Smith v. Mississippi State Highway Com'n, 53493

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtROY NOBLE LEE; PATTERSON; DAN M. LEE; Perhaps, in our zeal to justify a given result we overlook some basics of our three-separate-branch form of government. We interpret statutes passed by our legislature, not rewrite them nor ignore them. The major
Citation423 So.2d 808
PartiesVernon SMITH, James G. Norman, Travis Wallace and Duran Barnes v. MISSISSIPPI STATE HIGHWAY COMMISSION.
Docket NumberNo. 53493,53493
Decision Date08 December 1982

Smith, Downs, Ross, Trapp & Coleman, Donald Ray Downs, Corinth, for appellants.

James P. Dean, Corinth, for appellee.

En Banc.

ROY NOBLE LEE, Justice, for the Court:

A Special Court of Eminent Domain in Alcorn County, Honorable Neal B. Biggers, Jr., presiding, entered judgment for Vernon Smith, James G. Norman, Travis Wallace, and Duran Barnes, landowners, against the Mississippi State Highway Commission [Commission] in the sum of ninety-three thousand four hundred twenty-five dollars ($93,425.00) as compensation for the taking of 33.62 acres of land. The landowners, being aggrieved at the judgment, have appealed here and assign four (4) errors in the trial below:

(1) The lower court erred in excluding the testimony of Betsy A. Hanson concerning the purchase of a lot in the subdivision.

(2) The lower court erred in excluding certain photographs of comparable housing.

(3) The lower court erred in granting Instruction P-2 which concerns inconvenience as an item of compensation.

(4) The lower court erred in allowing the jury to view the property in the absence of the trial judge and court reporter.

The appellants are owners and partners in the development of 207.5 acres in Alcorn County, known as the "Spring Valley Subdivision." On May 23, 1980, the Commission filed an application for a special court of eminent domain, pursuant to Mississippi Code Annotated Sec. 11-27-81, et seq. (Supp.1981), to condemn 33.62 acres of said area and for the immediate possession of the property in order to construct a controlled access highway, together with an accompanying frontage road, in connection with U.S. Highway 45. The Commission's original statement of values filed June 2, 1980, estimated the total just compensation for the taking at one hundred thousand four hundred fifty dollars ($100,450). The appellants' statement of values states these same elements of damage at two hundred ninety-five thousand four hundred eighty-seven dollars ($295,487.00). The court appointed an independent appraiser to determine the compensation, and he fixed same at one hundred thirteen thousand dollars ($113,000).

Prior to the trial, the Commission amended its statement of values and lowered its estimate of compensation due the owners to sixty-three thousand three hundred fifty dollars ($63,350). During the trial, the Commission's experts testified to a higher figure, and the lower court granted a motion by the landowners (appellants) that the Commission's statement of values be amended to reflect the high amount of ninety-one thousand three hundred dollars ($91,300), which was sustained. The landowners were also allowed to amend their estimated compensation value to three hundred thirty-two thousand one hundred sixty dollars ($332,160)

Three qualified expert appraisers testified for the Commission. Their values follow:

                                 Value      Value
                                Before      After
                                Taking     Taking    Compensation
                J. W. Dilmore  $ 454,725  $ 391,375    $ 63,350
                Fred Spencer     549,900    458,600      91,300
                Houston Evans    523,432    439,450      83,982

In addition to the testimony of appellants and other lay witnesses, appellants introduced three qualified experts and appraisers (Vernon Smith, Landowner, being one of the witnesses) who testified to the value of the property:

                                      Value       Value
                                     Before       After
                                     Taking      Taking    Compensation
                James R. Laughlin  $1,067,392  $  774,405   $ 292,987
                Phil Atkins         1,081,340     762,330     319,010
                Vernon Smith        1,365,000   1,041,260     323,640

The jury, having heard all the evidence, viewed the property, received the instructions of the court, heard arguments of counsel, and returned a verdict for compensation in the amount of ninety-three thousand four hundred twenty-five dollars ($93,425.00).


Did the lower court err in excluding the testimony of Betsy A. Hanson concerning the purchase of a lot in the subdivision?

