Smith v. Mississippi State Highway Commission

• Decision Date: 05 December 1938
• Docket Number: 33443
• Court: Mississippi Supreme Court
• Parties: SMITH et ux. v. MISSISSIPPI STATE HIGHWAY COMMISSION

184 So. 814

183 Miss. 741

SMITH et ux. v. MISSISSIPPI STATE HIGHWAY COMMISSION

No. 33443

Supreme Court of Mississippi

December 5, 1938

Division B

1. EMINENT DOMAIN.

In proceeding for condemnation of a half-acre strip of farm land for highway purposes, evidence of loss of market value ranging from $175 to more than $2,000 held to authorize verdict awarding $400 damages.

2. EMINENT DOMAIN.

In eminent domain proceeding, where evidence of difference in market value before and after taking ranged from $175 to more than $2,000, jury could weigh all the evidence and use their best judgment concerning damages, and were not required to take either the highest or the lowest amount.

S. EMINENT DOMAIN.

In proceeding for condemnation of land for highway purposes wherein evidence indicated that grading of adjoining strip which was owned by railroad, made the entrance to landowner's home more difficult, instruction that jury should not allow landowners anything for the railroad's lands nor for grading or construction on such lands was erroneous (Const. 1890, sec. 17).

4. EMINENT DOMAIN.

Under constitutional prohibition against the taking and damaging of private property for public use, property may be damaged without being taken (Const. 1890, sec. 17).

5. EMINENT DOMAIN.

The diminution of the value of abutting property by interference with ingress and egress to and from such property is "damage" within constitutional prohibition against taking and damaging of private property for public use (Const. 1890, sec. 17).

HON GEORGE CURRIE, Special Judge.

APPEAL from the circuit court of Pearl River county HON. GEORGE CURRIE, Special Judge.

Condemnation proceeding by the Mississippi State Highway Commission against D. L. Smith and wife, wherein judgment on a verdict was entered in eminent domain court, and the Highway Commission appealed to the circuit court. From a judgment of the circuit court on a verdict in an insufficient sum, the landowners appeal. Reversed and remanded.

Reversed and remanded.

Hathorn & Williams, of Poplarville, for appellants.

The judgment and verdict is grossly inadequate and clearly against and contrary to the great preponderance of the evidence in the case, and it is manifest that the jury, in assessing the damages, were unduly influenced in favor of appellee and against appellants.

State v. Cloud, 116 So. 815; Kwong v. Board of Mississippi Levee Commrs., 144 So. 693; Universal Truck Loading Co. v. Taylor, 164 So. 3; Teche Lines v. Bounds, 179 So. 797; City of Jackson v. Williams, 46 So. 554.

The trial court erred in giving unto plaintiff the instruction, as follows: "The court instructs the jury for the plaintiff, State Highway Commission, that you will not allow the defendants anything for the lands embraced in the New Orleans and Northeastern Railway right-of-way, nor for any grading or construction on said lands so embraced in said New Orleans and Northeastern Railway right-of-way."

In the face of the undisputed testimony that the lowering of the grade in front of appellants' property left appellants' home and other improvements setting upon a bluff with a ditch bank for an approach, appellee obtained the above quoted instruction which peremptorily instructed the jury that appellants were not entitled to recover any damages for the injury done to their property by the lowering of the grade in front of their property and the construction of this ditch bank. This was fatal error.

Parker v. State Hwy. Com., 162 So. 162, 173 Miss. 213. The jury told that they could not award appellants any damages for this interference with access to their property. This was likewise fatal error.

Curry v. Railroad Co., 22 A.L.R. 138.

The trial court erred in admitting testimony offered by the plaintiff over the objection of defendants and in excluding testimony offered by defendants.

The testimony referred to as having been erroneously admitted over the objection of appellants was the testimony of the witness White that the traveled part of the highway when completed would not be any nearer appellants' improvements than the traveled part of the old highway, and the further testimony of the witness White that all of the construction work which was going to be done on the highway had been completed, and the further testimony of the witness White that the five trees which belonged to appellants and which were taken by the condemnation proceedings had not been cut and could not be cut by the State Highway Commission. The manifest purpose of this testimony was to mislead the jury into believing that no further construction work could or would be done upon said highway and that said trees could not be cut and removed by the State Highway Department, and to thereby minimize the amount of damages which appellants were entitled to recover. This erroneous testimony was all admitted over the objection of appellants. In order to minimize the damaging effect of this testimony, appellants tried to show by cross-examination of this witness White that the State Highway Department could use the property of appellants taken by the condemnation proceedings, including the cutting of the trees, in any manner in which it might desire to use the same. This witness White argued, however, that the State Highway Commission was not going to use that part of appellants' property taken by appellee for any purpose except to make some drainage changes and to keep people from cluttering up the highway with signs and billboards. Just when counsel for appellants reached the point on said cross-examination where this witness White was getting in deep water on the question of whether or not the Highway Department had a right to cut these trees and to use that part of the highway taken from appellants, counsel for appellee objected to the cross-examination of this witness White on this point, and the trial court sustained the objection.

20 C. J. 768; Penn Builders v. Blair County, 75 A.L.R. 861, 862; Thompson v. City of Philadelphia, 177 So. 39; Highway Commission v. Buchanan, 166 So. 537.

In conclusion we desire to say that appellants are large taxpayers and substantial citizens of Pearl River County. They are considered some of the very best citizens of Pearl River County, and there is no way for appellee to justify and explain this grossly inadequate verdict of $ 400.00. In fact, the only explanation to the verdict is that the jury was actuated by prejudice or passion or some other improper influence.

Davis v. McDonald, 178 So. 467.

We submit that it is also spoliation to take a part of a man's property and damage the remainder and force him...