Opinion
No. 33055.
March 21, 1938.
1. EMINENT DOMAIN.
In condemnation proceedings, jury's verdict must stand unless it is claimed that verdict is so excessive that it was brought about by passion or prejudice.
2. EMINENT DOMAIN.
In condemnation proceedings, jury should award damages on basis of fair market value of land before taking and fair market value of what was left after taking.
3. EMINENT DOMAIN.
$9,000 to plantation owners for 101 acres of land condemned for federal highway and parkway project was not excessive, where strip condemned was part of most productive land on plantation and all but three acres of it was in cultivation, strip cut plantation almost in half, parkway could not be crossed except at public crossings unless permission to do so was granted by the National Park Service, and there was evidence that before condemnation entire plantation was worth from $25,000 to $35,000 and after condemnation what was left was worth from $10,000 to $15,000 less (Laws 1935, Ex. Sess., chapters 45, 52; Laws 1936, chapter 201).
4. EMINENT DOMAIN.
In highway condemnation proceedings, refusal of highway commission's requested instruction that there could be no recovery on ground that landowners could not cross right of way from one side to another was not error, where evidence showed that proposed highway and parkway could not be crossed except at public highway crossings unless permission to do so was granted by National Park Service, and that such permits were not granted for more than a year at a time.
APPEAL from the circuit court of Madison county. HON. JULIAN P. ALEXANDER, Judge.
Ray Spivey, of Canton, for appellant.
The evidence in this case is insufficient to support a verdict in the sum of $9000 because: (1) the verdict is based solely on the opinions of the witnesses as to values and the amount of damages, and (a) the opinions of the witnesses, both as to values and damages are not shown to have been founded upon the knowledge and experiences of the witnesses, but (b) are in irreconcilable conflict with the facts and experiences upon which such opinions are attempted to be founded; and (2) the testimony upon which it is sought to sustain the verdict is not within the acceptable range of reasonable probability; and (3) it clearly appears from the testimony that many improper elements of damages were used by the witnesses as the bases of their opinions.
Metropolitan R. Co. v. Moore, 7 Sup. Ct. 1334, 121 U.S. 558, 30 L.Ed. 1022; Gunn v. Union R. Co., 62 A. 118, 27 R.I. 320, 2 L.R.A. (N.S.) 362; State Highway Com. v. Brown, 168 So. 277, 176 Miss. 23.
It has been repeatedly held that opinions as to values; damages, and the like, have no probative value, unless it be shown that such opinions are based upon the experience and knowledge of the witness, and that where such opinions are in conflict with the stated facts and experiences upon which they are founded, the opinions must yield and the facts control. It is further true that whether evidence is within the acceptable range of reasonable probability is one of the tests of its sufficiency in civil suits.
Universal Truck Loading Co. v. Taylor, 164 So. 3, 174 Miss. 353.
Pleadings must be strictly construed against the pleader. Merchants Manufacturers Bank v. Busby, 160 So. 577, 172 Miss. 394; Universal Film Exchanges v. West, 141 So. 293; New York Ind. Co. v. Myers, 138 So. 344, 161 Miss. 784; Westbrook v. McCarty, 134 So. 193, 160 Miss. 455, and numerous other authorities. A contract is to be most strictly construed against the party who prepared it. Home Mut. Fire Ins. Co. v. Pittman, 71 So. 739; Love Pet. Co. v. Atlantic Oil Prod. Co., 152 So. 829, 169 Miss. 259. The same reasoning and the same logic which supports the two foregoing rules demands that evidence be construed most strongly against the party who offers it. Furthermore, the effect of inconsistent and contradictory allegations of facts in a pleading is for each allegation to neutralize or destroy the other.
Horne v. Higgins, 25 So. 489, 76 Miss. 813; I.C.R.R. Co. v. Abrams, 36 So. 542, 84 Miss. 456. If this rule is applied to the testimony of appellee's witnesses it will be found that each and every witness has, by his own admissions on cross examination, neutralized and destroyed his own testimony.
