Opinion
No. 33134.
May 9, 1938.
1. EMINENT DOMAIN.
In proceedings to condemn strip of land through farm for highway purposes, permitting jury to consider evidence of danger to cattle and people crossing highway in arriving at depreciation of value of farm was error (Code 1930, section 1491).
2. EMINENT DOMAIN.
Where no peculiar, special, or different value is shown to be inherent in land taken from that of entire tract, there is no valid reason why the condemnor should not pay the owner the average value per acre.
3. EMINENT DOMAIN.
In highway condemnation proceedings, fact that testimony of witnesses was objected to at close of testimony of each rather than as testimony was given was not fatal, where complete cross-examination was required to demonstrate that witness' original estimate of damage was unsound.
4. EMINENT DOMAIN.
In highway condemnation proceedings, permitting witness to fix a depreciation of value of tract because highway cut it off from remainder and then pyramid damages by estimating the costs of fences, wells, and the like to restore tract to a stock farm status was error.
5. EMINENT DOMAIN.
In highway condemnation proceedings, jury should have been advised by the evidence that the measure of damages to be awarded to the owner should be the difference between the market value of the entire tract before and after the taking (Code 1930, section 1491).
6. EMINENT DOMAIN.
Each highway condemnation case must be governed by its own circumstances.
7. EMINENT DOMAIN.
The many items which may arise in a highway condemnation case in so far as they show a depreciation of owner's property by the taking are never competent as separate items of recoverable damage (Const. 1890, section 17).
8. COURTS.
The statute providing for trial of eminent domain cases before judge in vacation simply confers on judge of county court that jurisdiction which had been conferred on the county court in term time (Laws 1936, chapter 247, amending Code 1930, section 693).
APPEAL from the circuit court of Newton county. HON. D.M. ANDERSON, Judge.
E.R. Holmes, Jr., Assistant Attorney-General, for appellant.
The fact that appellee's residence was situated on the east side of the farm and facing old Highway No. 15, and the fact that the new highway crossed the place behind the residence and the barns at about 600 feet, or more, therefrom, was not a fact which could be considered by the jury in this case as the residence was not disturbed, the barns were not disturbed, and the old Highway No. 15 was not disturbed. In other words, any damage to the residence or the barns by virtue of the re-location of Highway No. 15 was too remote and was not a legal damage because old Highway No. 15 ran and would continue to run, so far as the testimony in this case shows, in the same place that it had always run. It is true that the road would become a county or local road instead of a state highway, but it is further true that the same physical road would remain.
It is also clear that the facts which were taken into consideration by the witnesses for the appellees, that is, those elements of damage with reference to digging a well on the west side of the road; the damage to persons and property occasioned by cars on the highway; the maintenance of the fences in the future; the damage by virtue of cattle crossing the road; the damage by virtue of loss of time in crossing the road; the damage by virtue of the fact that the road ran behind the residence, and all of the other immaterial, speculative and imaginary elements of damage which were thrown in by the witnesses for the appellees in their efforts to build up a large and substantial figure of damages, are directly in conflict with the holding of this court in the recent cases decided by this court with particular reference to the State Highway Commission, being the cases of:
State Highway Commission v. Brown, 176 Miss. 23; State Highway Commission v. Chatham, 173 Miss. 427; State Highway Commission v. Randle, 180 Miss. 834; Y. M.V.R.R. Co. v. Jennings, 90 Miss. 93.
We respectfully submit that in this cause for the benefit of the State Highway Commission and for the benefit of all of the lawyers of the state as well, this court should decide the effect of Chapter 247 of the Laws of 1936 on the position of the county judge in eminent domain suits, that is to say, whether he simply acts ministerially and in lieu of a justice of the peace and follows all of the provisions of Chapter 26 of the Code of 1930, or whether he acts judicially and all of the provisions of Chapter 16 of the Code should be followed by him, and second, whether or not the measure of damage, as set out in Section 1491 of the Code, is the sole and only true measure of damage in an eminent domain suit and if so, whether or not, in attempting to make out its case herein, the defendant has overstepped the bounds of that instruction and particularly that part of it with reference to damages resulting to him as the consequence of the taking.
Stone Stone, of Decatur, for appellees.
