Tysons, Inc. v. Mississippi State Highway Commission, No. 50845

• Decision Date: 21 February 1979
• Docket Number: No. 50845
• Parties: TYSONS, INC. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
• Court: Mississippi Supreme Court

Page 939

367 So.2d 939

TYSONS, INC. v. MISSISSIPPI STATE HIGHWAY COMMISSION.

No. 50845.

Supreme Court of Mississippi.

Feb. 21, 1979.

McGehee, McGehee & Torrey, H. B. Mayes McGehee, Meadville, for appellant.

R. L. Netterville, Natchez, for appellee.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

ROBERTSON, Presiding Justice, for the Court:

The Mississippi State Highway Commission filed eminent domain proceedings against Tysons, Inc., in the Special Court of Eminent Domain of Franklin County, to condemn a 1.52 acre strip of land out of a 6-acre tract fronting on the south side of U.S. highways 84 and 98, between the towns of Bude and Meadville. U.S. highways 84 and 98 will be widened to four lanes and hereafter will be limited access highways.

The Petition also stated:

"Petitioner would represent and show that it needs and desires the Right of Immediate Possession as is provided by law."

Petitioner requested:

"(T)hat this Court will appoint a disinterested, knowledgeable person qualified to make an appraisal of the property and report as provided by Section 11-27-83, Mississippi Code of 1972 Annotated; that upon a final hearing hereof a determination be made as to the amount Petitioner shall pay the Defendant as due compensation; that upon return of a verdict and payment as provided by law, Petitioner be authorized to take and use the property as hereinabove set out."

Pursuant to the Petitioner's request, the Court, on October 20, 1977, appointed a "disinterested, knowledgeable person" to appraise the property. The court-appointed appraiser filed his Statement of Values with the Clerk of the Court on October 31st, 1977, and on November 9, 1977, the Court entered its Order granting Petitioner the right of immediate possession, provided Petitioner deposit with the Clerk of Court 85% "of the amount of compensation and damages, as determined by said appraiser."

On November 17, 1977, the Court entered this Order to Disburse Funds:

"The petitioner having heretofore deposited with the Clerk the statutory amount of eighty-five per cent (85%) of the amount of the compensation damages as determined by the court-appointed appraiser;

"It is, therefore, ordered and adjudged that the Clerk be, and she is hereby, authorized and directed to disburse said proceeds as provided by law."

Thereafter, this cause was tried on January 24, 1978, and the jury returned a verdict for $9700 damages.

Appellant contends that there was a total variance between the pleadings filed by the Commission and the proof adduced by the Commission at the trial, that the verdict was not supported by credible evidence as to value, and that the verdict is The Commission filed with the circuit clerk this statement of values:

grossly inadequate and contrary to the overwhelming weight of the evidence.

STATEMENT OF VALUES

Comes now State Highway Commission of Mississippi pursuant to the provisions of Section 11-27-7, Mississippi Code of 1972 Annotated, and would represent and show that (1) the fair market value of the property to be condemned, as of the date of filing the Petition is $6,600.00; (2) the damages to the remainder is $1,100.00; and (3) the total compensation and damages to be due is $7,700.00.

The elements of damage are: Severance damage for loss of utility and temporary easement.

Petitioner would represent and show that the highest and best use of said land is commercial.

Before putting on its only appraiser, Lamar Hooker, counsel for the Commission, repeated, and dictated into the record, the statement of values filed by the Commission. The Commission's counsel said:

"Judge, may I state for the record that the Appraisal Department for the State Highway Department has placed in the record their estimate of the fair market value of the property to be condemned as of the date of the filing of the petition as $6,600.00. Their position was that the damages to the remainder was $1,100.00, and they filed with their statement of value that the total compensation and...