Summary
In Ligon v. Indian Creek Drainage District, etc., 247 Miss. 279, 284, 156 So.2d 810, 811 (1963), the lower court was affirmed on its finding that the presence of amounts of clay in land being taken and its quality were "based on too much speculation and upon too little actual quest for facts, for it to be of great weight."
Summary of this case from Miss. St. Hwy. Com'n v. St. Catherine Gravel Co.Opinion
No. 42681.
October 14, 1963.
1. Eminent domain — damages — not inadequate.
Allowing $7,331.25 for easement for construction and maintenance of flood water retarding structure on 56.24 acre tract of which slightly more than 28 acres was subject to clay lease was not inadequate, where executor of lessee failed to prove his damages with any reasonable degree of certainty.
Headnote as approved by McGehee, C.J.
APPEAL from the Chancery Court of Panola County; KERMIT R. COFER, Chancellor.
James Stone Sons, T.H. Freeland, III, Oxford; Ralph O. White, Batesville, for appellant.
I. The decision of the Chancellor as to the presence of commercial clay on and off the condemned area, and as to its quality, quantity and market value, was contrary to the uncontradicted testimony.
II. The decision of the Chancellor is against the overwhelming weight of the evidence.
III. The lower court erred in failing to make allowance for damages to the leasehold interest on that portion of the leasehold which was not taken.
IV. The allowance of damages by the lower court is grossly inadequate and not commensurate with the overwhelming weight of the evidence as to damages.
V. The lower court erred in apportioning damages between the owner of the fee and the owner of the leasehold.
Collation of authorities: Arkansas State Highway Comm. v. Cochran (Ark.), 327 S.W.2d 733; Board of Levee Commissioners for Yazoo-Mississippi Delta v. Dillard, 76 Miss. 641, 25 So. 292; Board of Mississippi Levee Commissioners v. Johnson, 66 Miss. 248, 6 So. 199; Hulitt v. Jones, 220 Miss. 827, 72 So.2d 204; Ivey v. Geisler, 213 Miss. 212, 56 So.2d 501; Joe Duck Kwong v. Board of Mississippi Levee Commissioners, 164 Miss. 250, 144 So. 693; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Lee v. Indian Creek Drainage District Number 1, 246 Miss. 254, 148 So.2d 663; Louisville, N.O. T.R. Co. v. Ryan, 64 Miss. 399, 8 So. 173; Mississippi State Highway Comm. v. Brooks, 239 Miss. 308, 123 So.2d 423; Mississippi State Highway Comm. v. Madison County, 242 Miss. 471, 135 So.2d 708; Mississippi State Highway Comm. v. Strong, 240 Miss. 756, 129 So.2d 349; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Skrmetti v. Mississippi State Highway Comm. (Miss.), 43 So.2d 649; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Warren County v. Harris, 211 Miss. 80, 50 So.2d 918.
McClure, Fant McClure, Sardis, for appellee, Indian Creek Drainage District.
I. Burden of proof on appellant and certificate of appraisal is prima facie evidence of value. Hemphill v. Mississippi State Highway Comm., 245 Miss. 33, 145 So.2d 455; Tennessee Gas Transmission Co. v. Wolfe, 159 Ohio St. 391, 112 N.E.2d 376; Sec. 4692, Code 1942; 18 Am. Jur., Eminent Domain, Sec. 343 p. 986.
II. Lump sum award. Lee v. Indian Creek Drainage District Number 1, 246 Miss. 254, 148 So.2d 663.
III. Appellant's evidence fails to show that value of Hicks land was enhanced by a clay deposit. City of Austin v. Cannizzo, 153 Tex. 324[ 153 Tex. 324], 267 S.W.2d 808; Mississippi State Highway Comm. v. Brooks, 239 Miss. 308, 123 So.2d 423; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; State Highway Comm. v. Brown, 176 Miss. 23, 168 So. 277; Swift Co. v. Housing Authority of Plant City (Fla.), 106 So.2d 616.
IV. Appellee's evidence supports Chancellor's finding. Buchanan v. Hurdle, 209 Miss. 722, 48 So.2d 354; City of Jackson v. Landrum, 217 Miss. 10, 63 So.2d 931; Early v. United States Fidelity Guaranty Co., 181 Miss. 162, 176 So. 720; Hastings v. California Co., 241 Miss. 160, 129 So.2d 379; Hays v. Lyon, 192 Miss. 858, 7 So.2d 523; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Laurel Racing Co. v. Jones, 223 Miss. 666, 78 So.2d 879; Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790; Smith v. Van Norman, 234 Miss. 526, 106 So.2d 897; Stringer v. Craft (Miss.), 55 So.2d 869; Stringer v. Stringer, 209 Miss. 326, 46 So.2d 791; Sullivan v. Keller, 239 Miss. 458, 123 So.2d 695; Thames v. Thames, 222 Miss. 617, 76 So.2d 707; Towles v. Towles, 243 Miss. 59, 137 So.2d 182; Warren County v. Harris, 211 Miss. 80, 50 So.2d 918; 18 Am. Jur., Eminent Domain, Sec. 355 p. 999.
Threadgill Hicks, Columbus, for appellee, Dewitt T. Hicks.
