Opinion
No. 36567.
October 27, 1947. Suggestion of Error Overruled November 24, 1947.
1. EMINENT DOMAIN.
In proceeding to condemn land through a farm for a highway, court properly instructed that basis of diminished value or damages was value of tract as a whole before and after the taking.
2. EMINENT DOMAIN.
In proceeding to condemn land for a highway through a farm, factors of personal inconvenience and building of new improvements, in addition to estimates of over-all depreciation in market value in which such elements would be integrated, were inadmissible.
3. EMINENT DOMAIN.
The test of inconvenience as an element of damages for a condemnation is objective or external, not purely subjective, and inconvenience to be considered is not that peculiar to one who by reason of age, disinclination, or preference may react, through sentiment or prejudice, adversely to readjustment of his boundaries, but extent to which these factors will be taken into account by those whose present or prospective interests will create a market value.
4. EVIDENCE.
Where defendant in proceeding to condemn land for a highway through a farm did not furnish, by accurate disclosure of number of acres actually owned by him rather than by his sons, a multiplier by which to multiply average value per acre, witnesses' appraisements based on assumption of ownership of entire tract were unwarranted.
APPEAL from the circuit court of Leake county. HON. PERCY M. LEE, J.
Greek L. Rice, Attorney General, by John Kuykendall, Jr., Assistant Attorney General, for appellant.
An award of damages for the property not taken in a condemnation proceeding, which included an award for damages for a large number of acres not legally owned by defendant in the proceeding, and the legal title of which was actually in a defendant in a separate condemnation proceeding, subjected the condemnor to double payment of damages to the same land.
Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565; Tillman v. Lewisburg N.R. Co., 133 Tenn. 554, 182 S.W. 597; 18 Am. Jur. 912, Sec. 271.
The before and after taking rule is not applicable.
Richardson v. Board of Levee Commissioners, 68 Miss. 539, 9 So. 351.
Mere inconvenience which might result from the construction of a public highway through appellees' farm was inadmissible as a separate item of damages.
Mississippi State Highway Commission v. Hillman, supra.
To include in the value of the land actually taken compensation because it split the place into, followed by additional opinions of other types of damage, was a pyramiding of the damages, which was error.
State Highway Commission v. Day et al., 181 Miss. 708, 717, 180 So. 794.
The taking of a portion of a person's land for public use in a condemnation proceeding places no obligation on the condemnor to pay the expense of the relocation or replacement of buildings of that property owner on the land not taken.
State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277; Mississippi State Highway Department v. Blackburn, 172 Miss. 554, 160 So. 73.
Uncertain, remote and speculative testimony with reference to the inconvenience in driving cattle across the road, based on such an entirely speculative standard, was error.
State Highway Commission v. Brown, supra; State Highway Commission v. Randle, 180 Miss. 834, 178 So. 486; State Highway Commission v. Day, supra; Mississippi State Highway Commission v. Hillman, supra.
After eliminating all of the testimony regarding damages that were fanciful and not recoverable, and other incompetent evidence, the amount of the verdict was excessive, and this case should be reversed.
State Highway Commission v. Day, supra.
O.H. Barnett, Jr., of Carthage, for appellee.
The jury viewed the premises in question, not only the strip of land for the road but the buildings and improvements that had been separated from the pasture and farm land, together with the cuts and fill made by the road builders. The jury had the right to take into consideration what it saw along with the testimony of the witnesses that it heard testify. The jury was better qualified to pass judgment on the values and damages in this case than most of the witnesses that testified.
Appellees' title was sufficient to support his claim for damages.
Funderburk v. City of Columbus, 117 Miss. 173, 78 So. 1.
The instructions for the appellant and appellees taken together as a whole correctly state the law of this case.
