Opinion
No. 43338.
February 8, 1965.
1. Eminent domain — award excessive — remittitur.
Evidence in highway condemnation case did not support award of $75,000 for taking of 47 plus acres of 1,328-acre farm which had been purchased for $128,600 two years before, and judgment would be reversed unless owners should accept remittitur of $25,000.
2. Eminent domain — land values — evidence of price paid for condemned land at prior sale, admissible.
Evidence of price paid for condemned land in prior sale, especially evidence as to price paid by condemnee, is generally admissible, at least where sale is voluntarily and not too remote in point of time.
3. Eminent domain — land values — condemnee's appraisals not supported by facts as to market value.
Fact that condemnees did not submit evidence of any sale of reasonably comparable property in vicinity indicated that their appraisals were not supported by facts as to market value.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Pearl River County; SEBE DALE, J.
Tate Thigpen, G.B. Keaton, Picayune, for appellant.
I. There was no credible evidence to support the verdict of the jury; the verdict is against the great weight of the evidence, and not supported by a preponderance of the testimony, and the verdict of the jury is so excessive as to denote bias and prejudice, and so as to shock the enlightened conscience. McDuffie v. Mississippi State Highway Comm., 239 Miss. 518, 124 So.2d 284; Mississippi State Highway Comm. v. Daniels, 235 Miss. 185, 108 So.2d 854; Mississippi State Highway Comm. v. Davis, 249 Miss. 643, 163 So.2d 729; Mississippi State Highway Comm. v. Ellzey, 237 Miss. 345, 114 So.2d 679; Mississippi State Highway Comm. v. Herring, 241 Miss. 729, 133 So.2d 279; Mississippi State Highway Comm. v. Hudgins, 182 Miss. 518, 181 So. 719; Mississippi State Highway Comm. v. Pepper, 250 Miss. 347, 164 So.2d 911; Mississippi State Highway Comm. v. Peterson, 238 Miss. 63, 117 So.2d 452; Mississippi State Highway Comm. v. Peterson, 242 Miss. 202, 134 So.2d 743; Mississippi State Highway Comm. v. Pittman, 238 Miss. 402, 117 So.2d 197; Mississippi State Highway Comm. v. Randle, 180 Miss. 834, 178 So. 486; Mississippi State Highway Comm. v. Roche, 249 Miss. 792, 163 So.2d 874; Mississippi State Highway Comm. v. Slade, 241 Miss. 721, 133 So.2d 282; Mississippi State Highway Comm. v. Stubbs, 239 Miss. 499, 124 So.2d 281; Mississippi State Highway Comm. v. Taylor, 237 Miss. 847, 116 So.2d 757; Mississippi State Highway Comm. v. Tisdale, 241 Miss. 16, 128 So.2d 745; Mississippi State Highway Comm. v. Valentine, 239 Miss. 890, 124 So.2d 690; Strickland v. Mississippi State Highway Comm., 240 Miss. 7, 125 So.2d 696; Womble v. Mississippi State Highway Comm., 239 Miss. 372, 123 So.2d 235; Orgel, Valuation under Eminent Domain, Sec. 134 p. 577.
II. The lower court erred in overruling appellant's motion for mistrial. Mississippi State Highway Comm. v. Herring, supra; Mississippi State Highway Comm. v. Slade, supra; Mississippi State Highway Comm. v. Valentine, supra; Nichols, Eminent Domain, Secs. 21.31, 21.31(3) pp. 439, 461; Orgel, Valuation under Eminent Domain, Sec. 134 p. 577.
III. The lower court erred in refusing to strike or exclude the value testimony of appellees' witnesses, O.A. Davis and C.C. Barefoot.
Williams Williams, Poplarville, for appellee.