I. The Chancellor is the sole judge of the damages resulting from the acquisition of private property through eminent domain proceedings, and the judgment of the lower court in this case is supported by substantial evidence and is manifestly correct. Mississippi State Highway Comm. v. Strong, 240 Miss. 756, 129 So.2d 349; Sec. 4693, Code 1942.
II. The lower court properly apportioned the award between appellant and appellee Hicks according to their respective interests. Arkansas State Highway Comm. v. Cochran (Ark.), 327 S.W.2d 733; Lee v. Indian Creek Drainage District Number 1, 246 Miss. 254, 148 So.2d 663.
The Indian Creek Drainage District Number One of Panola, Quitman and Tunica Counties filed this suit in the Chancery Court of Panola County to obtain the approval by the court of an assessment for damages made by the commissioners of the District, and when the case was tried before the chancellor he increased the amount of damages assessed by the commissioners for an easement over a 56.24 acre tract of land belonging to the appellee Dewitt T. Hicks. The amount of the appraisal made by the commissioners of the District as damages resulting to the land by the easement was in the sum of $7,031.25. The chancellor added the sum of $300.00 to this amount and rendered a decree in favor of the landowner Dewitt T. Hicks and his lessee H.E. Ligon for the total sum of $7,331.25. H.E. Ligon was the lessee of the landowner Dewitt T. Hicks for the clay deposits under a lease of slightly more than 28 acres of the 56.24 acre tract of land. This lease was acquired on November 9, 1940. The easement sought to be obtained was for the construction and maintenance of a "flood water retarding structure" on the 56.24 acre tract. The decree was in a lump sum in favor of Hicks, the landowner, and the executor George H. Ligon, appellant. As to the right of the chancellor to apportion the damages assessed see Lee v. Indian Creek Drainage District, 246 Miss. 254, 148 So.2d 663.
H.E. Ligon expended various sums of money in installing a clay mining operation on or near the land, erecting a clay shed or warehouse and removing a considerable overburden of soil, thereby rendering the merchantable clay, if any, on the land more accessible.
On August 9, 1943, the said H.E. Ligon subleased to Lee F. Powell his rights under the Hicks clay lease and then on account of having built the clay shed and expended various sums of money in removing the overburden of soil and rendering the clay more accessible, he was able to lease the land covered by the Ligon lease, and to obtain a consideration of 30¢ per ton instead of the 10¢ per ton he was to pay the landowner Hicks "for all clay shipped during the life" of the lease and also a minimum royalty of $600.00 per year to the lessor H.E. Ligon, and a royalty to the landowner Hicks of not less than $25.00 per year.
The said H.E. Ligon died testate during the year 1962, and the appellant George H. Ligon, who was the sole surviving heir at law and sole devisee under the will, was appointed executor of his estate, and on February 26, 1962, the cause was revived against the said executor and the landowner Dewitt T. Hicks, and an answer was filed on February 26, 1962, by the said George H. Ligon, executor of H.E. Ligon, deceased.
Upon the trial of the cause it was shown that the minimum royalty to which the landowner Dewitt T. Hicks was entitled had in the meantime been regularly paid, and at least the minimum royalty due the owner of the clay lease in the amount of $600.00 per year had likewise been fully paid.
On May 1, 1957, the clay lease had been assigned by the lessee Lee F. Powell to the Kentucky-Tennessee Clay Company; and on October 16, 1961, the Kentucky-Tennessee Clay Company executed an agreement in favor of the appellee Indian Creek Drainage District to subordinate all of its rights in favor of the said District at and for the sum of only $1.00, and thereafter on February 28, 1962, the said Kentucky-Tennessee Clay Company terminated its lease. Also the landowner was satisfied with the amount of damages assessed and did not appeal.
The subordination of the lease by the Kentucky-Tennessee Clay Company in favor of the Drainage District at a consideration of only $1.00 was taken into consideration by the chancellor in increasing the appraisement made by the Drainage District commissioners from $7,031.25 to only $7,331.25. Then too the chancellor considered that the testimony of the only geologist introduced by the appellant was "based on too much speculation and upon too little actual quest for facts, for it to be of great weight". This witness was unable to do more than estimate the average thickness of clay deposit under the 28 and a fraction acres of land covered by the clay lease in question. And it was not shown definitely that any clay was ever removed from the land covered by this particular lease.
While the appellant claimed damages in the sum of $38,500.00 he did not prove his alleged damages with any reasonable degree of certainty.
Moreover, H.E. Ligon had been granted only a determinable fee in all clays upon the land, and while the several leases granted to the lessee the right to collect a specified amount per ton of clay and a certain amount of royalty per annum for all clays shipped, it is left doubtful as to whether the leases were explicit enough to obligate the lessee to "mine and ship" any clay from the land. All clays "shipped from the land" in question, if any, were paid for by the respective lessees. Then too the lessees were given the right to terminate the lease by refraining from mining any more clay or failing to pay the minimum royalty to the landowner and to the owner of the clay lease.
(Hn 1) We are therefore of the opinion that the decree of the chancellor allowing the sum of $7,331.25 to the appellant and the landowner should be affirmed in the proportion allowed.
Affirmed.
Kyle, Ethridge, Gillespie and Rodgers, JJ., concur.