Summary
calling the subtraction formula the "before-after" rule
Summary of this case from Oughton v. GaddisOpinion
No. 34137.
November 11, 1940. ON SUGGESTION OF ERROR.
1. EMINENT DOMAIN. Trial.
In eminent domain proceeding by the state highway commission to condemn a right of way for a public highway, burden of proof on issue of damages was on the commission, and instruction that burden was on property owner to establish damages sustained by taking of property was properly refused (Code 1930, secs. 1482, 1490; Const. 1890, sec. 17).
2. EMINENT DOMAIN.
Under constitutional provision that private property shall not be taken for public use except on "due compensation" being first made to the owner, "due compensation" is made when an owner is paid the value of land taken and the damages, if any, which result to him as a consequence of the taking without considering either general benefits or injuries resulting from the use to which the land taken is to be put, shared by the general public (Const. 1890, sec. 17).
3. CONSTITUTIONAL LAW.
Under constitutional provision that private property shall not be taken for public use except on due compensation being first made to the owner, what is due compensation is a judicial and not a legislative question (Const. 1890, sec. 17).
4. EMINENT DOMAIN.
The trial court, other than special eminent domain court created by statute, is not restricted in a condemnation proceeding to a particular formula when charging the jury on elements entering into determination of due compensation of landowner (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
5. EMINENT DOMAIN.
In an eminent domain proceeding, where a part of a larger tract of land is taken for public use, owner should be awarded difference between fair market value of whole tract immediately before taking and fair market value of that remaining immediately after taking without considering general benefits or injuries resulting from use to which land taken is to be put that are shared by general public (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
6. EMINENT DOMAIN.
Whether rule, that when a part of a larger tract of land is taken for public use the owner should be awarded 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 without considering general benefits or injuries resulting from the use to which land taken is to be put that are shared by the general public, is to be applied in condemnation proceeding depends upon facts of particular case (Code 1930, sec. 1480 et seq.).
7. TRIAL.
In proceeding to condemn a right of way for a public highway, instruction that property owners were entitled to compensation for property actually taken and for consequential damages without deduction for proposed benefits incident to public use of a highway, and instruction that measure of damages was difference between market value of property before taking and market value thereafter, did not state two different formulas for measuring damages, but merely set forth a formula for arriving at damages which landowners were entitled to (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
8. EMINENT DOMAIN.
In proceeding to condemn a right of way for a public highway, instruction that measure of damages was difference between fair market value of property before taking and fair market value of what remained after land was taken, but not containing qualification that general benefits and injuries shared by general public should not be considered and that market value of land must be that immediately before and after the taking, could not be complained of by condemnor on appeal where there was no evidence as to general benefits shared by general public, and there was no evidence as to the market value prior and subsequent to the taking (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
9. EMINENT DOMAIN.
In proceeding to condemn a right of way for a public highway, instruction that measure of damages was difference between market value of property before taking and market value after taking "and construction of said public road" was not erroneous by reason of inclusion of quoted words, since one of elements in determination of diminution of market value of land remaining after taking of a part for public use is use to which land taken is to be put (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
10. EMINENT DOMAIN.
The compensation awarded landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from the proper use of the land taken (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
11. EMINENT DOMAIN.
In proceeding to condemn a right of way for a public highway, landowners could not recover damages for specific injuries to their remaining land but evidence of such injury was competent if injuries to remaining land affected its market value (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
12. EMINENT DOMAIN.
In eminent domain proceeding, the rules of evidence for the proof of value of land are modified to meet circumstances of the situation, since land has no market value in the sense that stocks and bonds and other public securities have market value or even as the common and ordinary articles of commerce have such market value (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
13. EMINENT DOMAIN.
In proceeding to condemn a right of way for public highway, "market value" of property sought to be condemned is the price which it will bring when it is offered for sale by one who desires, but is not obliged to sell it, and is bought by one who is under no necessity of having it (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
14. EMINENT DOMAIN.
In proceeding to condemn a right of way for public highway, "market value" of land may be shown by evidence of the condition of the land and its surroundings, its improvements and capabilities, and circumstances and conditions tending to depreciate the property are as competent as those which are favorable (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