The witnesses for appellees were testifying the best they knew how, and when one said "It split my place open" the jury knew what he meant, that it simply did just that, "split his place open." That is what each witness based his values and damage on. We do not agree that this testimony referred to by appellant was a pyramiding of the damages. I think the witnesses, jury and trial judge knew and understood that the fact the place was "split open" was the basis of the before and after taking values. As has been held in many of the recent cases by this Court, each case must be considered alone and in the light of the circumstances surrounding that particular case. This Court has correctly held that inconvenience cannot be considered as a separate item of damage, but inconvenience is of necessity in many cases, and we say in this case, a part of the damage, which may be considered as bearing on the market value of the property before and after taking.
The judgment was not the result of bias, passion and prejudice, but was a fair, calm decision made after an actual view of the premises and after hearing all the witnesses testify and give their varied opinions as to values and damages which ranged from $1000 to $6000 damages. The jury would have been amply warranted to have returned a much larger verdict than it did.
The appellant instituted eminent domain proceedings against a tract containing 2.5 acres to be used for state highway purposes. The judgment appealed from is that of the circuit court whereby there was an award of $2,825.
We proceed at once to the heart of the matter, which is a contention that the instructions for the defendant landowner authorized the jury to take into account improper bases for their appraisement.
The instructions as a whole properly set out the accepted bases of diminished value, or damages, as the value of the tract as a whole before and after the taking. Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565, and authorities cited therein. The following instruction for the defendant must be taken into account in adjudging whether the jury were led astray by the testimony:
"The court instructs the jury for the defendants that it is your duty to return a verdict for the defendants in in such sum as will fully compensate them for the land taken, and also for such damages, if any, as may result as a consequence of the taking."
The defendant set his damages at $6,000. The basis of his computation was the alleged market value of 392 acres of land as $20,000 prior to the expropriation and $14,000 afterwards. Upon the issue of his ownership of the 392 acres, the following testimony was adduced from the defendant:
"Q. . . . how many acres do you have on the west side of this road? A. Well I reckon I have got 7 or 8 acres in there. . . .
"Q. How many acres of land do you have on the east side of the new road? A. There is 380 acres over there of mine and my son's. . . .
"Q. About how much of it is in your name? A. Well I am paying taxes on all but 100 my boy owns, or half of it.
. . . .
"Q. Isn't it true that your son M.T. owns about 160 acres? A. Well I explained that this morning. They don't own anything now, that has all been settled, but it has not been remarked. . . .
"Q. Isn't it true that you just own about 160 acres according to the record? A. Yes.
"Q. The truth is, according to the record, you don't have over 60 or 70 acres there? A. They were up there for the purpose. They were going to help me educate the boys and I was not going to let them come to blame for it.
"Q. But in placing your $6000.00 estimate you are placing that damage to a tract of 392 acres? A. Well of course I don't use the south end of the land at all because I have not been down there all the time and my boys is separate from that. Everything is separate from the home place."
M.T. Smith, son of the defendant, testified that he, too, had a suit with appellant, and upon the question of ownership his testimony is as follows:
"Q. This 400 acres, really isn't a part of that in your name? A. It is to be mine when he dies and leaves it.
"Q. Don't you have a deed to it on record? A. Well the deed is recorded but I don't get possession as long as he lives. It would not make any difference whether it is 10 acres or 50 acres. I understand it is a matter of separation, damages because the highway crosses the land and cut it off like that.
"Q. Really your father don't have but 64 acres in his own name? A. He controls it as long as he lives."
It will be seen, therefore, that the assertion of ownership by the defendant is to be interpreted in the light of this testimony. Moreover, there were other elements of damage testified to by the defendant. These included the inconvenience of crossing the road to tend to his cattle, and the expense of building barns and other improvements on the east side of the highway to avoid such inconvenience. He valued the expropriated 2.5 acres at $1,000 per acre, because "It is worth $1000 an acre to split my place open." The highway left seven or eight acres on the west side where are located his home, barns, and outhouses, the remainder being on the east side, and chiefly pasture. The following questions were asked of and answered by the defendant:
"Q. You think they ought to pay you $1,000 an acre for the land that is in that right of way? A. Yes, sir.
