Opinion
No. 36635.
January 12, 1948.
1. APPEAL AND ERROR.
The Supreme Court disapproved practice of trying in circuit court appeals from eminent domain court together because of difficulty of referring the evidence in record to case to which it was addressed, but would not reverse on that account where appellant had agreed to trying appeals together.
2. EMINENT DOMAIN.
Where appeal to circuit court from eminent domain court was tried on theory that two original tracts of land owned by owner and a connecting strip of land constituted one tract for condemnation purposes, condemnor could not contend in Supreme Court that the tracts did not form one tract where no ruling of the circuit court relative thereto was challenged.
3. EMINENT DOMAIN.
Where part of land is taken by state in eminent domain proceedings, the owner is entitled to damages measured by the difference between the fair market value of the whole tract immediately before the taking and the fair market value of land remaining after the taking.
4. EVIDENCE.
Witnesses, in arriving at estimate of what value the land would have after state built proposed highway over part of owner's land which, subtracted from value of land before the taking, would determine damages, were entitled to consider any necessary inconvenience that would result from building highway across the land that would probably be considered by a would-be purchaser, but were not entitled to place their estimate on their idea of what damage for inconveniences to the owner would be.
APPEAL from the Circuit Court of Scott County.
Greek L. Rice, Attorney General, by John Kuykendall, Jr., Assistant Attorney General, for appellant.
Due compensation is made the owner of a tract of land when a part thereof is taken for public use when he is paid the value of the land taken and the damages, if any, which result to him as a consequence of the taking.
Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565; State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277; Code of 1942, Sec. 2760.
When a portion of a parcel of land is taken for the public use, the owner is entitled to recover for the injury to the remainder of that parcel only, and cannot recover for injury to separate and independent parcels of land which he may happen to own in the same neighborhood. In determining what constitutes a separate and independent parcel of land, when the property is actually used and occupied, unity of use is the principal test.
18 Am. Jur. 910, Sec. 270.
To constitute a unity of property within the rule, there must be such a connection or relation of adaption, convenience, and actual and permanent use as to make the enjoyment of the parcel taken reasonably and substantially necessary to the enjoyment of the parcels left, in the most advantageous and profitable manner in the business for which they are used. If the separate tracts of which a part of one is taken are not put to a joint use, they cannot be considered as one parcel in assessing damages to the land not taken.
29 C.J.S. 982.
Danger to man and beast prospective on the use of the highway by motor vehicles is not a proper element of damage in a proceeding of this nature.
State Highway Commission v. Day, 181 Miss. 708, 180 So. 794.
The question of inconvenience of driving cattle across the new highway could not be considered at all in the instant case, for an injury of this nature is such as is shared by the general public.
The true measure of damages is the value of the property in terms of money before the taking, as compared with such value thereafter. The amount of the verdict here indicated acceptance by the jury of the improper measure of damages.
Mississippi State Highway Commission v. Smith, 187 Miss. 613, 192 So. 448.
Where it appears from the record that prominence was given to evidence admitted erroneously, even though there was other evidence which was competent, it cannot be said with confidence that same was harmless.
State Highway Commission v. Dornbusch, 187 Miss. 653, 193 So. 783. Mize, Thompson Mize, of Gulfport, and Frank F. Mize, of Forest, for appellees.
The general rule on the measure of damages is that the compensation allowable is the difference between the market value of the entire tract before and after the taking.
State Highway Commission v. Day, 181 Miss. 708, 180 So. 794; State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277; Mississippi State Highway Commission v. Treas, 197 Miss. 670, 20 So.2d 475.
The expense of fencing and inconvenience were admissible and proper elements of damage. Evidence of this nature was purely incidental as facts to be considered by the jury in fixing the value of the land remaining after the taking of a part thereof.
Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Commission v. Smith, 202 Miss. ___, 32 So.2d 268; Mississippi State Highway Commission v. Treas, supra.
This cause came to the court below, as did the case of Mississippi State Highway Commission v. Loper et al. (Miss.), 33 So.2d 288, on appeal from an eminent domain court, and they were, by agreement, tried in the court below at the same time, before the same jury, and are embraced in the same record in this Court. The trouble we have had in referring the evidence in the record to the case to which it was addressed, and which the jury also must have had, causes us to register our disapproval of this practice, but as the appellant agreed thereto, we will not reverse on this account.
Land owned by the appellee Dodson formerly consisted of two separate tracts, a quarter of a mile apart, of about forty acres each which will be here designated as the east and west tracts, the intervening land being owned by Mrs. Dodson's father. A highway crosses the southeast corner of the west tract, cutting off a small portion thereof. This eminent domain proceeding was for the purpose of moving this highway a short distance to the east.
The appellee is a farmer and also engaged to some extent in the dairy business, the east tract being used mainly as a pasture for his cattle, his residence, barn and cattle pens being on the west tract, west of the highway which the Commission desires to move to the east. The appellee's cattle have been driven from the west to the east tract and back across the intervening land owned by his father-in-law. In February 1946, the appellee purchased from his father-in-law a strip of land fifty feet wide connecting his east and west tract for the alleged purpose of a passageway from one tract to the other, but when this case was tried it had not been used therefor. The appellee's cattle were driven from one tract to the other as theretofore. The new highway passes, or will pass, across this strip of land, and this proceeding is to condemn 6/100 of an acre thereof. In February 1946, prior, of course, to the purchase of this land by the appellee, negotiations were begun by the Highway Commission to purchase a right-of-way over it for the new highway.
The case was tried in the court below, and without objection insofar as the record discloses, on the theory that the two original tracts of land, and the strip of land connecting them, together formed one tract for condemnation purposes. Counsel for the appellant contends here that they do not form one tract, but no ruling of the court relative thereto is challenged and we therefore cannot consider it.
The measure of damages sought to be recovered, and to which the evidence was pointed, is "the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking." Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565, 569. The evidence for the appellant was that this value was about $25, the judgment for the appellee was for $750, but several of his witnesses placed his damages at a much higher figure. In arriving at their estimate of what the value of this land, treating it as an entire tract, would be, after the highway was built across it, the witnesses had the right to take into consideration any necessary inconvenience that would result therefrom that would probably be taken into consideration by a would-be purchaser thereof; but the appellee's witnesses did not confine themselves to such facts in estimating what this fair value would be, but placed their estimate on their idea of what damage for these inconveniences to the present landowner would be. It may be difficult to prevent witnesses from doing this in this sort of a proceeding, nevertheless it must be done, as will appear from our former decisions. One fact that influenced all of the appellee's witnesses is that the appellee would have to drive his cattle across the highway to and from the two tracts. No reference was made in the court below to the fact that this would have to be done should the highway have been permitted to remain as it was when the Highway Commission decided to remove it a short distance to the east from where it then was.
Reversed and remanded.