15. EMINENT DOMAIN.
In proceeding to condemn a right of way for a public highway, it was improper to admit evidence of expense incurred by owners in building a fence and rebuilding chicken yard fence and re-establishing a fishpond that was partly on the land taken and destroyed by construction of highway, where evidence was admitted in such form as to suggest that such expenses might be considered as a separate item of damage and not simply as facts bearing on market value of remaining land (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
16. EMINENT DOMAIN.
In proceeding to condemn a right of way for a public highway, it was error to admit evidence that landowners were damaged in a certain sum from inconvenience resulting from increased distance to be traveled to the public road since such inconvenience was a fact to be considered in fixing the market value of the land remaining after the taking of a part thereof but not as a separate item of damage (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
17. EMINENT DOMAIN.
In proceeding to condemn a right of way for a public highway, it was error to admit evidence of the value of a number of trees that were on the land taken as a separate item of damage, since the compensation to be awarded should be estimated for the land as land and not for the materials which compose it and the term "land" embraces its natural products growing thereon such as trees (Code 1930, secs. 1480 et seq., 5006; Const. 1890, sec. 17).
18. EMINENT DOMAIN.
In proceeding to condemn a right of way for public highway, it was error to admit evidence that condemnor had been requested but refused to construct a passageway under highway connecting two severed portions of landowners' property and that had it been constructed damages would have been greatly reduced, since condemnor was under no duty to construct underpass notwithstanding that market value of remainder of property left to landowners would have been thereby enhanced, lessening damages (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
19. EVIDENCE.
In proceeding to condemn a right of way for a public highway, witness should not have been permitted to testify that market value of land after the taking was at a certain sum arrived at by adding to value of land taken aggregate of specific items of injury and expense, since specific items of injury could not be considered as separate elements of damage but only as bearing on market value of remaining land (Code 1930, sec. 1480 et seq.; Const. 1890, sec. 17).
APPEAL from the circuit court of Greene county; HON. ARTHUR G. BUSBY, Judge.
E.R. Holmes, Jr., Assistant Attorney-General, for appellant.
The court erred in giving for the defendants both of the instructions shown on pages 315 and 316 of the record, respectively, for the reason that the two instructions state two different and distinct formulas for measuring damages, State Highway Commission v. Randle, 180 Miss. 834, 178 So. 486; and for the further reason that the words, "and construction of said public road" in the instruction on page 316, are inaccurate, State Highway Commission v. Prewitt, 192 So. 11.
The court erred in refusing appellant the instruction shown on page 319 of the record as to burden of proof.
State Highway Commission v. Williamson, 181 Miss. 399, 179 So. 736.
The court erred in refusing to sustain appellant's objection to testimony as shown throughout the record and in refusing to sustain appellant's motions to exclude, as shown in the record. This is particularly true as to the following testimony:
(a) The replacement costs, which were admitted. State Highway Commission v. Blackburn, 172 Miss. 554, 160 So. 173. (b) The testimony with reference to the value of quietude, beauty and privacy and with reference to the dust on the new road. State Highway Commission v. Chatham, 173 Miss. 427, 161 So. 674. (c) The uncertain, remote, and speculative testimony of the witnesses with reference to inconvenience, driving cattle across the road, etc. State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277; State Highway Commission v. Randle, supra; State Highway Commission v. Day, 181 Miss. 709, 180 So. 794. (d) The testimony allowed in the form of separate items of recoverable damage in addition to the testimony as to general damage and inconvenience was improper and inadmissible and was a pyramiding of damages. State Highway Commission v. Day, supra. (e) The cost figures which were admitted over objection as to the expense of re-locating buildings were improper and inadmissible. State Highway Commission v. Smith, 192 So. 448; Highway Commission v. Corley, 191 So. 119.
The verdict of the jury was excessive, being based on a mass of pyramided figures consisting of irrelevant facts and fanciful speculations.
State Highway Commission v. Randle, 180 Miss. 834, 178 So. 486; State Highway Commission v. Day, 181 Miss. 709, 180 So. 794.
