Opinion
No. 43634.
May 17, 1965.
1. Eminent domain — damages — award not grossly excessive.
Under evidence, award of $16,000 for condemnation of right-of-way for limited-access parkway through farm owned by defendants was not so grossly excessive as to evince bias, passion and prejudice.
Headnote as approved by Ethridge, P.J.
APPEAL from the Circuit Court of Tishomingo County; N.S. SWEAT, JR., J.
J.O. Clark, Finch Finch, Iuka, for appellant.
I. There was no evidence to support the verdict of the jury in the sum of $16,000.00 for damages, and the same was against the overwhelming weight of the evidence, and was so excessive as to denote bias, passion and prejudice on the part of the jury. McDuffie v. Mississippi State Highway Comm., 239 Miss. 518, 124 So.2d 284; Mississippi State Highway Comm. v. Davis, 249 Miss. 643, 163 So.2d 729; Mississippi State Highway Comm. v. Hillcrest Farm, 252 Miss. 154, 171 So.2d 491; Mississippi State Highway Comm. v. Roche, 249 Miss. 792, 163 So.2d 874; Mississippi State Highway Comm. v. Stubbs, 239 Miss. 499, 124 So.2d 281; Mississippi State Highway Comm. v. Valentine, 239 Miss. 890, 124 So.2d 690.
Smith Smith, Corinth, for appellees.
I. The question of the amount of the damages which appellees are entitled to recover as the result of the taking of a portion of their farm for the use of the Natchez Trace is one peculiarly within the province of the jury to decide on conflicting evidence, and the Court will not set aside the verdict of the jury unless convinced that the jury did not respond to reason and that verdict rendered by it is so excessive that it denotes bias, prejudice, or passion on the part of the jury. City of Jackson v. Landrum, 217 Miss. 10, 63 So.2d 391; Mississippi State Highway Comm. v. Jones, 242 Miss. 35, 134 So.2d 155; Mississippi State Highway Comm. v. Pepper, 250 Miss. 755, 168 So.2d 307; Mississippi State Highway Comm. v. Turnipseed, 236 Miss. 764, 111 So.2d 925.
II. Rules of evidence relating to the value of land are modified because land does not have a market value in the sense that securities and articles of commerce have market value. Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Comm. v. Pepper, supra; Pearl River Valley Water Supply District v. Wood (Miss.), 172 So.2d 196; State Highway Comm. v. Buchanan, 175 Miss. 157, 166 So. 537.
III. Each case is decided on the facts peculiar to it. The wide disparity between the values and damages fixed by the appellant's witness and those fixed by the witness for appellees does not of itself compel a conclusion that the values of appellees' witness were exceedingly high and those of the appellant's witness correct, proper and adequate. The testimony of appellant's witness is not to be blindly followed. Mississippi State Highway Comm. v. Madison County, 242 Miss. 471, 135 So.2d 708; Mississippi State Highway Comm. v. Meridian Brick Co., 245 Miss. 349, 147 So.2d 302; Mississippi State Highway Comm. v. Pepper, supra.
CROSS-APPEAL OF CROSS-APPELLANTS.
I. The date of filing of the paper as shown on the instrument and on the general docket control over the vague and uncertain testimony of counsel and his son. The refusal of the trial court to dismiss the appeal as untimely was against the overwhelming weight of the evidence on the point. Erving's Hatcheries v. Garrott, 250 Miss. 701, 168 So.2d 52; J.R. Watkins Co. v. Guess, 196 Miss. 438, 17 So.2d 795; Mississippi State Highway Comm. v. Haines, 162 Miss. 216, 139 So. 168; Russell v. Mississippi Central R. Co., 239 Miss. 741, 125 So.2d 283; Williams v. Scott, 251 Miss. 533, 170 So.2d 621; Sec. 2766, Code 1942; 32A C.J.S., Evidence, Sec. 865 p. 232.