Tests to determine the sufficiency and the reasonableness of the evidence in support of the verdict in this case, and whether the testimony is based upon the knowledge and experience of the witnesses, may be applied from three sources: first, the testimony of the witnesses as to the value of the property and the amount of damages sustained; second, the testimony of the witnesses as to sales of other property in the vicinity of that here involved; third, comparisons between the assessed value of the property here involved and the amount of damages awarded, and between the assessed valuations of this property and that of other property recently sold as testified to by appellee's witnesses.
The entire farm here involved was assessed at $5.38 per acre and the improvements thereon were assessed at $700, making the total assessed valuation $5,250.
It has been held that the disproportion between the assessed valuation of property and the damages awarded for its expropriation is, alone, sufficient to warrant setting aside a verdict as excessive.
Y. M.V.R. Co. v. Adams, 31 So. 427.
Appellant attempted to show by its witness, J.W. Mead, what he had accepted for a right of way through his land, which he says is about the same type land as the Williamson land, but, on appellee's objection, was not permitted to do so. It also attempted to show by its witness, J.R. Fancher, what he had offered to recommend as a settlement for a like right of way through Federal Land Bank land in his charge which was proven to be practically the same type land as the Williamson land, but, on appellee's objection, was not permitted to do so. There is no inference that either of these witnesses were influenced in their settlements by prospective litigation or that they considered anything else than the actual values and damages sustained. It was, therefore, error to exclude this evidence.
State Highway v. Buchanan, 166 So. 537, 175 Miss. 157.
Watkins Eager, of Jackson, and H.T. Huber, of Canton, for appellees.
Where the testimony of different witnesses vary, it is not appellant's right to adopt that portion of each witness' testimony which is most favorable to appellant and demand that the court place that valuation on the entire piece of property. Where the testimony of the witnesses vary, it again becomes the duty of the jury to determine which of the witnesses' statements it will adopt.
64 C.J., 354 and 356; Natural Gas Engineering Corp. v. Bazor, 137 So. 788.
In condemnation proceedings, a wide latitude is allowed under the law as to values, and usually intelligent and experienced witnesses, having knowledge of property and the uses to which it may be put, and who can give their opinions as to valuations, may be selected. It is not necessary that there should be actual sales made in the particular locality where the condemnation is being had for values to be ascertained, but the judgment of people familiar with property and its value, and with the uses to which such property may be put, will fix such values.
State Highway Commission v. Buchanan, 175 Miss. 157, 165 So. 795.
It is widely recognized that appraisements of property by tax assessors for purposes of taxation are not reliable guides of market value, and consequently not admissible in condemnation proceedings.
Johnson v. Reichelderfer, 50 F.2d 336; Y. M.V.R.R. Co. v. Adams, 31 So. 427; St. L. S.F.R.R. Co. v. Rylee, 137 Miss. 759, 102 So. 838.
Under the law, where the land is condemned in fee simple, the condemnor takes all of the owner's interest in the property appropriated, and the right to the use and occupation of the condemned property is conclusive, and where such property is taken in fee simple, the condemnor has the exclusive right to the use and occupation of the premises as against the former owner.
20 C.J. 1221.
This court has on numerous occasions held that the award for the taking of property under eminent domain proceedings should include damages to cover the severance of the property owner's land into two or more separate pieces. This is especially true where, as in this case, it was shown that the farm prior to the taking was operated as a unit and that the two pieces which remained after the taking could not be so operated.
Balfour v. L.N.O. T.R. Co., 62 Miss. 508; Sullivan v. Board of Supervisors, 58 Miss. 790; Louisiana Highway Com. v. Guidry, 146 So. 1; State v. Hoblitt, 288 P. 181; Malvern Ouachita River R. Co. v. Smith, 26 S.W.2d 1107; Hall v. Willbarger County, 37 S.W.2d 1041.
This court held in Railroad Co. v. McBride, 38 Miss. 32, that it would not reverse a case of this type if it were merely doubtful as to whether the verdict was excessive but that it must clearly appear from the entire record that the verdict was excessive. The appellee earnestly submits that in this case, it clearly appears from the record that the jury was fully justified in returning a verdict for $9000.
