Opinion
No. 43607.
October 18, 1965.
1. Eminent domain — evidence — land values — testimony of condemnee's expert unreasonable.
Testimony of real estate broker who fixed damages at $28,835 for condemnation of 10.58 acres in trees and improved pasture with result that uncondemned 1.1 acre was largely destroyed insofar as having value to other uncondemned land was unreasonable, and should have been excluded as requested by condemnor.
2. Eminent domain — damages — award grossly excessive — remittitur.
Considering all the evidence, some of which was excludable as unreasonable testimony by real estate broker that consequential damage was $28,835, and giving due respect to findings of jury that damages in amount of $9,920 resulted from taking of 10.58-acre right-of-way in southern part of 79.28-acre tract with result that 1.1 acre was separated from the rest and left with inconvenient and roundabout access, any sum in excess of $7,000 was so grossly excessive as to shock the conscience.
Headnotes as approved by Lee, C.J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, J.
Boyd, Holifield Harper, Laurel, for appellant.
I. The Court erred in refusing to exclude the testimony of the witness, James F. Parish. Mississippi State Highway Comm. v. Ellzey, 237 Miss. 345, 114 So.2d 769, 240 Miss. 689, 128 So.2d 561; Mississippi State Highway Comm. v. Taylor, 237 Miss. 847, 116 So.2d 757.
II. There was no credible evidence to support the verdict of the jury. City of Jackson v. Landrum, 217 Miss. 10, 63 So.2d 391; Mississippi State Highway Comm. v. Williamson, 181 Miss. 399, 179 So. 736.
III. The verdict of the jury is shocking to the enlightened conscience and denotes bias, prejudice and passion on the part of the jury, and it is not supported by the great weight of the evidence. Mississippi State Highway Comm. v. Pittman, 238 Miss. 402, 117 So.2d 197; Mississippi State Highway Comm. v. Rogers, 236 Miss. 800, 112 So.2d 250; Mississippi State Highway Comm. v. Valentine, 239 Miss. 890, 124 So.2d 690.
IV. The Court erred in overruling appellant's motion for a new trial.
Lampkin Butts, Laurel, for appellee.
I. The verdict of the jury is in nowise excessive, or shocking to the conscience. Mississippi State Highway Comm. v. Herring, 241 Miss. 729, 133 So.2d 279; Mississippi State Highway Comm. v. Ramsey, 252 Miss. 365, 173 So.2d 421; Sec. 2760, Code 1942.
This proceeding was instituted by the Mississippi State Highway Commission against T.L. Ramsey and others for the purpose of condemning certain property of the defendants for necessary use in the construction of the right-of-way of U.S. Interstate Highway No. 59.
The Ramseys were the owners of 79.28 acres of land, situated 4.5 miles north of the corporate limits of the City of Laurel. The property was fully described in the petition. It fronted on old Highway No. 11. The right-of-way takes 10.58 acres in the southern part of the property, leaving 1.1 acre east of the right-of-way. Access to this small acreage is inconvenient and roundabout. Such buildings as remained on this property were old and somewhat deteriorated. Besides, none of them were taken.
The substantial damages consisted of the land taken, part of which was in growing pine trees with several older pecan trees and a number of younger ones. The balance thereof was in improved pasture land. The right-of-way effectively destroyed a fish pond which covered approximately 3 acres. The value of the 1.1 acre, cut off in the southeastern corner, is largely destroyed so far as value to the tract is concerned. There was also evidence to the effect that the defendants and Randolph E. Ramsey were operating their adjacent lands as one unit, and that some damage will be caused on that account.
Here, as in many cases, there was great disparity in the values of the property, as estimated by the witnesses. On the one hand, J.W. Morgan, for the Commission, fixed the before taking value at $15,500, and the after taking value at $11,800, resulting in damages of $3,700. On the other hand, T.L. Ramsey, for himself, put these values at $95,800 and $59,800, respectively, causing damages of $35,000. J.F. Parrish, a real estate broker, fixed these values at $84,907 and $56,072, respectively, with a consequent damage of $28,835.
These values are irreconcilable. The jury viewed the property and they, apparently, did not agree with the estimates of either side. Their verdict was for damage in the sum of $9,920.
On this appeal, the Commission contends, first, that the evidence of J.F. Parrish should have been excluded, in accordance with their motion; and second, that the verdict is shocking to the conscience and evinces passion and prejudice.
(Hn 1) The evidence of the witness Parrish is perhaps as unreasonable in this case as his evidence was in Mississippi State Highway Commission v. Ratcliffe (Miss.) 171 So.2d 356 (1965) where the court denominated it as "completely unbelievable and should not be regarded as evidence", and that the motion to exclude should have been sustained. In that case, because of so many errors, there was no suggestion of a remittitur. Such an error in this instance would not require an unqualified reversal.
(Hn 2) On the question of the amount of the verdict, the Court has given due consideration to all of the evidence, as shown by the record. After thorough consideration of the entire evidence, together with due respect for the findings of the jury, the Court is driven to the conclusion that, under all of the facts and circumstances, shown in this instance, any sum in excess of $7,000 is so grossly excessive as to shock the conscience and evince passion and prejudice.
It is the opinion of the Court therefore that, unless the appellees will file, within 20 days, a remittitur in the sum of $2,920 so as to reduce the judgment to the sum of $7,000, the judgment will be reversed and the cause remanded for a new trial on the question of damages alone. If such remittitur is filed, the judgment will be affirmed for $7,000.
Affirmed conditionally on remittitur; otherwise reversed and remanded for a new trial.
Rodgers, Brady, Patterson, and Inzer, JJ., concur.