State Highway Com'n of Mississippi v. Havard, No. 56512

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before WALKER; ROBERTSON; WALKER
• Citation: 508 So.2d 1099
• Parties: STATE HIGHWAY COMMISSION OF MISSISSIPPI v. Gladys Cooley HAVARD and David E. Havard.
• Decision Date: 27 May 1987
• Docket Number: No. 56512

Page 1099

508 So.2d 1099 STATE HIGHWAY COMMISSION OF MISSISSIPPI
v.
Gladys Cooley HAVARD and David E. Havard. No. 56512. Supreme Court of Mississippi. May 27, 1987.

Page 1100

Darryl A. Hurt, Hurt & Hurt, Lucedale, for appellant.

Michael V. Ratliff, Ingram, Matthews & Stroud, Hattiesburg, for appellees.

Before WALKER, C.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This is a highway right-of-way eminent domain case. The condemning authority appeals and presents issues regarding the measure of compensation due upon the taking, the scope of cross-examination and the alleged excessiveness of the jury's award. Also presented is a thorny pre-trial discovery point. For the reasons stated below, we affirm.

II.

David E. Havard and Gladys Cooley Havard (sometimes "landowners"), husband and wife, live approximately six miles east of Lucedale in George County, Mississippi. Since 1959 they have made their home on a 1.43 acre tract of land along U.S. Highway No. 98. The Mississippi State Highway Commission (MSHC) has determined that Highway 98 should be four-laned, a decision no doubt made in the public interest. To accomplish this end, however, MSHC must take much of the Havards' front yard. Specifically, MSHC has determined to condemn .89 acres of the Havards' property upon which and across which the new lanes of Highway 98 will be placed. After the construction of the two new lanes, the Havard house will be approximately 35 feet from the highway right-of-way and approximately 130 feet from the edge of the pavement.

MSHC commenced this eminent domain proceeding in the Circuit Court of George County, Mississippi, on June 25, 1984.

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Miss.Code Ann. Secs. 11-27-5, et seq. (1972). The matter was called for trial on December 7, 1984.

At trial Jerry Wallace, expert appraiser for the Highway Commission, offered his opinion that the highest and best use of the property was rural residential; he would award a total compensation of $3,650.00, of which sum $975.00 represented damage to the remainder.

Appraiser for Appellees Havard, John Guthrie, who also classified the property as rural residential, opined that the total damages owed to the Havards should be $13,850.00. Mr. and Mrs. Havard, both elderly, testified that they felt compensation should be $29,000.00 or $30,000.00 because the property in question was their home and they had no way to relocate.

After hearing the evidence and viewing the premises, the jury returned a verdict and assessed compensation due the Havards by reason of the taking at the sum of $15,000.00.

MSHC thereafter moved for a new trial on the issue of damages or, in the alternative, for a remittitur, which motion was overruled by the Circuit Court on January 4, 1985. Still contending that the jury's damage award was substantially excessive, MSHC now appeals to this Court.

III.

MSHC first argues that the Circuit Court erred in allowing landowners' counsel to cross-examine MSHC's appraisal witness with regard to the effect of increased noise and increased proximity of their house to the highway arguably to result from the taking. Specifically, MSHC argues that noise and increased proximity were treated by landowners as separate elements of damage in violation of the before and after rule.

We consider this assignment of error in the context of two familiar rules: the components of compensation due as the result of a partial taking and our evidentiary rules regarding the scope of cross-examination.

First, due compensation has two familiar components: the fair market value of the property taken and the damage, if any, to the remainder. Put another way, when a part of a larger tract is taken, the property owner is due compensation equal to the difference between the fair market value of the whole tract immediately prior to the taking and the fair market value of the remaining tract immediately after the taking. See, e.g., Mississippi State Highway Commission v. Franklin County Timber Co. Inc., 488 So.2d 782, 785 (Miss.1986); Muse v. Mississippi State Highway Commission, 233 Miss. 694, 718, 103 So.2d 839, 849 (1958). Items such as noise attributable to increased traffic and the increased proximity of the highway to a residence may not form distinct elements of damage. The same is true of the fact of increased proximity to the highway generally. Such matters may be considered only insofar as they impair the fair market value of the property remaining after the taking. See, e.g., Trustees of Wade Baptist Church v. Mississippi State Highway Commission, 469 So.2d 1241, 1244-45 (Miss.1985); Mississippi State Highway Commission v. Hall, 252 Miss. 863, 871-75, 174 So.2d 488, 492 (Miss.1965); Mississippi State Highway Commission v. Colonial Inn, Inc., 246 Miss. 422, 431-32, 149 So.2d 851, 855 (1963). The before and after rule "swallows and absorbs" all specific elements of damages. Mississippi State Highway Commission v. Basil Blackwell, et al., 350 So.2d 1325, 1329 (Miss.1977); Mississippi State Highway Commission v. Hall, 252 Miss. 863, 874, 174 So.2d 488, 492 (1965).

None of this means that witnesses may not be questioned regarding the specifics of the impact of the taking upon the value of the property. Indeed, the fair market value of the remainder of the property following the taking is as a matter of common sense a product of the influence that numerous specifics respecting the taking may have in the market place. Accordingly, witnesses may testify concerning any specific quality, item or change in the property or its attributes, so long as this is ultimately related to the value of the property

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remaining after the taking. Trustees of Wade Baptist Church v. Mississippi State Highway Commission, 469 So.2d at 1245; Mississippi State Highway Commission v. Hall, 252 Miss. at 874-75, 174 So.2d at 492; Wheeler v. Mississippi State Highway Commission, 212 Miss. 606, 55 So.2d 225.

Parenthetically, we consider that a combined reading of Instruction Nos. P-5 ¹ and D-2 ² more than adequately explain to the jury the before and after rule. Conversely, there is no instruction given the jury which might remotely be taken to single out noise, proximity, or any other specific element of damage.

Beyond these matters, it is important that the said-to-be offending comments and questions arose in the context of landowners' counsel's cross-examination of MSHC's valuation expert, Jerry Wallace. Wallace had given his opinion that the highest and best use of the property was rural residential and that the total compensation due was $3,650.00 of which $975.00 represented damage to the remainder after the taking. In cross-examination, landowners' counsel sought to determine what matters Wallace had considered and what he had not considered in forming his opinion. As in all cases, the latitude allowed counsel in cross-examination in this state is quite wide. Any matter relevant may be probed. See, e.g., Miskelley v. State, 480 So.2d 1104, 1112 (Miss.1985); Fishboats, Inc. v. Welzbacher, 413 So.2d 710, 719 (Miss.1982); Saxon v. Harvey, 190 So.2d 901, 907 (Miss.1966). Considering the residential nature and use of the property, the question of whether increased noise and increased proximity to the highway might adversely affect the value of the property remaining after the taking were relevant. The Circuit Court was well within its authority in refusing to interfere with this cross-examination. ³

The assignment of error is denied.

IV.

MSHC next assigns as error the Circuit Court's overruling of its objection to Gladys Cooley Havard's testimony of inconvenience as a result of the taking. MSHC alleges that Mrs. Havard sought to obtain a separate item of damages as a result of her alleged problems in getting her car in and out of her property. The Commission refers to her answer to counsel's question, "What about after the Highway Department takes your property about getting a car in and out of there?" Mrs. Havard answered: "Well, it...