Wheeler v. State Highway Commission, 38058
| Citation | 55 So.2d 225,212 Miss. 606 |
| Decision Date | 26 November 1951 |
| Docket Number | No. 38058,38058 |
| Parties | WHEELER et ux. v. STATE HIGHWAY COMMISSION. |
| Court | United States State Supreme Court of Mississippi |
Ramon L. Burgess, Tupelo, for appellant.
J. P. Coleman, Atty. Gen. by Mathew Harper, Jr., Asst. Atty. Gen., John M. Kuykendall, Jr., Jackson, for appellee.
The State Highway Commission, by eminent domain proceedings, expropriated for highway purposes 3.6 acres of land belonging to appellants. There was an original award of nine hundred dollars, and upon appeal to the circuit court a like award was made.
The assignments of error argued are (1) the verdict is against the overwhelming weight of the evidence; (2) exclusion of certain testimony; (3) errors in instructions; and (4) improper argument to the jury.
The first assignment. The testimony as to damage ranged from $742.50 to $3,500. The former figure was estimated by an engineer employed by appellee who detailed the several items of damage. The latter estimate was made by the appellants who did not itemize their appraisals but explained in general terms that this was a lump sum based upon what the land was worth to them. Other witnesses for appellants stated their estimates in like manner. Some witnesses stated generally that their estimates were based upon the value of the land before and after the taking, although all were stated 'in a lump sum', without elaboration.
A view of the premises was requested and the jury made an inspection. In view of all these considerations, we find no substantial basis for displacing the award. Smith v. Mississippi State Highway Commission, 183 Miss. 741, 184 So. 814.
The second assignment. The witness, M. L. White, was questioned as to the future plans of the Commission with regard to maintaining the existing highway which ran in front of the property of appellants. The court sustained an objection thereto. There was no error here. There was no testimony as to anticipated loss of business by the owners who operated a store on the premises. Moreover, the Commission is authorized to relocate highways in the public interest and is under no duty to maintain the old route. Wilkinson County v. State Highway Commission, 191 Miss. 750, 4 So.2d 298. Furthermore, the Commission is without authority to agree with a county to maintain an existing highway indefinitely. Upon its abandonment the former road reverts to the county. It is not liable in damages for such abandonment. Quin v. Mississippi State Highway Commission, 194 Miss. 411, 11 So.2d 810. There remained reasonable access to both the old and the new routes. Recognition is not denied to the right of a landowner in a proper case to recover for a direct damage occasioned by actual impairment of ingress, yet this is a factor to be taken in account in applying the 'before and after' rule.
The third assignment. It is complained that the trial court erred in excluding by instructions consideration of any loss of profits from business which appellants may suffer. In the first place there was, as above stated, no direct testimony as to loss of business or profits. Such contention must rest, if at all, upon the incident that the store building would not front upon the new highway. Any consideration of this latter factor was left to the jury in assessing residual damage. Whether the owner would relocate his buildings is commended solely to his judgment. The end result of the taking leaves open the necessity or desirability of such relocation, and if disadvantage should appear to the jury, it was left free to integrate this fact into its estimate of the over-all depreciation in the market value of the property. The instructions complained of, taken with other charges given to both parties, made it clear that separate items of damages were not to be taken into account except insofar as they threw light upon the difference in value before and after the taking.
The following instruction was given for appellee: 'The court instructs the jury for the petitioner in this case that you are not to take...
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