Appellant had the opportunity of requesting of the trial court at the conclusion of the taking of testimony an instruction or instructions setting out clearly and definitely the method to be followed by them in arriving at a proper verdict. This was not done. The only instruction requested was the statutory instruction set out in Section 1491, Code 1930 of Miss. Appellant had its day, it had its opportunity, and should not now be heard to complain if it did not see fit to avail itself of them.
In the case of Highway Department v. Buchannan, 175 Miss. 186, this court held that unless a sale reflected the fair market value of the property it was not competent to be used as a standard in measuring values.
We submit that one fact stands out in this record which will warrant the verdict rendered by the jury. This plantation was a combination stock farm and general utility farm and through the years had been developed to the point where it could be utilized as such with the least possible expense, in that cattle could go from the barns and lots at will to the pastures and back; barns had been built, lanes had been constructed, water works had been put in, so that the stock farm feature was, under the proof, the chief value of this plantation. But with the new road running as it does, the pasture lands are completely separated from barns, feed and water with no safe way for the cattle to go back and forth as before. Where formerly the owner of this plantation could approach the barns from the west side at any point desired, now with the new road, there is prepared one and only one road crossing for a little over one mile that this road runs through this plantation.
In the case of Parker v. State Highway Comm., 173 Miss. 213, this court speaking through McGowen, J., said: "Municipalities, as well as all persons, natural or artificial are included within its prohibitions, and a municipality which lowers an established grade of a highway causing abutting lots to be injured must compensate the owner for all damage sustained thereby." This court then cited City of Vicksburg v. Herman, 77 Miss. 211, and many other cases decided by our court, and then quoting from the Herman case relative to the words, "or damaged", in our Constitution said: "The words are without limitation or qualification. They embrace within their inhibition all those attempting to convert private property to public use, — artificial as well as natural persons, municipal and other corporations alike, — and they cover all damages of whatever character."
Kwong v. Levee Comm., 164 Miss. 250.
Chapter 247 of the Acts of 1936, simply amends Section 963, Code of 1930, by giving to the county court vacation jurisdiction to try eminent domain cases, etc. Certainly it will not be contended that Chapter 247, Laws of 1936, gives jurisdiction to the special eminent domain court created by Chapter 26, Code of 1930, and particularly Section 1481 thereof.
But if we be in error in our conclusion that Chapter 247 Laws of 1936 simply amends Section 963 of the Code of 1930, by giving to the county court vacation jurisdiction to try eminent domain cases; and if it be conceded, which we deny, that appellant was entitled to a de novo trial in the circuit court; yet we insist that this right was waived by appellant and cannot here be insisted upon. This suit was brought by appellant as petitioner, in the forum selected by appellant.
Argued orally by E.R. Holmes, Jr., for appellant, and by H.R. Stone, Sr., for appellee.
The Mississippi State Highway Commission, appellant, filed condemnation proceedings against Mrs. Ruth M. Day as owner, Federal Land Bank of New Orleans, La., mortgagee, and F.E. Taylor, a party in interest, appellees. That petition was filed with the circuit clerk, who by order directed that the presiding judge of the county court of Newton county be summoned to preside, and that a special eminent domain court be organized on a certain day named, which was in vacation. The circuit clerk issued a summons for eighteen jurors to appear then and there, from which a jury was to be selected by order of the judge of the county court. A jury of twelve men was impaneled, the evidence was submitted, the jury viewed the premises, and awarded the appellees $5,500, and judgment to that effect was entered.
Thereupon the appellant prosecuted an appeal to the circuit court on the transcript of the record made before the county judge and assignment of errors. The circuit court had the record submitted to it, and thereon affirmed the judgment of the eminent domain court. No request was made of the circuit court for a trial de novo, or objection of any kind interposed as to the procedure in that court.
A motion for a new trial was overruled; one ground of the motion being that the verdict was excessive.
The main assignment of error is that the verdict or award was excessive in that, over appellant's objection, improper elements of damages to the owner for taking the strip were allowed, and that the value of the land testified to by appellees' witnesses was unreasonable and unwarranted, and necessarily entered into the award by the jury. As no cross-appeal is prosecuted, we are not called upon to say upon whom rested the burden of proof as to value.
