State Highway Commission v. Buchanan
| Decision Date | 23 March 1936 |
| Docket Number | 32071 |
| Citation | 165 So. 795,166 So. 537,175 Miss. 157 |
| Court | Mississippi Supreme Court |
| Parties | STATE HIGHWAY COMMISSION v. BUCHANAN et ux |
February 10, 1936
APPEAL from circuit court of Lauderdale county HON. ARTHUR G. BUSBY Judge.
Condemnation proceeding by the State Highway Commission against J. S Buchanan and wife. From a judgment of the circuit court affirming a judgment of the county court awarding damages the State Highway Commission appeals. On motion to dismiss appeal, motion to dismiss appeal overruled. Reversed and remanded.
Reversed and remanded.
Gilbert & Cameron, of Meridian, for appellees, on motion to dismiss.
J. S Buchanan and Mrs. Audrey Buchanan, appellees, move the court to dismiss the appeal in this cause and for ground of motion assign the following, to-wit:
Subsequent to the rendition of the eminent domain judgment by the county court of Lauderdale county, Mississippi, the State Highway Commission, appellant, accepted the benefit of said judgment of said county court by entering upon, appropriating the land for public highway use, thereby waiving its right to appeal from said judgment.
I. C. R. R. Co. v. State, 48 So. 561; Section 17, article 3, Constitution of 1890.
The importance of this section of the Constitution as affecting the welfare of the citizenry of the state cannot be too strongly emphasized.
I. C. R. R. Co. v. Commissioners of Highways of Town of Mattoon, 161 Ill. 247, 43 N.E. 1100; Covington County v. Watts, 120 Miss. 428; Raney v. Hinds County, 78 Miss. 308, 28 So. 875.
The above cases, of course, did not pass on the question now before the court, but our purpose in calling the same to the court's attention is to emphasize the fact that tim court has always recognized that this provision of the Constitution must be construed so as to protect the rights of the private property owner and this is true whether the condemning party be a subdivision of the state or some other party having the right of eminent domain under our statute.
It is therefore respectfully contended that these cases throw on the question and that they will be considered by the court in reaching a conclusion of tim question now raised by this motion to dismiss.
Reily & Parker, of Meridian, and E. R. Holmes, Jr., Assistant Attorney-General, for appellant, on motion to dismiss.
There is nothing in this record to show whether appellant ever entered on the land or not. There is nothing to show why appellant entered on the land. So far as this record is concerned, appellee may have tacitly permitted appellant's entrance upon the land, as this court decided was done in the case of State Highway Commission v. Campbell, 161 So. 461. This question cannot be decided until the case has been properly tried on the original bill filed in the chancery court of Lauderdale county and an appeal from a record showing all the facts and surrounding circumstances has been brought before this court directly and not collaterally. This court is one of appellate jurisdiction only and it can act only in review of the record presentation of what is done or not done in the court of original jurisdiction.
Yazoo, etc., R. R. Co. v. Wallace, 90 Miss. 609, 43 So. 469.
On this appeal the amount due appellees is the only issue involved. The fact that appellant has sought other and natural legal remedies does not bar its appeal in this case.
Currie v. Bennette, 108 Miss. 854, 67 So. 484.
A case on appeal may not be transformed into a different one from that in the trial court.
Noxubee County v. Long, 141 Miss. 72, 106 So. 83; Hinds County v. Johnson, 133 Miss. 591.
Reily & Parker, of Meridian, and E. R. Holmes, Jr., Assistant Attorney-General, for appellant.
The appellant in this case contends that the evidence concerning the values of the Petit and Hawkins property, or the price paid for the Hawkins property, was not competent in this case, and that such evidence would render this trial erroneous and require a reversal thereof.
It is our contention that there are three holdings of the courts concerning this character of evidence. The first being that specific sales, or the price paid in specific sales, cannot be offered in evidence in condemnation proceedings, except that witnesses may be asked about specific sales on cross-examination. The above rule seems to be a minority holding, but probably Mississippi adheres to this rule.
Specific sales and the price paid therefor may be offered in evidence, provided the similarity of such property is shown to the property being condemned, and such sales are voluntary, and sales made in eminent domain proceedings, or in contemplation of eminent domain proceedings connected with the same project, axe not voluntary sales, and the evidence concerning the same is not competent.
