State Highway Commission v. Day

• Decision Date: 09 May 1938
• Docket Number: 33134
• Citation: 181 Miss. 708,180 So. 794
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY COMMISSION v. DAY et al

180 So. 794

181 Miss. 708

STATE HIGHWAY COMMISSION v. DAY et al

No. 33134

Supreme Court of Mississippi

May 9, 1938

Division A

1. EMINENT DOMAIN.

In proceedings to condemn strip of land through farm for highway purposes, permitting jury to consider evidence of danger to cattle and people crossing highway in arriving at depreciation of value of farm was error (Code 1930, section 1491).

2. EMINENT DOMAIN.

Where no peculiar, special, or different value is shown to be inherent in land taken from that of entire tract, there is no valid reason why the condemnor should not pay the owner the average value per acre.

3. EMINENT DOMAIN.

In highway condemnation proceedings, fact that testimony of witnesses was objected to at close of testimony of each rather than as testimony was given was not fatal, where complete cross-examination was required to demonstrate that witness' original estimate of damage was unsound.

4. EMINENT DOMAIN.

In highway condemnation proceedings, permitting witness to fix a depreciation of value of tract because highway cut it off from remainder and then pyramid damages by estimating the costs of fences, wells, and the like to restore tract to a stock farm status was error.

5. EMINENT DOMAIN.

In highway condemnation proceedings, jury should have been advised by the evidence that the measure of damages to be awarded to the owner should be the difference between the market value of the entire tract before and after the taking (Code 1930, section 1491).

6. EMINENT DOMAIN.

Each highway condemnation case must be governed by its own circumstances.

7. EMINENT DOMAIN.

The many items which may arise in a highway condemnation case in so far as they show a depreciation of owner's property by the taking are never competent as separate items of recoverable damage (Const. 1890, section 17).

8 COURTS.

The statute providing for trial of eminent domain cases before judge in vacation simply confers on judge of county court that jurisdiction which had been conferred on the county court in term time (Laws 1936, chapter 247, amending Code 1930, section 693).

HON. D M. ANDERSON, Judge.

APPEAL from the circuit court of Newton county, HON. D. M. ANDERSON, Judge.

Condemnation proceedings by the Mississippi State Highway Commission against Mrs. Ruth Montgomery Day and others. From the judgment for defendants, the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

E. R. Holmes, Jr., Assistant Attorney-General, for appellant.

The fact that appellee's residence was situated on the east side of the farm and facing old Highway No. 15, and the fact that the new highway crossed the place behind the residence and the barns at about 600 feet, or more, therefrom, was not a fact which could be considered by the jury in this case as the residence was not disturbed, the barns were not disturbed, and the old Highway No. 15 was not disturbed. In other words, any damage to the residence or the barns by virtue of the re-location of Highway No. 15 was too remote and was not a legal damage because old Highway No. 15 ran and would continue to run, so far as the testimony in this case shows, in the same place that it had always run. It is true that the road would become a county or local road instead of a state highway, but it is further true that the same physical road would remain.

It is also clear that the facts which were taken into consideration by the witnesses for the appellees, that is, those elements of damage with reference to digging a well on the west side of the road; the damage to persons and property occasioned by cars on the highway: the maintenance of the fences in the future; the damage by virtue of cattle crossing the road; the damage by virtue of loss of time in crossing the road; the damage by virtue of the fact that the road ran behind the residence, and all of the other immaterial, speculative and imaginary elements of damage which were thrown in by the witnesses for the appellees in their efforts to build up a large and substantial figure of damages, are directly in conflict with the holding of this court in the recent cases decided by this court with particular reference to the State Highway Commission, being the cases of:

State Highway Commission v. Brown, 176 Miss. 23; State Highway Commission v. Chatham, 173 Miss. 427; State Highway Commission v. Randle, 180 Miss. 834; Y. & M. V. R. R. Co. v. Jennings, 90 Miss. 93.