The state highway commission brought this proceeding in a court of eminent domain in Madison county against the Williamsons, the appellees, to condemn a roadway and a parkway through their land in that county to constitute a part of what is known as the Natchez trace highway and parkway project. Damages were awarded the Williamsons in the sum of $7,794, for which judgment was entered, from which judgment the highway commission appealed to the circuit court, where there was a trial and a verdict and judgment in the sum of $9,000 in favor of the Williamsons, from which judgment the highway commission prosecutes this appeal.
The principal question in the case is whether the verdict was excessive, that being one of the grounds of the motion for a new trial, which was overruled. This court has held time and again (so often it is useless to refer to the cases) that neither the trial court nor this court can substitute its judgment for that of the jury in awarding damages; that the verdict of the jury must stand unless it is plain that the verdict is so excessive as to have been brought about by passion or prejudice — putting it differently, so excessive as to be shocking to the enlightened conscience.
The Williamsons own a plantation in Madison county consisting of 845 acres in almost a square body. The highway commission condemned for the purpose of the Natchez trace project a strip 800 feet wide and over a mile long, consisting of 101 acres, through this land; its course is somewhat northeasterly and southwesterly, the witnesses, however, refer to it as east and west. It will be referred to in this opinion in the same manner. Three hundred and sixty-seven acres were left north of the right of way and 377 acres south. The much larger part of the land in cultivation consisted of the 101 acres condemned and the land lying north thereof, however, there was some land in cultivation on the south, but the larger part of it was cutover pasture land. All the improvements were north of the right of way; they consisted of fifteen tenant houses, ceiled and screened, a large barn where all the stock used in the cultivation of the place was cared for, toolhouses, and several cotton houses. One tenant house and two cotton houses were situated in the right of way. The evidence was to the effect that their value was approximately $500. The pasturage for all the stock on the place was south of the right of way, and there was a runway from the north to the south through which they went to the pasture. In order to cultivate the land on the south it is necessary to pass over the right of way from the north to the south.
The condemnation proceeding was under the authority of chapters 45 and 52 of Extraordinary Session of 1935 and chapter 201, Laws of 1936. It is therein provided that the land condemned shall be conveyed by the highway commission to the United States, and that the entire space on either side of the highway shall constitute a parkway owned and controlled by the federal government. The evidence tended to show that this parkway could not be crossed by anyone without a permit from the National Park Service, a branch of the Department of Interior of the federal government.
The evidence showed without conflict that the 101 acres was a part of the most productive land on the place, and all of it was in cultivation except 3 acres. The evidence for the Williamsons was to the effect that before the condemnation proceeding the entire place was worth from twenty-five to thirty-five thousand dollars, and after cutting it into two farms by taking out of the center of it this strip of 101 acres over a mile long, what was left was worth from ten to fifteen thousand dollars less.
The criterion to guide the jury was the fair market value of the land before the taking and the fair market value of what was left after the taking. State Highway Commission v. Buchanan, 175 Miss. 157, 165 So. 795, 166 So. 537; Mississippi State Highway Department v. Blackburn, 172 Miss. 554, 160 So. 73; State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277; Jackson v. Monroe County, 124 Miss. 264, 86 So. 769; Schlicht v. Clark, 114 Miss. 354, 75 So. 130. We cannot say with any degree of satisfaction that the award by the jury was so excessive as to evince passion or prejudice. In the Buchanan Case the court said that in condemnation proceedings a wide latitude was allowed as to values.
The highway commission requested the court to instruct the jury that there could be no recovery as compensation for damages on the ground that the Williamsons could not cross the right of way from one side to the other. This instruction was refused. The commission was granted an instruction, however, that unless the Williamsons had proven by a preponderance of the evidence that they would not be permitted to cross the highway from their land on one side to that on the other side, there could be no award of damages on that account. The evidence tended to show that this Natchez trace highway and parkway could not be crossed except at public highway crossings, unless permission so to do was granted by the National Park Service, and that such permits under the rules of that service were not granted for longer than a year at a time. We are unable to say that the highway commission was in any way harmed by the refusal of the instruction. To be forced to go around by way of a public crossing from one side of the land to the other would have a bearing on the value of what was left.
The other questions raised are of so little merit as not to call for a discussion by the court.
Affirmed.