Appellant, Mississippi State Highway Commission, filed this eminent domain proceeding against appellees, John Byrd Haines and wife, seeking to condemn a right of way for the limited-access Natchez Trace Parkway through the farm owned by the Haines. An eminent domain court found defendants' damages at $17,500. The commission appealed to the circuit court, where in a de novo hearing the jury awarded $16,000.
The first question, one of jurisdiction, is raised on the cross-appeal of the Haines, Mississippi Code Annotated section 2766 (1956) provides that an appeal from a special court of eminent domain to the circuit court must be taken "within twenty days after the rendition of the verdict. . . ." Cross-appellants contend that the commission did not take its appeal to the circuit court within the statutory period. The circuit court overruled their motion to dismiss the appeal. We cannot say that it was manifestly wrong in interpreting the testimony of appellant's attorney and his son and concluding that the notice of appeal was timely filed with the circuit clerk.
Appellees owned 147.03 acres of land, approximately five miles east of the Town of Tishomingo, in Tishomingo County. They owned this land for about twenty-one years, and in the past have farmed it themselves, but at the time of trial did not live on it, renting it to others. This farm land is in a rectangular shape, running east and west. On the west boundary is Bear Creek.
The right of way enters the tract of defendants just west of the center of his north line, and travels in a southwesterly direction to a point near the west side of the tract on its south boundary. The commission is taking 26.03 acres for the Natchez Trace Parkway. Twenty-four acres, upon which no improvements are situated, will remain on the west side of the right of way, bordered on the west by Bear Creek. Approximately 97 acres remain on the east side of the right of way. This is the main portion of the farm. There will be taken, within the right of way, a four-room frame tenant house with brick siding, and a 40-foot tiled well, a barn and a stock pond, together with a stock well. Within the right of way are 17.03 acres of crop land, and 9 acres of pasture land.
The 24-acre tract on the west contains 10 acres of pasture land, two acres of timberland, and 12 acres of crop land. This west tract will not be available and accessible until a proposed access road is constructed by the United States National Park Service on the right of way of the Natchez Trace and the Park Service has turned it over to Tishomingo County for maintenance. The county has agreed to accept this access road, about one-half mile in length, after it has been constructed, and thereafter to maintain it as a county road. When these things are done, access from the east to west tract will be by an existing county road over the 97-acre tract in a southerly direction to its intersection with the proposed county road within the right of way, which will lead in a northerly direction to defendants' 24-acre tract on the west side of the right of way. The total distance required to be traveled from one tract to the other, at that time, will be three-fourths of a mile.
The federal cotton allotment on the farm is 42.02 acres. There are three patches of cotton, one 25 acres and two of 10 acres each. R.H. Burress, a real estate agent, testifying for the commission, gave a value before the taking of $18,000; after the taking, $10,225, with damages of $7,775. Haines, the owner, estimated a before taking value of $43,800; after, $25,985, with resulting damages of $17,815. H.L. Williams, an experienced real estate and business man, gave a before taking value of $52,529.50, and after, $35,094.70, with resulting damages of $17,434.80. These witnesses stated there were no comparable sales in the vicinity, although Williams said that he knew of some comparable property in other counties.
(Hn 1) We have carefully reviewed the evidence, and related the pertinent facts to other similar eminent domain cases decided in recent years. Two juries passed on the damages, and we cannot say that the award of $16,000 was so grossly excessive as to evince bias, passion and prejudice. Although generous, the award made here was consistent with and supported by the evidence. Cf. Miss. State Highway Comm'n v. Valentine, 239 Miss. 890, 124 So.2d 690 (1960); McDuffie v. Miss. State Highway Comm'n, 239 Miss. 518, 124 So.2d 284 (1960); Miss. State Highway Comm'n v. Pepper, 250 Miss. 755, 168 So.2d 307 (Miss. 1964).
Affirmed.
Lee, C.J., and Rodgers, Patterson and Inzer, JJ., concur.