a part of that system; and in accordance with the provisions of Section 112 of said Title I, Federal-Aid Highway Act of 1956, the Commission decided to construct two more lanes for said highway, in addition to the four lanes called for in the original plans. These extra lanes, one on the east side of the highway, and the other on the west side of the highway, are commonly referred to as service or frontage roads, but for all practical purposes are to become integral parts of the highway. When the highway is completed, the inside or middle four lanes will consist of two lanes on the east side for north-bound traffic and two lanes on the west side for south-bound traffic with a neutral zone or median strip, 30 feet wide, in the middle. Along the outer edges of these lanes, there will be constructed the service or frontage roads designed to provide two-way traffic on each such service or frontage road.

The petition or application for condemnation of the strip of land involved in this case was filed on July 1, 1957. Before the case was set for trial in the county court, the defendant's attorneys filed a motion to strike from the petition that part of paragraph 5 which reads as follows: 'except that such remaining property shall have access to frontage road, which will be connected to said highway only at points established by public authority'; and also all of the next succeeding paragraph relating to the order of the State Highway Commission adopted on September 25, 1956. As grounds for the motion to strike, the defendant's attorneys alleged that the portions of the petition sought to be stricken were irrelevant and immaterial on the issue of just compensation to be paid to the defendant for the taking of her land and her right of access to the existing highway; and that the admission of evidence in respect to the matters relating to the so-called frontage road would authorize the jury to set off against damages suffered by the defendant on account of the taking of her land and the right of access to the existing highway, benefits supposed to accrue by reason of the construction of such service road. The motion to strike was overruled. A jury was empaneled and the case was tried on August 8, 1957. Before the taking of testimony was begun, the county judge dictated into the record a statement that the case would be tried on the theory that under the petition and the law the defendant had a reasonable limited right of access to the present highway as it then existed; that the defendant was entitled to recover from the plaintiff the difference between the current market value of the property of the defendant as a whole, with said reasonable limited right of access to the highway, and the current market value of the balance of the property remaining after the taking and the construction of the service road; and the court held as a matter of law that the plaintiff was obligated to construct such service road.

The case was tried on the theory embodied in the above mentioned statement of the county judge.

The evidence offered on behalf of the petitioner consisted of the testimony of the right of way agent and the project engineer of the State Highway Department and three appraisers, who testified concerning the fair market value of the property before the taking and the fair market value of that remaining after the taking and the construction of the highway.

Shelby Drummond, right of way agent of the State Highway Department identified a plat of the highway right of way theretofore acquired along the east side of the Muse property and the additional strip of land sought to be acquired for the service or frontage road. The right of way agent stated that when the highway was completed it would consist of four through travel lanes, with a median strip in the middle, and a service or frontage road on each side of the highway to serve abutting property and adjacent areas, such service or frontage roads to be connected with the lanes of travel of the main highway at interchanges at Northside Drive and Briarwood Drive, approximately 850 feet south of the Muse property, and by a grade connection at the county line approximately one mile north of the Muse property. The service roads or frontage roads were to be constructed for two-way traffic and were to be finished with a double bituminous surface. Drummond stated that the Highway Department already owned the right of way upon which the four-lane highway was being constructed, and that the strip of land which was being acquired from Mrs. Muse was to be used for the construction of the service road running along the west side of the four-lane highway.

Carl Price, project engineer, testified that two lanes of the highway had been constructed on the right of way acquired by the Commission from Sam B. Morrison and others, Mrs. Muse's predecessors in title, by deed dated September 15, 1948. Two more lanes were being constructed just east of the lanes in place at the time of the trial. There was to be a median strip 30 feet wide between the main traveled portion of the highway for north-bound traffic and the main traveled portion of the highway for south-bound traffic. The remainder of the project engineer's testimony was substantially the same as that given by the right of way agent. The three witnesses who were called to testify for the Commission as qualified experts on real estate values, testified that in their opinion the fair market value of Muse's property before the taking was $14,250, and that the fair market value of the property remaining after the taking and the construction of the highway, including the service or frontage road would be $11,750, making a difference in values before and after taking in the sum of $2,500.

Four appraisers testified on behalf of the defendant. Their opinions as to the fair market value of the Muse property before the taking varied from $19,500 to $22,000. Their opinions as to the value of the property remaining after the taking varied from $11,000 to $16,000. Their opinions as to the difference in values before and after the taking ranged from $6,000 to $10,000.

At the conclusion of the evidence the court instructed the jury for the petitioner, State Highway Commission, that the defendant was entitled to due compensation for the part of the land which was being taken for public use and damages, if any, resulting to her as a consequence of the taking, without taking into consideration...