"Q. That would be $2500 for the actual value of the 2 1/2 acres of land, then that will leave $3500 that you think they ought to pay you. A. No, I didn't count that land from six to seven thousand ($6000 to $7000) damage. I counted that on getting the buildings across there.
"Q. Well I just wanted to get a fair understanding as to how you arrived at that $6000. I believe you say now $2500 to pay you for the 2 1/2 acres of land? A. Well if I was to get what I want to split my Place open, that is what I would take and that is what I would ask, but I had nothing to say about it. . . .
"Q. I just want you to tell the jury how you arrive at the sum of $6000? A. Because it will take that at the very least, to put my barns and things across there, across that road.
"Q. In other words if you go over there and build new barns it would cost you that much? A. Or to move them over there so they would serve me as well as they do.
"Q. You mean by that, $6000 then would be for replacing the buildings? A. Well of course I am damaged either way, driving my cattle across the road.
"Q. But you can't put any actual value on that can you? A. No.
"Q. So you tell the jury that most of that $6000 would be expense of replacing or relocating the buildings? A. Yes, sir. . . .
"Q. How much of that $6000 do you say it would take to compensate you for inconvenience? A. I said rebuilding the buildings."
Objection to the foregoing testimony was overruled.
Witness G.W. Daugherty for the defendant testified that the value of the 2.5 tract was $125 or $50 per acre. He placed the entire damage at $4,000 on the assumption that the defendant owned 392 acres. Factors in his assessment included "ill convenience," which he rationalized as follows:
"Q. Well how many dollars and cents do you think would actually compensate him for that? A. Well it would be owing to how long he is going to live. I figure he would make a trip of about 300 or 350 yards three times a day backwards and forwards estimating a little better than a mile a day for the old fellow.
"Q. Now Mr. Smith is about 70 years old? A. Yes, right around that.
"Q. Well say give him ten more years — A. Well I figure he would walk a mile and a half a day for 365 days. Now you can figure it out.
"Q. How much do you think he ought to be paid for that? A. I think he ought to have ten cents a mile, that is what we pay.
"Q. Well that would be, 10c a day $36.50 a year? A. About 15 cents a day.
"Q. Well 365 days would be something like $50 a year? Ten years would be $500.00? A. Well that would be considered in making the estimate for damages. I would think he would take in all his travels he would have to perform between his residence and his farm, that would be my way of looking at it. . . .
"Q. Now you are placing that kind of an estimate on the assumption that he is the legal owner of 392 acres of land? A. Yes, sir.
"Q. Then if he just owned 160 or 166 acres how much damage do you think would be done him? A. Well it would not make a great deal of difference in the damage. That would be done for the ill convenience. It would not be the amount of land that he has, it would be the ill convenience to him. To get his convenience he would have to move his residence and his barn, so I say it would cost him considerably more than $4000, that would be my judgment to put him back."
Other witnesses fixed the value of the 2.5 acre tract at from $25 to $50 per acre, and the total damage at from $900 to $6,000. Some lump-sum estimates included inconvenience and replacement costs and some were without itemization.
We are of the opinion that the learned trial judge was in error in admitting the factors of personal inconvenience and the building of new improvements in addition to estimates of the over-all depreciation in market value in which such elements would be integrated. The test is an objective or external one and not purely subjective. The inconvenience to be considered is not that which is peculiar to one who by reason of age, disinclination or preference may react, through sentiment or prejudice, adversly to the readjustment of his boundaries. The test is the extent to which those, whose present or prospective interest will create a market value, will take these factors into account.
The quoted instruction authorized the jury to add these elements to the loss in market value. This circumstance is to be taken into account with the failure of the defendant to furnish, by an accurate disclosure of the number of acres actually owned by him and here affected, a multiplier which, operating upon an average value per acre would lead to a product representing either the prior market value or the extent of damage. Otherwise expressed, if the defendant in fact legally owned in his name only 100 acres with an average damage of $28.25 per acre, the award would represent a total loss. Of course, this result would follow if he owned 28.25 acres each of which was damaged $100.
The witnesses based their appraisements upon an assumption which this record does not justify.
Reversed and remanded.