I. The case was decided by the jury on testimony that was either undisputed in favor of appellees or on sharply conflicting testimony, and the verdict of the jury, being supported by ample evidence, should, therefore, not be disturbed by this Court. Aetna Insurance Co. v. Lester, 170 Miss. 353, 154 So. 706; Burrill v. Rau, 153 Miss. 437, 121 So. 118; Caldwell v. Smith, 200 Miss. 711, 28 So.2d 657; C. R. Stores, Inc. v. Scarborough, 189 Miss. 872, 196 So. 650; Dement v. Summer, 175 Miss. 290, 165 So. 791; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Gee v. Rimmer, 188 Miss. 460, 195 So. 342; Hartford Fire Insurance Co. v. Williams, 165 Miss. 233, 145 So. 94; Hemming v. Rawlings, 144 Miss. 643, 110 So. 118; Johnson v. Richardson, 234 Miss. 849, 108 So.2d 194; Lynch v. American Slicing Machine Co., 202 Miss. 515, 32 So.2d 546; Mississippi Central R. Co. v. Roberts, 173 Miss. 487, 160 So. 604; Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Mississippi State Highway Comm. v. Baker, 241 Miss. 738, 133 So.2d 277; Mississippi State Highway Comm. v. Brooks, 239 Miss. 308, 123 So.2d 428; Mississippi State Highway Comm. v. Davis, 249 Miss. 643, 163 So.2d 729; Mississippi State Highway Comm. v. Gabbert, 238 Miss. 687, 119 So.2d 774; Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Comm. v. Mitchell, 247 Miss. 536, 154 So.2d 280; Mississippi State Highway Comm. v. Pepper, 250 Miss. 347, 168 So.2d 307; Mississippi State Highway Comm. v. Strong, 240 Miss. 756, 129 So.2d 349; National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724; New Orleans G.N.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Overing v. Skrmetta, 218 Miss. 648, 67 So.2d 606; Rucks v. Great Southern Tel. Tel. Co. (Miss.), 23 So. 454; Saenger Theatre Corp. v. Herndon, 180 Miss. 791, 178 So. 86; Salter v. Jennings Furniture Co., 144 Miss. 194, 109 So. 704; Sims v. McIntyre, 8 Sm. M. (16 Miss.) 324; Triangle Amusement Co. v. Benigno (Miss.), 35 So.2d 454; Universal Truck Loading Co. v. Taylor, 178 Miss. 143, 172 So. 756; Warren County v. Harris, 211 Miss. 80, 50 So.2d 918; Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552; Sec. 31, Constitution 1890; 18 Am. Jur., Eminent Domain, Secs. 355, 361 pp. 999, 1004.
II. Answer to appellant's brief. Mississippi State Highway Comm. v. Burwell, 206 Miss. 490, 39 So.2d 497, 40 So.2d 263; Mississippi State Highway Comm. v. Dodson, 207 Miss. 229, 42 So.2d 179; Mississippi State Highway Comm. v. Hillman, supra; Warren County v. Harris, supra.
III. Answer to appellant's Point Two that the trial court erred in overruling its motion for a mistrial. Brush v. Laurendine, 168 Miss. 7, 150 So. 818; Copiah Dairies v. Addkison, 247 Miss. 327, 153 So.2d 689; Crosby Lumber Manufacturing Co. v. Durham, 181 Miss. 559, 179 So. 285; Dabbs v. Richardson, 137 Miss. 789, 102 So. 769; Ingalls Shipbuilding Corp. v. Trehern, 155 F.2d 202; Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 350; Mississippi Ice Utilities Co. v. Pierce, 161 Miss. 252, 134 So. 164; Mississippi State Highway Comm. v. Daniels, 235 Miss. 185, 108 So.2d 854; Mississippi State Highway Comm. v. Tisdale, 241 Miss. 16, 128 So.2d 745; Natchez Times Publishing Co. v. Dunigan, 221 Miss. 320, 72 So.2d 681; Prewitt v. State, 156 Miss. 731, 126 So. 824; Welch v. Morgan, 225 Miss. 154, 82 So.2d 820.