We respectfully submit that in this cause for the benefit of the State Highway Commission and for the benefit of all of the lawyers of the state as well, this court should decide the effect of Chapter 247 of the Laws of 1936 on the position of the county judge in eminent domain suits, that is to say, whether he simply acts ministerially and in lieu of a justice of the peace and follows all of the provisions of Chapter 26 of the Code of 1930, or whether he acts judicially and all of the provisions of Chapter 16 of the Code should be followed by him, and second, whether or not the measure of damage, as set out in Section 1491 of the Code, is the sole and only true measure of damage in an eminent domain suit and if so, whether or not, in attempting to make out its case herein, the defendant has overstepped the bounds of that instruction and particularly that part of it with reference to damages resulting to him as the consequence of the taking.

Stone & Stone, of Decatur, for appellees.

Appellant had the opportunity of requesting of the trial court at the conclusion of the taking of testimony an instruction or instructions setting out clearly and definitely the method to be followed by them in arriving at a proper verdict. This was not done. The only instruction requested was the statutory instruction set out in Section 1491, Code 1930 of Miss. Appellant had its day, it had its opportunity, and should not now be heard to complain if it did not see fit to avail itself of them.

In the case of Highway Department v. Buchannan, 175 Miss. 186, this court held that unless a sale reflected the fair market value of the property it was not competent to be used as a standard in measuring values.

We submit that one fact stands out in this record which will warrant the verdict rendered by the jury. This plantation was a combination stock farm and general utility farm and through the years had been developed to the point where it could be utilized as such with the least possible expense, in that cattle could go from the barns and lots at will to the pastures and back; barns had been built, lanes had been constructed, water works had been put in, so that the stock farm feature was, under the proof, the chief value of this plantation. But with the new road running as it does, the pasture lands are completely separated from barns, feed. and water with no safe way for the cattle to go back and forth as before. Where formerly the owner of this plantation could approach the barns from the west side at any point desired, now with the new road, there is prepared one and only one road crossing for a little over one mile that this road runs through this plantation.

In the case of Parker v. State Highway Comm., 173 Miss. 213, this court speaking through McGowen, J., said: "Municipalities, as well as all persons, natural or artificial are included within its prohibitions, and a municipality which lowers an established grade of a highway causing abutting lots to be injured must compensate the owner for all damage sustained thereby." This court then cited City of Vicksburg v. Herman, 77 Miss. 211, and many other cases decided by our court, and then quoting from the Herman case relative to the words, "or damaged", in our Constitution said: "The words are without limitation or qualification. They embrace within their inhibition all those attempting to convert private property to public use,--artificial as well as natural persons, municipal and other corporations alike,--and they cover all damages of whatever character."

Kwong v. Levee Comm., 164 Miss. 250.

Chapter 247 of the Acts of 1936, simply amends Section 963, Code of 1930, by giving to the county court vacation jurisdiction to try eminent domain cases, etc. Certainly it will not be contended that Chapter 247, Laws of 1936, gives jurisdiction to the special eminent domain court created by Chapter 26, Code of 1930, and particularly Section 1481 thereof.

But if we be in error in our conclusion that Chapter 247 Laws of 1936 simply amends Section 963 of the Code of 1930, by giving to the county court vacation jurisdiction to try eminent domain cases; and if it be conceded, which we deny, that appellant was entitled to a de novo trial in the circuit court; yet we insist that this right was waived by appellant and cannot here be insisted upon. This suit was brought by appellant as petitioner, in the forum selected by appellant.

Argued orally by E. R. Holmes, Jr., for appellant, and by H. R. Stone, Sr., for appellee.

OPINION

McGowen, J.

The Mississippi State Highway Commission, appellant, filed condemnation proceedings against Mrs. Ruth M. Day as owner Federal Land Bank of New Orleans, La., mortgagee, and F. E. Taylor, a party in interest, appellees. That petition was filed with the circuit clerk, who by order directed that the presiding judge of the county court of Newton county be summoned to preside, and that a special eminent domain court be organized on a certain day named, which was in vacation. The circuit clerk issued a summons for eighteen jurors to appear then and there, from which a jury was to be selected by order of the judge of the county court. A jury of twelve men was impaneled, the evidence was submitted, the jury viewed the premises, and awarded the appellees $ 5,500, and judgment to that effect...