The land condemned was a hundred-foot strip running from south to north through the farm in question. The actual land taken was 123-10 acres, and was to be used in the construction of a new highway No. 15, which was to be hard surfaced. On the east side of the highway there were 742 acres on which were situated the dwelling houses, barns, outhouses, wells, troughs and water facilities for livestock. The dwelling house faced old highway No. 15, which was graveled and ran along the eastern line of this farm, and which was not to be disturbed. Running west from the dwelling house there was a lane leading to the pasture; this pasture contained 400 acres, was inclosed by fences, and was adapted for use as a grazing place for cattle. In addition to the pasture, there were a hundred acres of good corn and cotton land on the west side of the condemned strip.
The engineer of the appellant testified from the plans and specifications of the new highway that it proposed to construct approaches for a farm road a short distance north, and some distance farther north it also proposed to construct a concrete culvert of sufficient dimensions to permit cattle to easily pass under. This culvert was to be located in a dry branch, and was mainly for the purpose of permitting water to pass through during rains or "wet" seasons.
With this general picture (admitted facts) we come now to the conflict of evidence as to the amount of award to the owner. Haddon, a witness for the owners, was asked this question by counsel for the appellees: "Mr. Haddon, what is the full measure of damages as you understand it that this property owner will sustain because of the running of this road through this property as it is run and for the purpose for which it is run, taking into consideration the fair market value of the land taken and all damages, if any, resulting to the other land and the other property as a direct result of the taking. That is, taking into consideration every element of damages that arises as you see it?" The witness answered, "$7000.00," and further stated that the land taken was average of the entire farm. On cross-examination he was questioned at length as to how he arrived at $7,000 as the value of the property. His replies summarized are about as follows: The value of the 12 3-10 acres actually taken amounted to $1,000; the entire farm was valued at $25 an acre; depreciation in fair value to the owner of the 500 acres west of the highway at $6 per acre, or $3,000, because of being cut off from the barns and water located on the east side; it would be necessary to build fences along the highway on both sides in order to use the pasture adapted to raising cattle, and this would amount to $650; a well would be needed to provide water for the pasture and this would be $750. and for general inconvenience and appearance. $1000, thereby reducing his general estimate from $7,000 to $6,400. In these figures the witness took into consideration the danger to cattle and to people crossing the highway. The appellant objected to the danger element, and its objection was overruled by the court.
Coker placed the entire compensation due the owners at $8,000, and arrived at this figure in about the same general way Haddon had adopted, except he placed the fair market value of the land taken at $1,800, or $150 an acre, evidently taking into consideration the depreciation to the whole farm by running the highway through it. He did not estimate any amount as to the depreciation of the 500 acres, but estimated a sum as compensation on account of danger to man and beast. His evidence, however, did not warrant a verdict in excess of $4,000.
Ware testified along the lines adopted by Haddon and Coker, but fixed $8,150 as compensation due the owner, the fair market value of all the land at $30,000, and of the 12 3-10 acres at $1,800. He thought a fence on both sides of the entire highway would amount to $600, and that $2,500 should be allowed because of the cattle having to cross the road; that $2,500 should be allowed for the 500 acres west of the road, and damages annually in upkeep of fence.
At the conclusion of the evidence of the last two witnesses, appellant moved to exclude their estimates of depreciation in value because neither of the witnesses had sustained the total testified to by methods proper to be considered by the jury in making an award to the owner; the amounts being speculative and imaginary. The motion was overruled.
A short time before the trial Mr. Taylor had made a written contract to purchase the land from Mrs. Day. He testified as a witness for appellant that the place was worth from $25,000 to $35,000. The consideration which he had agreed to pay was the amount of the mortgage debt, about $13,000, but he stated that there was other consideration, and he had obtained the land at a bargain.
Some witnesses for appellant fixed the value of the condemned land at $25 an acre, and the highest estimate of damages to the remainder did not exceed $1,200.
The only instruction the jury had was the form found in section 1491, Code of 1930.
After a careful study of all the evidence we feel that the verdict of the jury was excessive to the extent of two or three times a fair and just award. It will at once be observed that the appellees, by their examination of their witnesses, approximately but not entirely followed the rule found in the above instruction fixing compensation for the value of the land to the owner plus the damages to him as a consequence of the taking. Each of the witnesses had answered the question as to the value of the remainder of the land by fixing the total in his opinion, and in so doing considered as elements thereof such sums as the particular witness thought to be proper and lawful. Two witnesses for the appellees laid much stress on the danger to man and beast prospective on the use of the highway for motor vehicles. The court was in error in allowing the jury to consider such evidence in arriving at depreciation of the value of land. See Yazoo M.V.R.R. Co. v. Jennings, 90 Miss. 93, 43 So. 469, 122 Am. St. Rep. 312.
