State Highway Commission v. Chatham

• Decision Date: 20 May 1935
• Docket Number: 31736
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY COMMISSION v. CHATHAM et al

161 So. 674

173 Miss. 427

STATE HIGHWAY COMMISSION v. CHATHAM et al

No. 31736

Supreme Court of Mississippi

May 20, 1935

Division B

1. EMINENT DOMAIN.

When location of public highway is adjacent to particular property which is hurt by fact that highway is so near in location, no increase in value for part taken for highway is to be assessed because of detriment to remaining part which has resulted solely from general fact that highway has been located in that immediate vicinity.

2. EMINENT DOMAIN.

Highway commission has duty to locate highways and construct them and, when right of way is procured, highway may be located adjacent to and abutting upon private property, and owner has no claim for damages because highway by its location and solely upon that account has been detrimental to abutting property.

3. EMINENT DOMAIN.

When highway is located adjacent to abutting property and commission requires strip off such land, damage incident solely to location of highway adjacent to property cannot be brought into assessment of damages for taking of strip, in so far as the actual detriment is one which the owner shares with all others of the public similarly situated.

4. EMINENT DOMAIN.

When part of property is taken for highway, consequential damages solely because of increased traffic to be carried on highway and incidents of such traffic cannot be assessed.

5. EMINENT DOMAIN.

In proceeding to condemn land for relocation of highway judgment making award for strip of property taken would be reversed in view of improperly admitted testimony as to value of property before and after relocation of highway, where main element in damages considered by witnesses was detriment to property, because its quietude and seclusion was impaired.

6. EMINENT DOMAIN.

Assignment that verdict in condemnation proceeding was inadequate would not be reviewed in absence of motion for new trial.

HON WM. A. ALCORN, JR., Judge.

APPEAL from the circuit court of Bolivar county, HON. WM. A. ALCORN JR., Judge.

Condemnation proceeding by the State Highway Commission against Mrs. V. S. Chatham and others. From the judgment, plaintiff appeals and defendants cross-appeal. Reversed and remanded on direct appeal; affirmed on cross-appeal.

Affirmed on cross-appeal; reversed and remanded on direct appeal.

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

The highway commission certainly has no control and certainly cannot be held responsible for the fact that the cars on the highway may, in the future, kick up some dust, or make loud noises, or shine lights in bedroom windows, or cause inconvenience generally.

In the case of Yazoo, etc., R. R. Co. v. Jennings, 90 Miss. 93, 43 So. 469, it was held that in determining the damage to a farm by the building of a railroad across it, proof that laborers would stop to look at the train, their teams would run away and that foreign grasses would be scattered over the farm, should not be considered as elements of damage.

If a railroad company is not to be held liable for the contingent, remote and problematical elements of damage, which its own trains may, in the future, cause, how much stronger a case it is and how much more reasonable a principle it is that the highway commission should not be held liable for similar contingent, remote and problematical damages which may, in the future be occasioned, not by its own motor vehicles, but by the motor vehicles of other and separate entities, either individual or corporate, over which it has not the slightest control and for whose actions it is not accountable in any event.

Damages which are too remote will not be considered as elements of damage in a condemnation proceeding.

Schlicht v. Clark, 114 Miss. 354, 75 So. 130.

The real question on this appeal for the decision of this court is whether or not testimony is admissible which tends to show the results which may follow from the location of this highway No. 61 on the eastern side of the property owned by the appellees.

The contention of appellant here is that such testimony is inadmissible, because it is too remote, because it is speculative, because, if it arises, it must arise in the future, and because the damage, if any, which may arise in the future is caused by the intervention of a distinct and separate legal entity over which appellant has no control and for whose actions appellant cannot be held responsible.

Schlicht v. Clark, 114 Miss. 354, 75 So. 130; State Highway Commission v. Knight, 170 Miss. 60, 154 So. 263; Shepard v. United States, 290 U.S. 96, 78 L.Ed. 196.

Sillers & Roberts, of Rosedale, and W. B. Alexander, Jr., of Boyle, for appellees, and cross-appellants.