10 R. C. L. 220, 221 and 222, par. 188.
We think that Mississippi is aligned with the courts that hold that particular sales cannot be inquired into in eminent domain proceedings, except on cross-examination.
Neeley v. Western Allegheny R. Co., 68. A. 829; Kansas City R. Co. v. Weidenmann, 94 P. 146; Becker v. P. & R. T. R. R. Co., 35 L. R. A. 583; In re Thompson, 14 L. R. A. 52; Rea v. P. & C. R. R. Co., 140 A. S. R. 721; Board of Levee Commissioners v. Dillard, 25 So. 292; Board of Levee Commissioners v. Nelms, 34 So. 149.
But we are not compelled to rely on this rule in order to ask for a reversal of the judgment rendered in the court below, because of the further rule, which, we think, is established by reason and the weight of authority, to the effect that the price paid in other condemnation proceedings concerning the same project, whether in a condemnation proceeding, or in contemplation of an eminent domain proceeding, renders such sale incompetent as evidence, because such sale is not a voluntary sale, but is in the nature of a compromise.
Oregon R. R. & N. Co. v. Eastlack, 20 Am. & Eng. Ann. Cas. 692; Pacific Railway & Navigation Co. v. Elmore Packing Co., 31 Ann. Cas. 371.
This court has uniformly held that the measure of damage in an eminent domain suit is the difference between the fair market value of the property as a whole before and after the taking.
State Highway Commission v. Chatham, 161 So. 675; State Highway Department v. Blackburn, 160 So. 73.
Gilbert & Cameron, of Meridian, for appellees.
In the judgment of appellees, no extended argument is required in this case for the reason that only one question is presented to the court; namely, was it error for the court to admit in evidence the value of the Petit and Hawkins property purchased by the Highway Department, said property being immediately across the street from the property proposed to be condemned by the Highway Department
We respectfully submit that this record furnishes a complete answer to the contention of appellant when it takes the position that this transaction was a different one from that which ordinarily takes place when property is sold on the market.
We contend that the appellant, by the purchase of the Petit property immediately across the street from the Buchanan property, thereby fixed, by way of admission, the value of the Buchanan property. When it was shown that the property was similar in kind and character and in the same neighborhood, the price paid by the Highway Commission for this property was an admission of its value, and in the eminent domain proceedings, whereby the Buchanan property was involved, it became and was highly competent and proper for the admission of the Highway Department to be introduced in evidence as throwing light upon the value of the property across the street.
Board of Levee Commissioners for Yazoo & Mississippi Delta v. Nelms, 34 So. 150; 2 Lewis, Eminent Domain, sec. 478; 10 Am. & Eng. Ency. of Law, p. 1155; Wyman v. Lexington, etc., R. Co., 13 Met. 316.
The market value of the property is established when other property of the same kind has been the subject of purchase or sale to so great an extent and in so many instances that the value becomes fixed.
Sloan v. Baird, 162 N.Y. 330; Murray v. Stanton, 99 Mass. 345.
Under the eminent domain statute, the damages accruing to the remaining property were properly recoverable in this case, and the jury heard testimony as to these damages, and actually viewed the premises, and determined from all of the testimony, plus their view of the premises, the fair value of their award.
It is important that the rule which excludes evidence of the price paid by the condemnor for other lands for use in the same enterprise should not be confused with another rule also generally adopted, which is that evidence of the price received from voluntary sales of neighboring land, similar in character to the land taken, and made at or near the time of the taking, is ordinarily admissible.
10 R. C. L., par. 188, pages 220, 221 and 222.
The testimony showing other sales of land in the same vicinity and at or near the same time was admissible in order to aid the jury in determining the value of the land involved as well as the damages occasioned to other lands.
Curley v. Jersey City, 83 N. J. L. 760, 85 A. 197; Hadley v. Freeholders of Possaic County, 73 N. J. L. 197, 162 A. 1132; Chicago & W. I. R. Co. v. Heidenreich, 98 N.E. 567; St. Louis, K. & N.W. Ry. v. Clark, 25 S.W. 192; Laing v. United N. J. R. R. & Canal Co., 25 A. 409; Levee Commissioners v. Lee, 85 Miss. 508.
The only testimony offered by the Highway Commission touching the difference in value of the property before and after taking was the testimony of the witness shorts. This witness fixed the difference in value before and after taking at the sum of two thousand five hundred dollars.
It will be observed that this witness did not make any allowance...
To continue reading
Request your trial