The measure of damages in a condemnation suit in Mississippi is fixed first by the Constitution of 1890, Section 17. The framers of the Constitution simply said that the owners were entitled to "due compensation." Subsequently, in carrying out the constitutional mandate, the Legislature passed Chapter 26 of the Mississippi Code of 1930 and provided that "due compensation" should be measured by (1) the value of the property taken, plus (2) resulting damages to the remainder. The court, in construing Section 17 of the Constitution and Section 1491 of the Code, said, in City v. Higgins, 81 Miss. 376, 33 So. 1, that the true rule of estimating damages in condemnation cases was the difference in the market value of the property before and after the taking without considering general benefits or injuries shared by the public in general. This case was followed and quoted from in Schlicht v. Clark, 114 Miss. 354, 75 So. 130. This court further said in that case that the particulars or details as to the damaging of the property is not admissible as independent items of damage. Following City v. Higgins and Schlicht v. Clark a number of highway cases came before this court for consideration, and in many of these cases the statutory instruction found in Section 1491 was given to the jury as the measure of damages. In others the instruction with reference to the fair market value before and after the taking was given, and in several of them both instructions were granted. It has always been my contention that both of these formulas amount to exactly the same thing.
Speaking of the formula which he calls "difference between the fair market value of the property before and after the taking," Orgel in his "Valuation under Eminent Domain," section 50, page 158, says: "This formula has been applied by a number of courts. Whether or not it is simply another mode of expressing 'value of the land taken, plus damages to the remainder' is a difficult question, requiring a close study of the cases. From the viewpoint of a value theorist, at least, it is far more satisfactory than the more usual formula, for it recognizes the artificial nature of the dichotomy required by the latter."
It is our contention and conclusion, from reading parts of Orgel on Eminent Domain, that this court has been correct in its interpretation of the general rule, which is that due compensation, as defined by our Constitution, may be measured either by (1) the value of the land taken, plus damages to the remainder, or by (2) the difference between the market value of the whole property before and after the taking. In specific cases this court has seen fit to exclude from the consideration of the jury certain elements of damage as are discussed in Orgel's work. Damages which might mislead the jury, damages which are remote, speculative, etc., have been excluded.
State Highway Com. v. Brown, 176 Miss. 23, 168 So. 277; State Highway Com. v. Chatham, 173 Miss. 427, 161 So. 674; Highway Com. v. Day, 181 Miss. 709, 180 So. 794; Highway Com. v. Randle, 180 Miss. 834, 178 So. 486.
So we say that this court has taken the true formula for measuring the damages in eminent domain cases and has, as was necessary, applied this formula to each particular case as it arose. It is our contention that the court has properly applied the formula in every one of about twenty-five highway department cases.
In following the true formulas for arriving at due compensation in condemnation cases this court has held that damages which are speculative and remote are not admissible.
In the case of Mississippi State Highway Commission v. Williamson, 181 Miss. 399, 179 So. 736, appellees say that this court held that inconvenience was an element of damage. This court did not so hold. The inconvenience shown in the testimony of the witnesses in the instant case was a mere personal, speculative, and remote inconvenience, which might or might not occur in the future. The interference shown in the Williamson case was a concrete physical invasion of Williamson's property rights.
J.W. Backstrom, of Leakesville, for appellant.
It is unfair to allow the owner full damages for adjoining property without taking into consideration the benefits or the enhanced value of the adjoining parts by reason of the improvements. This to my mind is sound and is supported by authority from other states.
18 Am. Jur. 945, secs. 301, 302; Ala. Power Co. v. Keystone Lime Co., 191 Ala. 58, 67 So. 833; Ann. Cas., 1917C, 878; Schroeder v. Joliet, 189 Ill. 48, 59 N.E. 550, 52 L.R.A. 634; Metropolitan West Side Elev. Co. v. Stickney, 150 Ill. 362, 37 N.E. 1098, 26 L.R.A. 773; Washington Ice Co. v. Chicago, 147 Ill. 327, 35 N.E. 378, 37 Am. St. Rep. 222; Wabash St. L. P.R. Co. v. McDougall, 126 Ill. 111, 18 N.E. 291, 1 L.R.A. 207, 9 Am. St. Rep. 539; Manning v. Shreveport, 119 La. 1044, 44 So. 882, 12 L.R.A. (N.S.) 452; Putnam v. Douglas County, 6 Or. 328, 25 Am. Rep. 527; County Ct. v. Force, 106 W. Va. 581, 146 S.E. 530; Gosa v. Milwaukee Light, Heat Traction Co., 134 Wis. 369, 114 N.W. 815, 15 L.R.A. (N.S.) 531; Driver v. Western U.R. Co., 32 Wis. 569, 14 Am. Rep. 726.
