Opinion
No. 43191.
November 9, 1964.
1. Eminent domain — award excessive.
Award of $173,000 for condemnation of sixty-eight acres of 1,900-acre tract used for pasture, timber growing, orchard and farming, leaving one hundred eighty acres with access thereto prevented by proposed highway, was grossly excessive; and any verdict in excess of $86,000 would not be allowed to stand.
Headnote as revised by Jones, J.
APPEAL from the Circuit Court of Pearl River County; SEBE DALE, J.
Joe T. Patterson, Attorney General, Jackson; 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. 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, 895; Mississippi State Highway Comm. v. Hudgins, 182 Miss. 518, 181 So. 719; Mississippi State Highway Comm. v. McDuffie, 239 Miss. 518, 124 So.2d 284; 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. 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, 125 So.2d 281; Mississippi State Highway Comm. v. Taylor, 237 Miss. 847, 116 So.2d 757; 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, Valuations Under Eminent Domain, Secs. 134, 142.
II. The lower court erred in refusing to strike or exclude the value testimony of appellee witnesses Ferris E. Tate, C.C. Barefoot and O.A. Davis. Mississippi State Highway Comm. v. Davis, supra; Mississippi State Highway Comm. v. Herring, supra; Mississippi State Highway Comm. v. Pepper, supra; Mississippi State Highway Comm. v. Roche, supra; Mississippi State Highway Comm. v. Slade, supra; Mississippi State Highway Comm. v. Valentine, supra; Orgel, Valuations Under Eminent Domain, Sec. 134.
Granville Williams, Picayune; Williams Williams, Poplarville, for appellees.
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 v. Scarborough, 189 Miss. 872, 196 So. 650; Faulkner v. Middleton, 186 Miss. 356, 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 423; 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. Ladner, 243 Miss. 176, 137 So.2d 784; Mississippi State Highway Comm. v. Mitchell, 247 Miss. 536, 154 So.2d 284; Mississippi State Highway Comm. v. Rogers, 242 Miss. 439, 136 So.2d 216; Mississippi State Highway Comm. v. Stout, 242 Miss. 208, 134 So.2d 467; Mississippi State Highway Comm. v. Strong, 240 Miss. 756, 129 So.2d 349; Mississippi State Highway Comm. v. Turnipseed, 236 Miss. 764, 111 So.2d 925; National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724, 95 A.L.R. 1500; New Orleans G.N.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Nicholson v. Board of Mississippi Levee Commissioners, 203 Miss. 71, 33 So.2d 606; Overing v. Skrmetta, 218 Miss. 648, 67 So.2d 606; Bucks 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; 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. 522.
Appellees, J.E. Mitchell and wife, owned 1900 acres of land, a small portion in Section 35, Township 5 South, Range 17 West; practically all of Section 36, Township 5 South, Range 17 West; all of Section 31, Township 5 South, Range 16 West, less the E 1/2 of E 1/2 of E 1/2; and all of Section 30, Township 5 South, Range 16 West, in Pearl River County. Appellant, Mississippi State Highway Commission, filed eminent domain proceedings for condemnation of a right of way for highway purposes. The right of way entered on the south into the lands in Section 31 and extended in a northeasterly direction to a point a short distance south of the northeast corner of NE 1/4 of SE 1/4 of Section 30. The point of entry on the south was approximately 200 feet east of the southwest corner of SE 1/4 of Section 31. The points of entry and exit above mentioned are with reference to the west line of the right of way. It was of various widths but contained 68 acres and left on the east side 180 acres with access thereto prevented by the proposed highway. The jury returned a verdict for $173,000, which we consider grossly excessive, and therefore reverse the case for another trial unless a remittitur is entered.
Appellees' property was highly developed. It was used for pasture, timber growing, tung orchards and farming. The western boundardy was U.S. Highway 11, on which the lands of appellee bordered for one mile. There was a public road along the south boundary which was severed by the new highway. There were five farm roads which were also severed. The highway was to be a nonaccess road.
There was a creek through the approximate center of the lands west of the new highway and there were a number of ponds on the property — two on the 180 acres east of the highway. With the construction of the new highway, entry from the west onto the 180 acres required a trip of eleven miles, or twenty-two miles round trip. The lands were one mile north of the corporate limits of the City of Picayune. The buildings and improvements were all situated on the NW 1/4 of the SW 1/4 of Section 36, fronting U.S. Highway 11. The right of way condemned was approximately an average of one and one-half miles east of the residence, barnes, etc. The west end of the property was adjacent to the Country Club on the south.
In the right of way itself were twenty-two acres in tung trees, sixteen acres of improved pasture, and 29.94 acres in timber or trees. As to the 180 acres on the east side, 95 acres were improved pasture, 75 acres in tung trees, and 11 acres in timber.
On the trial, as has been customary for some time in this type of case, the testimony of witnesses for the State and the landowner varied tremendously. The testimony as to values and damages was as follows:
For the State:
Name Before Value After Value Damages
J.W. Morgan $ 415,000.00 $ 385,500.00 $ 29,500.00 Charles B. Moore 408,500.00 378,900.00 29,600.00 F.L. Arbogast 593,225.00 560,360.00 32,865.00 Carle Cooper 600,000.00 563,700.00 36,300.00
For the appellees:
J.E. Mitchell $ 1,133,000.00 $ 960,375.00 $ 172,625.00 Ferris E. Tate 812,900.00 656,430.00 156,470.00 C.C. Barefoot 1,043,836.00 934,316.00 109,520.00 O.A. Davis 1,325,500.00 1,224,550.00 100,950.00 E.F. Loe 765,150.00 657,804.00 107,346.00
It will be observed that the highest estimate of damages was by one of the appellees and that the jury's verdict exceeded his estimate.
Mr. Mitchell was a very prominent and influential man. He was vice president and a member of the loan committee of the First National Bank at Picayune, and a trustee of the Crosby Memorial Hospital at Picayune, and also held other positions of honor and prestige.
In view of the vast discrepancies in the evidence, we are left in a state of confusion and wonder. It is said that the jury viewed the property and fixed the damages. Another jury in the eminent domain court viewed the property and in their judgment the damages amounted to $75,000, a difference of $98,000 in the two juries. In this chaotic condition, we are forced to consider in detail what this record shows. (Hn 1) This Court has carefully done so, and is convinced that, on this record, a verdict in excess of $86,000 is grossly excessive — so much so as to show bias and prejudice on the part of the jury and to require a reversal.
However, if within fifteen days from the time this judgment becomes final, appellees will accept and enter a remittitur of $87,000, thus reducing the award to $86,000, the judgment will be affirmed as modified. Otherwise the case is reversed and remanded for a new trial.
Reversed and remanded unless remittitur is entered.
Lee, C.J., and McElroy, Rodgers and Brady, JJ., concur.