IV. Answer to appellant's Point Three. Mississippi State Highway Comm. v. Davis, supra; Mississippi State Highway Comm. v. Mitchell, supra.
The Mississippi State Highway Commission, appellant, filed this eminent domain proceeding against Hillcrest Farm, Inc. (called Hillcrest) and others holding encumbrances, seeking a right-of-way for the limited-access interstate Highway No. 59, through the farm owned by Hillcrest. A Special Court of Eminent Domain awarded to Hillcrest damages of $40,000. The commission appealed to the Circuit Court of Pearl River County, where a jury verdict gave damages of $75,000. The commission contends that there was no evidence to support this verdict of the jury, and it is against the overwhelming weight of the evidence, and so excessive as to denote bias, passion and prejudice by the jury.
I.
Hillcrest Farm was developed originally several decades ago as a "show place." In May 1960 Dr. V.L. Stanfield and four associates purchased it in the name of Hillcrest Farm, Inc. from Alexander, for a consideration of $128,600. In October 1961 the United States Government announced that the National Aeronautics and Space Administration, Mississippi Test Facility, would acquire a buffer zone and begin work on that project. It is about eight miles from this property, bordering on the south boundary line of the corporate limits of the City of Picayune. Although the testimony is indefinite as to the extent of the effect of this project upon the market price of this and other properties in Pearl River County, it reflects the project did cause some increase in the market price of land in this vicinity. See Mississippi State Highway Comm. v. Pepper, 250 Miss. 755, 168 So.2d 307, 308 (Miss. 1964).
The farm consists of 1,328 acres of land in Pearl River County, about 4 miles east of the Village of Carriere, and about 10 road miles northeast of the City of Picayune, in the southern portion of the county. It does not front on a paved road, but a county gravel road crosses it several hundred feet north of its southern boundary, from east to west. The highway right-of-way takes a total of 47.34 acres of land. This includes 4.47 acres taken for relocation of a small segment of the county road, to permit the building of an overpass for the road over the interstate highway. The remaining acreage of 42.87 acres is taken for the limited-access highway. In the northeast portion this includes about 5 acres for a roadside park. The highway crosses this farm running from northeast to southwest.
After the taking of the right-of-way, 305 acres are left on the east side of the highway, and 975 acres remain on the west. The farm consists of improved pastureland, tung orchards, and second-growth timber. At the time of taking appellees used the property for raising cattle, and growing tung and timber. The right-of-way takes 35.35 acres in improved pasture, and 12 acres of second-growth but thick young timber. It also takes two tenant houses, one with 832 square feet, and the other with 616 square feet (plus porches). These tenant houses were in a bad state of repair. As a result of the taking, appellees will have to construct 15,443.9 feet of net wire and barbed wire fences along the highway and county road. Also the commission has condemned in effect 4,699.5 feet of appellees' frontage along the gravel county road, which is several miles from Carriere and Picayune. There is no present residential demand for it.
Other than the two tenant houses taken, all buildings and other improvements are located on the west side of the highway, with the 975 acres. The entire property includes 14 miles of fencing and cross-fencing; 200 to 250 acres of tung trees and row crops; 350 acres of improved pasture, with bahia and white dutch clover; 700 to 728 acres of second-growth timberland, mostly pine timber of pole and saw log size, with some hardwood; and a pond or lake of 50 to 60 acres on the west side of the highway. Also on the west side of the highway, north of the county road, is a wood-framed dwelling house of 3,240 square feet, apparently in a good state of repair, with four bedrooms, two baths, electricity and telephone. The corporate owners do not live in this residence, which apparently is used as a manager's home. Since the partly relocated county road will cross Highway 59 by an overpass, the road has to be built upon a fill ranging from 16 to 21 feet in height. This remaining house is 150 feet north of the road, and 225 feet west of the western boundary of the right-of-way of Highway 59. These facts no doubt result in damage to it.