There can be no question but the burden of proof is upon the Highway Commission to show its right to condemn and the description of the properties sought to be condemned, but when the condemnor shows the right to condemn and describes the property, we submit that the burden of proof as to the amount of damages then shifts to the defendant. This is reasonable, and it is sound. The theory of a law suit, and rightly so, is that each side presents the facts and the law applicable to that side, and the court and jury after hearing the evidence propounded by each side are then in a position to render a just and fair verdict. If the burden of proof is on the condemnor to show the damages he is placed in an awkward attitude of trying to show the jury the amount of damage he should pay for the property.
18 Am. Jur. 986, sec. 342; Lebanon Nashville Turnpike Co. v. Creveling, 17 S.W.2d 22, 65 A.L.R. 440; 2 Nichols on Eminent Domain (2 Ed.), 1139, sec. 432; Eastern Tenn. Power Co. v. Cleage, 5 C.C.A. 417; Tenn. C.R. Co. v. Campbell, 109 Tenn. 640, 75 S.W. 1012; Alloway v. Nashville, 88 Tenn. 510, 8 L.R.A. 123, 13 S.W. 123; Kansas City and Granview Railroad Co. v. Heake et al., 53 S.W.2d 981, 84 A.L.R. 1477; Cape Girardeau C.R. Co. v. Blechle, 234 Mo. 471, 481, 137 S.W. 974.
Inconvenience can never be an item of damage any more than quietude and seclusion of the property as was held in the cases of State Highway Commission v. Chatham, 161 So. 674, 174 Miss. 427, and State Highway Commission v. Randle, 178 So. 487, 180 Miss. 634.
O.F. Moss, of Lucedale, for appellees.
Section 4998 of the Code of 1930 provides that the State Highway Department shall use due diligence to protect growing crops and pastures and to prevent damages to any property not taken. It is plain that appellant did not do its duty in this respect. It could have constructed a $1200 underpass and have prevented possibly $2,000 of this damage, and we submit most earnestly that it was its duty under the statute to do so.
Appellant tells us that the instruction given for appellees shown on page 316 of the record is wrong, because it tells the jury to find for the appellees in an amount equal to the difference between the fair market value of the entire tract before and after the taking and construction of said public road. Appellant says the words, "and construction of said public road," should not have been in the instruction, which is absurd. This court in many cases has held that the raising of a grade or the lowering of a grade through the property or abutting the property is an element of damages.
State Highway Comm. v. Corley, 191 So. 119.
In the case of State Highway Commission v. Randle, 180 Miss. 834, 178 So. 486, the court did submit the question of damages to the jury on two different and distinct formulas for measuring damages. This was not done in the present case. The instruction shown on page 315 is the statutory instruction set out in the Code verbatim and states the law correctly. The instruction shown on page 316 of the record only goes a little farther and explains the instruction shown on page 315. The law set out in each and both of said instructions is the same.
In the case of Mississippi State Highway Commission v. Prewitt et al., 192 So. 11, it was merely held that in a condemnation proceeding the difference in the value of the land to be determined is the difference immediately before the taking and immediately after the taking of the land. The "taking" means the actual occupation by the condemnor. If the condemnor should never actually take possession of the land and construct the public road there would be no damages whatsoever. The land must be condemned and the public road constructed before the damages can be ascertained. Therefore, the instruction shown on page 316 of the record is entirely correct.
It is true that in some jurisdictions the burden of proof is on the defendant to show his damages, but not so in Mississippi where the statute controls.
Section 1490, Code of 1930.
Section 1491 of the Code of 1930 provides just what damages shall be allowed, and that said damages shall be according to the evidence adduced on the trial.
Under Sections 1490 and 1491 of the Code, there is no special burden on either party. Each party may introduce his evidence, and then the jury must return its verdict based on that evidence. Therefore, the instruction as to burden of proof was properly refused, because the law in the case was fully covered by other instructions given.
In the present case there was no evidence whatever offered by appellees as to the value of quietude, beauty and privacy and with reference to dust on the new road, except the testimony brought out by appellant itself on cross-examination, to which evidence it did not object.
State Highway Comm. v. Chatham, 173 Miss. 427, 161 So. 674.
There is no uncertain, remote and speculative testimony in this record such as is condemned in the case of State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277.
There is no testimony in this record as to separate items of recoverable damage in addition to the testimony as to general damage and inconvenience condemned in the case of State Highway Commission v. Day, 181 Miss. 709, 180 So. 794.