Again the record inescapably shows that the evidence valuing the land actually taken at from $1,000 to $1,800 was purely speculative and unreasonable. The highest value placed on the entire acreage in the farm was $29 an acre, whereas the jury was allowed to consider a range of from $80 to $150 an acre. Where no peculiar, special, or different value is shown to be inherent in the lands taken from that of its entire tract, there can be no valid reason why the condemnor should not pay the owner the average value per acre.
In fixing the compensation due the owner, these witnesses fixed a depreciation of the value of the 500-acre tract because the highway cut it off from the remainder, and then pyramided the damages by estimating the costs of fences, wells, and the like to bring it back to the status of a stock farm, taking into consideration the contention that the west tract was peculiarly adapted to cattle raising.
Appellees say, however, that the objection of appellant to the testimony of Ware and Coker was at the close of the evidence of each, and should have been interposed as the cross-examination proceeded. There was no other way it could have been presented intelligently. Ware, for reasons which only he knew, testified that the owner should be awarded $8,100 for the land taken and the damage to the remainder of the tract. Until the witness had shown that his estimate as to the total was unsound, which was after all his evidence was heard, no one could say that his original estimate was wrong. The complete cross-examination was required to demonstrate the facts.
Appellees further urge that we must uphold the award because Haddon's evidence which the jury had a right to believe upholds and sustains it. His evidence viewed in the strongest light does not sustain a verdict for as much as $3,500. Haddon duplicated his so-called damages, said that the west tract would depreciate $3,000 in value because it would be separated from the remainder of the farm, and then proceeded to add to this amount the cost of fences and wells and the like to restore it to a stock farm status.
In this case the jury had no more guide than would have been invoked in an eminent domain court if a justice of the peace had been a part of such court. The jury should have been advised by the evidence that the measure of damages to be awarded to the owner should be the difference between the market value of the entire tract before and after the taking. Sullivan v. Board of Supervisors, 61 Miss. 271; Balfour v. Louisville, N.O. T.R.R. Co., 62 Miss. 508; Schlicht v. Clark, 114 Miss. 354, 75 So. 130; City of Jackson v. Wright, 151 Miss. 829, 119 So. 315; 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. Brown, 176 Miss. 23, 168 So. 277; Mississippi State Highway Comm. v. Williamson (Miss.), 179 So. 736.
While this case was peculiarly one for the rule stated in the cases, supra, it is true that each case must be governed by its own circumstances. Kwong v. Board of Mississippi Levee Com'rs, 164 Miss. 250, 144 So. 693.
The mass of figures hurled at the jury in this case as elements of damages no doubt confused them and wrested the verdict here reviewed.
The object of our statute is to enforce section 17 of the Constitution of 1890 in so far as to ascertain what amount the owner fairly loses when his land is taken by eminent domain for public improvement, and the many items which may arise in a case in so far as they show a depreciation of the owner's property by the taking are never competent as separate items of recoverable damage. See Schlicht v. Clark, supra.
We are of the opinion that chapter 247, Laws of 1936, simply conferred upon the judge of the county court that jurisdiction which had been conferred upon the county court in term time. If the appellant was not entitled to a trial de novo on appeal from the county court to the circuit court, then the appeal from the award of the county court judge does not alter that situation. The Highway Commission prosecutes its appeal here, and had presented it to the circuit court on the record, in accordance with the decisions of this court in the cases of State v. Carraway, 160 Miss. 263, 134 So. 846, and City of Hattiesburg v. Pritchett, 160 Miss. 342, 134 So. 140. In those cases it was held that the circuit court did not err in refusing to grant the appellant an appeal from an award of a county court, a trial by a jury de novo. However, in those cases, section 693, Code of 1930, as amended by Laws 1936, c. 247, as to practice and procedure in cases arising formerly in a general justice of the peace court or a special tribunal thereof, was not cited by the court nor called to the attention of the court. In the case at bar we will not now consider the serious question as to practice and procedure in county courts and on appeal therefrom, for the reason that the judgment of the circuit court on appeal herein was not void, and the proper construction to be placed on section 693 was not raised in the courts below, nor here.
Reversed and remanded.