During the Commission's case in chief, one of its appraisers testified concerning the sell-off rate of lots in the Spring Valley Subdivision area, and compared their sale rates to other subdivisions. He gave his opinion that the causes for Spring Valley's lower sell-off rates were poor asphalt, open ditches, and sewage system. In order to rebut that claim, the appellants attempted to call Mrs. Betsy A. Hanson as a witness. According to the offer of proof, she would have testified that she and her husband had agreed to purchase a lot, but when they learned that the highway was taking the property involved here, they decided against it for that reason. The court sustained an objection to her testimony, in the following words:

BY JUDGE BIGGERS: All right, gentlemen, it is already in the record before the jury by several witnesses including the property owners that the lots were not sold to some extent because of the impending construction of the highway. I think the jury is adequately apprised of that already and the previous ruling of the Court will stand sustaining the objection to any individual person coming in and testifying that that particular person would not buy a lot because of the highway. As I have previously stated, that would open up the door to the State being able to rebut this by finding someone who might come in and say that they would rather find a lot that was close to a four-lane highway, that it would put him on easy access to traveling somewhere. What we are dealing with here is the general situation and not individual preferences or individual persons, I don't want to get into specific likes or dislikes of buyers, prospective buyers. I think the jury is adequately apprised of what the general situation is. That objection to the witness' testimony will also be sustained.

We are of the opinion that the testimony of Mrs. Hanson would single out and show the preference of one individual, which is not competent on the issue of damages and compensation, when other people probably have different preferences. Mississippi State Highway Commission v. Hillman, 195 So. 679 (Miss.), sugg. of err. overruled, 189 Miss. 850, 198 So. 565 (1940).

In addition, Duran Barnes, a landowner, testified that no lots had been sold after he told prospective buyers about the highway, and Vernon Smith testified that the people he took to see the property didn't want their house to be backed up on the highway. James Laughlin, an expert appraiser for the appellants, testified that the lots in Spring Valley Subdivision did not sell well because of the highway project. Therefore, the general situation, within the knowledge of persons who knew the property, was in evidence, and it was not error to exclude the testimony of Mrs. Hanson.


Did the lower court err in excluding certain photographs of comparable properties?

The appellants offered in evidence photographs of two houses in Patrick Subdivision, which subdivision was used as comparable property by the Commission's witnesses in arriving at compensation. Also, photographs of eleven houses that had been built in the Spring Valley Subdivision were offered. The court sustained objections to all said photographs.

The appellants contend that the photographs of the two houses in Patrick Subdivision showed that the property did not compare favorably with the quality of housing in the Spring Valley Subdivision, and that the houses in Spring Valley Subdivision were superior to those in the other area.

Neither the Commission nor the appellants offered in evidence any instrument constituting a restrictive covenant on either Spring Valley Subdivision or Patrick Subdivision. All appraisers for the Commission referred to the fact that there was a protective covenant on Spring Valley Subdivision. Appraiser Dillmore was vague as to the protective covenant and only stated that it was restricted to residential buildings, that some houses were restricted to not less than approximately fifteen hundred (1,500) square feet of heated space, some were restricted to about twelve hundred (1,200) square feet of heated space, that he believed the smallest house was approximately one thousand (1,000) square feet, and no mobile homes were permitted on the property.

Appraiser Spencer testified that he had examined the restrictive covenant but he didn't recall it. He took into consideration, as a comparable, lots of the Spring Valley Subdivision which already had been sold. Appraiser Evans stated there was a protective covenant as to two hundred seven (207) acres but that covenants did not tend to increase or decrease the value of real estate.

The lower court, in sustaining objections to the photographs, said:

I don't think we ought to clutter up the record any more with houses from another subdivision and show that another subdivision is less expensive than the one we are talking about any more than I would allow the State to bring in pictures of houses out in Chandler Park and show pictures of Dr. Davis' house which the appraisers for the property owners used as a comparable subdivision, to show that they are more expensive, that there are houses in that subdivision that are more expensive than the houses in the subject subdivision. It is just so far removed from the issue that we are talking about, we are not taking any houses in this case, there are no houses being involved in the taking and I think it is just a little far removed from what we are really concerned with in the case and also as far as the photographs of the houses in the subdivision, the jury is going to see the actual houses themselves and that is better than the photographs and so all...

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