The damages awarded in this case were not pyramided as condemned in the case of State Highway Commission v. Day, 181 Miss. 709, 180 So, 794; but on the contrary the fair market value before the taking and the fair market value after the taking was clearly shown, and the figures as to each and every item of damages were merely given to show how this general depreciation was arrived at.
Measure of damages in condemnation proceedings is difference between fair market value of land before taking and fair market value of what remains after land is taken.
State Highway Comm. v. Brown, 176 Miss. 23, 168 So. 277.
The interference with ingress and egress to and from such property is damages within constitutional prohibition against taking and damaging of private property for public use.
Smith v. Miss. State Highway Comm., 183 Miss. 741, 184 So. 814; Miss. Highway Com. v. Day, 180 So. 794.
It is generally held that the interference which will require compensation in a condemnation proceeding must be a physical interference with the property itself or with the right which the owner has to the legal and proper use of same, and not merely such as causes personal inconvenience or annoyance.
20 C.J. 674, 675; King v. Railroad Co., 88 Miss. 456, 42 So. 204.
The damage in the present case is a physical interference with the property and not merely personal inconvenience and annoyance. Inconvenience and interference, as distinguished from mere personal inconvenience or annoyance, is an element of damages.
Sec. 14 of the Constitution; Heilbron v. St. Louis South-western R. Co., 52 Tex. Civ. App. 575, 113 S.W. 610, 979; Sec. 1491, Code of 1930; 20 C.J. 676, 783-785; Railroad Co. v. Doran, 17 Minn. 188; Re Ketcheson, etc., R. Co., 29 Ont. L. 339; 18 Am. Jur., sec. 266; Miss. State Highway Com. v. Williamson et al., 181 Miss. 399, 179 So. 736; Smith v. Miss. State Highway Comm., 183 Miss. 741, 184 So. 814.
Expenses incurred in the way of building fences, etc., are proper elements of damage.
20 C.J. 786.
The judgment of the court below was reversed at the last term of this Court by Division A thereof, 195 So. 679. The appellees have filed a suggestion of error thereto, which the Court in banc, after mature consideration, is of the opinion should be overruled, that the former opinion herein should be withdrawn and the one now to be rendered should be substituted therefor. The writer of the former concurring opinion withdraws it also.
This is an eminent domain proceeding in which the appellant seeks to condemn a strip of land through the appellees' farm for the construction of a highway thereon. It was begun in a special eminent domain court, created under Chapter 26, Section 1480 et seq., Code of 1930, and when it came to and was tried in the court below, the highway for which the land is sought to be condemned had been practically completed. The court below refused the appellant's request for an instruction charging the jury, "that the burden of proof in this case is upon the defendants to establish by a preponderance of the evidence the damages, if any, sustained by the taking of the property described in the application herein for the purpose of using and constructing a public highway."
Two of the instructions granted the appellees are as follows:
(1) "The defendants are entitled to due compensation, not only for the value of the property to be actually taken as specified in the application, but also for damages, if any, which may result to them as a consequence of the taking; and you are not to deduct therefrom anything on account of the supposed benefits incident to the public use for which the application is made;" and
(2) "The court instructs the jury for the defendants that the measure of damages in this cause is the difference between the fair market value of the property before taking and the fair market value of what remains after the land is taken and said public road constructed, or the difference between the fair market value of the entire tract before and after the taking and construction of said public road."
Among the appellant's complaints are, (1) the refusal of the appellant's requested instruction as to the burden of proof; (2) that the two instructions granted the appellees above set out "state different and distinct formulas for measuring damages;" (3) the inclusion of the words "and construction of said public road" in the second of these two instructions for the appellees; (4) over the appellant's objection, incompetent evidence was permitted to be introduced by the appellees as to the compensation that should be awarded them for the taking of the land.