The verdict of the jury is grossly inadequate, and is contrary to and not responsive to the evidence, and therefore this court should correct the error and render such judgment as the evidence directs in this case.

20 C. J. 1121-1122, par. 491; Shreveport v. Noel, 38 So. 137; City of Shreveport v. Youree, 38 So. 135; Opelousas, Gulf & N.E. Ry. Co. v. St. Landry Cotton Oil Co., 46 So. 810; Burton v. Eureka Bank, 84 So. 247; Robertson v. Cloud, 47 Miss. 208; Leavenworth v. Board of Mississippi Levee Commissioners, 140 So. 518; Joe Duck Kwong et al. v. Board of Mississippi Levee Commissioners, 144 So. 693, 164 Miss. 250; Brandon et al. v. Zerkowsky, 148 So. 797.

All of the witnesses testified that they knew the fair cash market value of residential real estate in the town of Shaw and the fair cash market value of this property before and after the taking, and were thoroughly qualified, meeting all the requirements of the rule, to testify as to the fair cash market value and the damage done to this property.

Southerland on Damages, sec. 1089; 22 C. J. 516-18, 578-80; I. C. R. R. Co. v. Shaw, 113 Miss. 272, 74 So. 123; Kaleb v. State, 39 Miss. 721; Levee Board v. Dillard, 76 Miss. 641; Levee Commissioners v. Nelms, 82 Miss. 149.

The value of real estate or the value of any interests therein, or any element of value therein, or its market value, may be estimated by one acquainted with the value of that class of property, who has seen the land and had adequate opportunities for observation, as by making sales or purchases, and is possessed of the requisite ability to make a reasonable inference.

22 C. J. 587-90; Lawandoski v. Wilkes-Barre, etc., R. Co., 35 Pa.Super. 10; Levee Commissioners v. Dillard, 76 Miss. 641; Railroad v. Walden, 101 Miss. 781, 58 So. 538.

In determining the damage done to property, its market value, where a part thereof is taken for public use, one of the primary elements to be considered (taking into consideration the use to which the property is devoted at the time of the taking) is the use to which the part which is taken is to be put.

Alabama Power Co. v. Keystone Lime Co., 67 So. 833; Lorain St. R. Co. v. Sinning, 17 Oh. Cir. Ct. 649, 6 Oh. Cir. Dec. 753; Hewett v. Pittsburg, etc., R. Co., 19 Pa. Sup. 304; Little Rock Ins. Co. v. Woodruff, 49 Ark. 381, 4 Am. Rep. 51, 5 S.W. 792.

The rule is that any evidence which tends to show the market value of the land, or the depreciation of such value, which might be or would influence an ordinarily prudent man who desired to purchase the property is always competent.

20 C. J. 985-86; Schlicht v. Clark, 114 Miss. 354, 75 So. 130.

In the case now before the court the elements to be considered and the testimony offered by the witnesses, was not for the purpose of establishing independent items of damage resulting to the owner in the nature of individual or personal damages by reason of the happening or nonhappening thereof, but are elements going directly to the market value of the property involved in this case, "Elements which tend to show the effect of the improvement on the value of the property."

Y. & M. V. R. R. Co. v. Jennings, 90 Miss. 93, 43 So. 469.

OPINION

Griffith, J.

Appellees are the owners of a lot at the corner of Front street and McKinley avenue in the town of Shaw in Bolivar county; the lot having a width of one hundred five feet on Front street and a depth of two hundred ten feet along McKinley avenue. Upon this lot there had been erected a modern residence with concrete basement and heating equipment. This residence property heretofore was highly desirable and peculiarly valuable because of its convenient location, which, at the same time, was in a quiet and somewhat secluded place, free from highway traffic and the disturbance and other inconveniences incident thereto.

In 1934, in the permanent location of the main interstate highway known as United States highway No. 61, the highway commission determined to transfer the location from a route about one-fourth of a mile distant from the above-described property, and to cause the highway in its permanent location to follow McKinley avenue, which would carry the highway alongside appellees' property and to the east thereof for the two hundred ten feet mentioned. The total width of...