Also in the tract west of the highway are two large concrete barns, well constructed, and in a reasonably good state of repair, although given comparatively little use in recent years. One of them has 9,000 square feet, asbestos shingles, and a concrete floor. Another large barn of 5,088 feet (sometimes divided into 4 smaller units) is similarly constructed. There are two concrete silos, a deep-water well, and a creek traverses the property under the highway.
On the east side of the highway are 305 acres of improved bahia grass pastureland, which will be cut off from the west side, so far as crossing over the farm itself is concerned. This apparently is the largest pasture area on the farm. Access to the 305-acre tract on the east can be had by crossing the overpass of the county road. The highway right-of-way across the property varies in width from 300 to 663 feet at various points. On the north end, some distance from the residence, a 5-acre tract is being taken for use as a park and rest stop for motorists. Appellees say that this park will have an adverse effect upon their remaining property; that the starting and stopping of traffic, noise and diesel fumes will damage the residence.
For the drainage of water under the newly constructed roads, there will be four 18-inch pipes, one 24-inch pipe, one 30-inch pipe, one 8x6-foot box culvert, one 9x4-foot box culvert, and four 40-foot stand bridges 6 feet high. Appellees' evidence indicates that the flow of water through these conduits will cause washing and filling of mud and silt on their property opposite these drainage points.
All of the witnesses, for both petitioner and appellees, testified in general terms that they examined comparable properties, but on cross-examination, appellees' five witnesses on value gave no comparable sales of property in this vicinity aggregating anything like the prices they applied to this land.
Fifty acres in the southeast part, below the new highway and the county road, will be deprived of direct access to the water supply previously utilized in the southwest tract. In one sense, after the taking the farm will be divided into four parts, traversed by the county road and the new highway. Before the taking, it was divided into two tracts, separated by the county road.
The witnesses for petitioner and for defendants, with the damages estimated by them, may be summarized as follows:
Percentage Before After Reduction Name Taking Value Taking Value Damages After Taking For Petitioner
J.W. Morgan _______ $140,500.00 $123,000.00 $ 17,500.00 14.05 C.B. Moore ________ 150,620.00 132,153.00 18,467.00 12.26 F.L. Arbogast _____ 158,375.00 146,525.00 11,850.00 7.48 Carle Cooper ______ 151,000.00 128,700.00 22,300.00 14.768 For Defendants V.L. Stanfield ____ 331,700.00 213,750.00 117,950.00 35.559 O.A. Davis ________ 354,300.00 228,420.00 125,880.00 35.52 C.C. Barefoot _____ 327,755.00 220,300.00 107,455.00 32.785 Ferris E. Tate ____ 386,496.60 265,297.50 121,199.10 31.35 E.F. Loe __________ 316,269.00 212,577.00 103,692.00 32.786
II.
(Hn 1) After thorough consideration of the record, we conclude that the jury's verdict for damages of $75,000 is grossly excessive, and wholly unsupported by the evidence. Many factors support that conclusion, some of which we will summarize.
In May 1960 Hillcrest purchased this entire farm for $128,600. At the time of the taking on June 28, 1962, approximately two years later, its value before the taking, according to Tate, one of appellees' witnesses, had tripled to $386,496.60. According to their other four witnesses, the property was around two and a half times the price which Hillcrest paid two years earlier.
(Hn 2) Evidence of the price paid for condemned land in a sale prior to the proceeding in which the condemnation is sought, and especially evidence as to the purchase price paid by the condemnee, is admissible generally, at least where the sale is voluntary and is not too remote in point of time. State Highway Comm. v. Ladner, 243 Miss. 176, 181-2, 137 So.2d 784, 786-7 (1962); State Highway Comm. v. Taylor, 237 Miss. 847, 116 So.2d 757 (1960). The price paid for the farm by Hillcrest within two years of the condemnation is of considerable probative value on the before and after taking value of this land, and damages. If appellees purchased it at an unusual bargain or low price, below market value, or if other circumstances affected what they paid for it, that could have been shown, but was not. If appellees made substantial, expensive improvements in the two-year interim, that could be shown, but was not. The evidence indicates an increase of an indeterminate amount in market value of property in this vicinity as a result of installation of the NASA facility beginning in October 1961. Yet considering all of these factors, it is incredible on this record that the property would have increased in value within two years from what was paid for it, $128,600, to anything near the valuations placed upon it by Dr. Stanfield or appellees' other witnesses, $316,000 and up.