No error was committed by the court below in refusing to instruct the jury that the burden of proof as to the damages to be here awarded was upon the appellees, the defendants in the court below. As was said in our former opinion [195 So. 681]: "We have no statute, which, in express terms, fixes the burden of proof in eminent domain proceedings. Section 1482 of the Code of 1930 provides, among other things, that the application for condemnation 'shall state with certainty the right and describe the property sought to be condemned, showing that of each defendant separately.' Section 1490 provides that evidence may be introduced by either party, but fails to fix the burden. The party who has the burden of proof may be determined by considering which would succeed if no evidence was offered, and by examining what would be the effect of striking out of the record the allegations to be proved. The onus must be on the party who, under such test, would fail. Porter v. Still, 63 Miss. 357; Town of Ackerman v. Choctaw County, 157 Miss. 594, 128 So. 757. Under those principles, could the Highway Commission stop by simply showing what it wanted for a right of way without going into the question of damages to the landowner? We think not. . . . The Highway Commission is the actor. It must make out its case before the landowner is called on to introduce evidence."
In order for us to decide the remaining questions presented, it will be necessary for us to determine what is the measure of the compensation or damages to be awarded the appellees for the taking of their land. There is an apparent conflict in the decisions of this Court dealing with the measure of damages, or compensation to be awarded the owner of land when a part thereof is taken in an eminent domain proceeding. That this conflict is apparent only, and not real, will appear when each of these decisions is viewed in the light of the facts of its case, and the particular questions which the Court was then considering. None of the cases required a statement of all of the law governing the measure of damages in an eminent domain proceeding, and neither does the one now being rendered.
Section 17, Constitution of 1890, provides that "private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof." 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 (Section 1491, Code of 1930, and a long unbroken line of decisions by this Court), without considering either general benefits or injuries resulting from the use to which the land taken is to be put, shared by the general public. Schlicht v. Clark, 114 Miss. 354, 75 So. 130; City of Meridian v. Higgins, 81 Miss. 376, 33 So. 1; Warren County v. Rand, 88 Miss. 395, 40 So. 481; Mississippi State Highway Dept. v. Blackburn, 172 Miss. 554, 160 So. 73; Mississippi State Highway Comm. v. Chatham, 173 Miss. 427, 161 So. 674; Mississippi State Highway Comm. v. Corley, 186 Miss. 437, 191 So. 119. Many of the cases hereinafter cited sustain the exclusion of general benefits shared by the general public without mentioning general public injury; as do also Brown v. Beatty, 34 Miss. 227, 69 Am. Dec. 389; Isom v. Mississippi Central R. Co., 36 Miss. 300; Penrice v. Wallace, 37 Miss. 172; New Orleans, etc., R. Co. v. Moye, 39 Miss. 374. The instruction prescribed by Section 1491, Code of 1930, for use in the eminent domain court there created, does not include the exclusion of injuries shared by the general public unless by necessary implication, as to which we express no opinion, for, be that as it may, due compensation under Section 17 of our State Constitution is a judicial and not a legislative question. Isom v. Mississippi Central R. Co., 36 Miss. 300. While the foregoing rule sets forth the elements that enter into the determination of what is "due compensation" in an eminent domain proceeding, the trial court, other than the special eminent domain court, created by Chapter 26, Section 1480 et seq., Code of 1930, is not restricted to a particular formula when charging the jury thereon. Mississippi State Highway Comm. v. Reddoch et al., 184 Miss. 302, 186 So. 298; Mississippi State Highway Comm. v. Huff (Miss.), 186 So. 314. All that is necessary is that the charge when applied to the facts of the particular case meet these requirements.
There is a conflict in the authorities elsewhere as to whether the formula now to be stated for measuring the compensation to be awarded the owner in an eminent domain proceeding, when a part of his land is taken for public use, embraces all the elements hereinbefore set forth that should enter into the determination thereof. This Court holds that it does. That formula is: When part of a larger tract of land is taken for public use, the owner should be awarded 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, without considering general benefits or injuries resulting from the use to which the land taken is to be put, that are shared by the general public. Sullivan v. Board of Supervisors, etc., 61 Miss. 271; Balfour v. Louisville, N.O. T.R. Co., 62 Miss. 508; City of Meridian v. Higgins, 81 Miss. 376, 33 So. 1; Warren County v. Rand, 88 Miss. 395, 40 So. 481; Schlicht v. Clark, 114 Miss. 354, 75 So. 130; Mississippi State Highway Dept. v. Blackburn, 172 Miss. 554, 160 So. 73; State Highway Comm. v. Chatham, 173 Miss. 427, 161 So. 674; State Highway Comm. v. Corley, 186 Miss. 437, 191 So. 119; Mississippi State Highway Comm. v. Williamson, 181 Miss. 399, 179 So. 736; State Highway Comm. v. Day, 181 Miss. 708, 718, 180 So. 794; Mississippi State Highway Comm. v. Prewitt, 186 Miss. 778, 192 So. 11; Mississippi State Highway Comm. v. Smith (Miss.), 192 So. 448; State Highway Comm. v. Brown, 176 Miss. 23, 33, 168 So. 277.
None of these cases state this formula in its entirety, but it is manifest from its opinions that this Court has not understood any of them as excluding any of the elements that enter into determining the compensation to be awarded the landowner that are embraced in the formula as hereinbefore set out. Each opinion as hereinbefore said must be construed in connection with the facts of the case the court was then considering, and the particular questions there presented for decision.
There are exceptional cases to which this before and after taking rule is not applicable. Richardson v. Board of Levee Commissioners, 68 Miss. 539, 9 So. 351. For example the taking of a few, and the damaging of a few more, acres of a large plantation might not decrease the market value of the plantation, nevertheless, its owner would have lost the value of the land taken and suffered the damage inflicted on a part of the plantation remaining. Whether the rule is applicable in a particular case depends on its facts. Mississippi State Highway Comm. v. Day, 181 Miss. 708, 180 So. 794. Nothing in this record indicates that the rule is not applicable to this case, consequently, it must be applied thereto. It follows therefore that the two instructions do not "state two different and distinct formulas for measuring damages." The before and after taking instruction simply sets forth a formula for arriving at the damages which the other instruction directs the jury to award the appellees. Cf. Mississippi State Highway Comm. v. Randle, 180 Miss. 834, 839, 178 So. 486, 179 So. 273.
The before and after taking instruction granted in the court below does not contain the qualification that general benefits and injuries shared by the general public should not be considered, and that the market value of the land must be that immediately before and after the taking, but the parties hereto cannot complain thereat. The appellees do not and could not for they requested the instruction, and the appellant cannot for it is not harmed thereby. There was no evidence by the appellant as to general benefits and none by the appellees as to general injuries, shared by the general public and none by the appellees or appellant as to market value prior or subsequent to the taking of the part sought to be condemned for highway purposes.
No error was committed by the use of the words "and construction of said public road" in the before and after instruction. One of the elements that enter into the determination of the diminution of the market value of the land remaining after the taking of a part thereof for public use is the use to which the land taken is to be put. The owner of the land is not restricted to the recovery of damages to the remainder from the mere taking of a part thereof, but is entitled to recover all special damages that may result to the remaining land from the public use to which the part taken is to be put. Sullivan v. Board of Supervisors, 58 Miss. 790, 803. After announcing this rule, it was there said: "It may be necessary to throw up an embankment on appellant's [the landowner's] land to construct the highway, and this may, in seasons of rain or unusual high waters, cause the adjacent land to be submerged, in which event he would be entitled to compensation for that injury."
The compensation awarded the landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from the proper use of the land taken, here specifically from the proper construction of the contemplated highway. Among the cases in which this Court has so held are Yazoo M.V.R. Co. v. Davis, 73 Miss. 678, 693, 19 So. 487, 32 L.R.A. 262, 55 Am. St. Rep. 562; Columbus G.R. Co. v. Taylor, 149 Miss. 269, 115 So. 200; and Robertson v. New Orleans G.N.R. Co., 158 Miss. 24, 35, 129 So. 100. Injuries to the appellees' remaining land from the use to which that taken is to be put affect, of course, its market value. Cf. Mississippi State Highway Comm. v. Prewitt, 186 Miss. 778, 192 So. 11.
This brings us to the appellant's complaints as to the evidence introduced by the appellees on the question of damages. The before and after taking rule being the measure of damages applicable to this case, it follows that the appellees cannot recover damages for specific injuries to their remaining land, but that evidence of such injuries is competent if, but not unless, they would affect the market value of the remaining land. Schlicht v. Clark, 114 Miss. 354, 363, 75 So. 130; Mississippi State Highway Department v. Blackburn, 172 Miss. 554, 160 So. 73; Mississippi State Highway Comm. v. Hudgins, 182 Miss. 518, 181 So. 719; Mississippi State Highway Comm. v. Randle, 180 Miss. 834, 178 So. 486, 179 So. 273; Mississippi State Highway Comm. v. Smith (Miss.), 192 So. 448; Mississippi State Highway Comm. v. Corley, 186 Miss. 437, 191 So. 119.