Appellant's witnesses placed the damages to the property in the range of $11,850 to $22,300. There is a tremendous gap between the damages estimated by these witnesses and by those for appellees, who placed them within a range of $103,692 to $125,880. Appellees' witnesses figured damages at six to seven times the estimates of witnesses for appellant. In McDuffie v. State Highway Comm., 239 Miss. 518, 522, 124 So.2d 284, 285 (1960), where the condemnee's valuations before taking were two and a half times those of the commission's witnesses, the Court said: "Such disparity in value could only have bias and prejudice for the jury in their duty of reaching a fair valuation. The disparity is shocking to the enlightened conscience."
Three and fifty-seven hundredths percent of the land is actually taken, plus two tenant houses, timber and pasture land. Yet the witnesses for appellees assessed the damages, for the taking of the land and to that remaining, at 31.35% to 35.559% of their before taking values. The land contained no physical improvements, other than improved pastureland, two tenant houses, and timber. The 305 acres on the east side, accessible indirectly by a county road, contains no improvements other than pasture. Dr. Stanfield claimed damages of $117,950. Two of his witnesses, Davis and Tate, asserted the damages were in excess of that figure.
As in State Highway Commission v. Pepper, 250 Miss. 347, 164 So.2d 911, 926 (Miss. 1964), these observations are pertinent in the instant case:
It is astonishing to note the vast gulfs of difference between the respective appraisals of appellant's and appellee's witnesses. It is incomprehensible that reasonable men, who are unbiased and qualified to make impartial appraisals can objectively be as far apart in their deliberate conclusions as is reflected in this schedule. There is a strange uniformity of irreconcilable disparity in values evidenced by the estimates made by these two groups of appraisers. The great difference between the values and damages estimated by the appellee and his witnesses alone is persuasive that the testimony relating to the appraisals is lacking in probative value to justify the verdict. . . .(Hn 3) Moreover, appellees' witnesses did not submit any sales of reasonably comparable property in the vicinity in support of their extremely high valuations. The fact that they had none indicates that their appraisals were not supported by the facts as to market value. State Highway Comm. v. Roche, 249 Miss. 792, 163 So.2d 874; State Highway Comm. v. Davis, 249 Miss. 643, 163 So.2d 729.
That which was said in State Highway Commission v. Valentine, 239 Miss. 890, 895-6, 124 So.2d 690, 693 (1960), is applicable here:
It is the duty of this Court to determine whether there is any reasonable, believable evidence which will support the verdict in this case. A proper exercise of the judicial function does not require us to believe the incredible. Appellees' witnesses are competent to testify, but because of the extreme, unreasonable, and unsupported valuations which they placed on the land, as analyzed above, their testimony has little probative value.
See also State Highway Comm. v. Taylor, 237 Miss. 847, 850-1, 116 So.2d 757, 759 (1960).
In summary, we think the award of $75,000 damages for this taking is so grossly excessive as to evince bias, passion and prejudice by the jury. We find no other reversible errors in the record, but in view of this controlling determination, the judgment of the circuit court is reversed, and the case is remanded for a new trial on damages, unless within ten days from the date the judgment of this Court becomes final appellees accept a remittitur of $25,000, thus reducing the award to the aggregate sum of $50,000. In the event appellees accept such remittitur, the judgment will be affirmed as modified. Otherwise, this case is reversed and remanded.
Reversed and remanded, unless appellees accept specified remittitur, and in that event affirmed with remittitur.
Lee, C.J., and Rodgers, Patterson and Inzer, JJ., concur.