It is frequently difficult to determine whether evidence offered to prove the market value of land is relevant thereto for the line of demarcation between relevancy and irrelevancy is exceedingly close. "Land has no market value, in the sense that stocks, bonds, and other public securities have a market value, or even as the common and ordinary articles of commerce have such market value; and because thereof the rules of evidence for the proof of the value of the land are modified to meet the circumstances of the situation." Levee Commissioners v. Dillard, 76 Miss. 641, 650, 25 So. 292, 294. It would be impossible, and is wholly unnecessary, for us to here discuss the modifications of the general rules of evidence as to market value of land. It will be sufficient now to say that "the market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity of having it" (2 Lewis Eminent Domain (3 Ed.), Section 706; State Highway Comm. v. Buchanan, 175 Miss. 157, 190, 165 So. 795, 166 So. 537), in proving which, as to land, "All the facts as to the condition of the property (land) and its surroundings, its improvements and capabilities, may be shown and considered in estimating its value. Of course circumstances and conditions tending to depreciate the property are as competent as those which are favorable." Lewis, op. cit., section 706.
The appellees were permitted to introduce evidence that because of the taking of a part of their land by the appellant, it would be necessary for them to incur certain specific items of expense in the use and enjoyment of their remaining land, in such form as to suggest to the jury that each might be considered as a separate item of damage, and not simply as a fact bearing on the market value of the remaining land. This should not have been permitted. Among these items were: The expense of (1) building a fence on each side of the highway; (2) rebuilding a chicken yard fence, one side of which was on the land taken; and (3) re-establishing a fishpond that was partly on the land taken and destroyed by the construction of the highway. If these fences and the fishpond were reasonably necessary for the use and enjoyment of the remaining land, the determination of which was for the jury, the expense of constructing them could be considered by the jury in determining the market value of the land, but not as constituting separate items of damage.
The construction of the highway increased the distance to be travelled to and from the appellees' dwelling house and a public road, and they were wrongly permitted to introduce evidence that the inconvenience resulting therefrom damaged them to the amount of $500. Such inconvenience, and whether it could have been removed at a reasonable expense, was a fact to be considered by the jury in fixing the market value of the land remaining after the taking of a part thereof, but not as a separate item of damage. Mississippi State Highway Comm. v. Williamson, 181 Miss. 399, 407, 179 So. 736. After introducing evidence as to the value of the land taken, the appellees offered, and were wrongly permitted to introduce, evidence of the value of a number of trees that were on the land taken as a separate item of damage. The compensation to be awarded the owner of land taken "should be estimated for the land as land, and not for the materials which compose it," Lewis, op. cit., section 724, par. (b); Sec. 5006, Code of 1930, and the term "land" embraces its natural products growing thereon, e.g. trees, Harrell v. Miller, 35 Miss. 700, 72 Am. Dec. 154. Consequently, the value of these trees does not constitute a separate item of damage to the appellees, but was for consideration by the jury only in arriving at the value of the land on which they were.
The appellees' evidence that the appellant had been requested, but refused, to construct a passageway under the highway connecting the two severed portions of the appellees' property, and that had it been constructed the appellees' damages would have been greatly reduced thereby, should not have been admitted. The appellant was under no duty to construct such an underpass. Of course, it could have, had it so desired, constructed an underpass, and it may be that the market value of the remainder of the property would have been thereby enhanced, thus lessening the damages it would have to pay the appellees; but, it was under no duty to do this.
The witness Tillman testified that the market value of the land was $24,220 before, and $15,475.89 after, the taking, arriving at this second value by deducting from the first $8,744.11. He had testified as to the value of the land taken, and had also given his opinion as to the amount in dollars and cents the appellees would be damaged because of specific injuries to the remaining land about which he testified and expense necessary to be incurred by the owners in the use of it. The appellant's complaint here is not that a witness may not give his opinion as to the damages resulting from injuries to land, as to which we therefore express no opinion, but that Tillman arrived at the $8,744.11 by adding to the value he had placed on the land taken the aggregate of what he had said the specific items of injury and expense would be, thus doing indirectly what the jury itself were not authorized here to do, i.e., consider each of these specific items as separate elements of damage for which the appellees could recover and not merely as bearing on the market value of the remaining land. He should not have been permitted to do this.
Suggestion of error overruled.