Opinion
No. 33831.
November 6, 1939.
1. EVIDENCE.
An offer for property is not admissible as evidence of value.
2. EMINENT DOMAIN.
Erroneous admission of offer for property involved in condemnation proceedings as evidence of value was not harmless, where the only other witness to value was owner's husband and question of value was largely bound up in estimates and opinions.
APPEAL from the circuit court of Warren county; HON. R.B. ANDERSON, Judge.
Brunini Brunini, of Vicksburg, and E.R. Holmes, Jr., Assistant Attorney-General, for appellant.
Offer of Phelps to purchase part of Johnson property and pay for same in stock was inadmissible.
10 R.C.L. 220, Sec. 188; 18 Am. Jur. 994; L.N.O. and T.R.R. Co. v. Ryan et al., 64 Miss. 399; Pierce on Railroads, 202; 1 Rorer on Railroads, n. 1; Dickenson et al. v. The City of Fitchburg, 13 Gray 554; St. J. Denver Co. R.R. Co. v. Orr, 8 Kans. 419; Railroad Company v. LeBlanc, 74 Miss. 726; Railway Co. v. Ryan, 64 Miss. 399; Sanitary District of Chicago v. Boening, 107 N.E. 810; 2 Lewis on Eminent Domain, (3 Ed.), Sec. 662; Languist v. City of Chicago, 200 Ill. 69, 65 N.E. 681; City of Chicago v. Lehmann, 104 N.E. 829; Sherlock v. Chicago, Burlington Quincy Railroad Company, 130 Ill. 403, 22 N.E. 844; Jefferson Park District v. Sowinski (Ill.), 160 N.E. 370, 371; State Highway Department v. Blackburn, 172 Miss. 544, 160 So. 73; Schlicht v. Clark, 114 Miss. 354, 75 So. 130; State Highway Department v. Brown, 176 Miss. 23, 168 So. 277; State Highway Commission v. Day, 181 Miss. 708, 180 So. 794; State Highway Commission v. Chatham, 173 Miss. 427, 161 So. 674; Orgel's "Valuation under Eminent Domain," 494 to 503; State Highway Commission v. Buchanan, 175 Miss. 157, 166 So. 537.
The testimony is insufficient to sustain any verdict, unless by reason of Phelps' offer.
State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277.
It is our contention that the error complained of in this case is not one of the "harmless errors." This is for two reasons: First, it is not a simple error based upon a minor rule of evidence or a technicality. It is an error which goes to the very heart of the litigation; and second, the judgment in this case is not on its face right upon the justice of the case.
State Highway Commission v. Brown, 176 Miss. 23.
Chaney Culkin and R.M. Kelly, all of Vicksburg, for appellee.
The chief ground relied on for a reversal, as we understand, is the action of the trial court in admitting testimony relative to an offer made to purchase the land involved. We do not believe the action of the trial court in this respect was error. Certainly it was not prejudicial error. Based on recent rulings of our Supreme Court, it is our opinion that it was not error to admit evidence with reference to offers made to purchase the property in question.
City of Clarksdale v. Fitzhugh, 185 So. 587; Mississippi Highway Commission v. Buchanan, 166 So. 539.
Market value of property taken or injured for public use means the fair value of the property as between one who wants to purchase and one who wants to sell, its present value at a sale which a prudent owner would make if at liberty to fix the time and conditions of sale, not what could be obtained for it at a forced sale or under peculiar circumstances, nor a value obtained from the necessities of another.
20 C.J. 727.
If it was error to admit the testimony with reference to Mr. Phelps' offer, such error was not prejudicial to the rights of the plaintiff. This is true for the reason that no witness testified the property taken was worth less than the amount awarded by the jury. The plaintiff did not produce any evidence as to the value of the property which it took. It simply pointed out to the court and jury the property lines, leaving it to the defendants to establish the reasonable value of the property to be taken. The court will observe that every witness who testified for the defendants, on the question of the value of the property, placed the value largely in excess of the amount fixed by the jury.
L.N.O. T.R. Co. v. Ryan et al., 64 Miss. 399.
It is a universal rule that incompetent testimony tending to establish a certain fact is not prejudicial error, where that particular fact is supported by other evidence.
Levee Commissioners, etc. v. Lee, 85 Miss. 508; Union Planters Bank Tr. Co. v. Rylee, 130 Miss. 892.
The testimony is sufficient to sustain verdict.
There is involved here a proceeding in eminent domain to condemn a strip of land amounting to about three-fourths of an acre. There was a verdict for $2,000. Only two witnesses testified directly on the issue of value, and the first of these, introduced by the owner, proceeded at once to state over the objections of the Commission that before the taking he had made an offer of $5,000 payable in the stock of a proposed gin company for the three or four acre lot of which the strip in question was a part, and this was followed by the testimony of the only other witness, who was the husband of the owner, that the taking of the strip ruined the lot as a gin site.
It is definitely settled in this State, in accord with the rule in nearly every jurisdiction, that an offer for property is not admissible as evidence of value. Louisville, N.O. T. Railroad Co. v. Ryan, 64 Miss. 399, 404, 8 So. 173; Illinois Central Railroad Co. v. LeBlanc, 74 Miss. 626, 645, 21 So. 748.
Appellee contends, however, that the error in the admission of the challenged evidence should not reverse because there was other competent evidence of value, and appellee relies on Louisville N.O. T. Railroad Co. v. Ryan, supra. In that case it was held that the state error would not reverse where there was an abundance of other evidence to sustain the verdict, but we cannot consent to the proposition that there is an abundance of other evidence when the only other witness is the husband of the owner deeply interested in the result, and where the question at issue is so largely bound up in estimates and opinions on the matter of land values, in which regard, interest will inevitably affect the testimony of the interested party, however honest in it he may intend to be.
Inasmuch as the case is to be remanded for a new trial, we call attention to another feature in the evidence to which the Commission did not object when it was first mentioned, but did later object when the matter was again brought up. There is a small sawmill on the land of the owner and adjoining the right of way strip here in question. This mill had been paying a ground rental of $20 per month, but upon the expiration of that lease and after the strip was actually taken and the new highway laid thereon, the lease was renewed at $30 per month. The point to which we here direct attention is that the husband of the owner was allowed to testify that the lessor "was going to pay fifty dollars a month" for the new lease, but after the taking of the strip refused to pay more than $30.
There is no showing whatever that this fifty dollar per month proposition had ever gone further than a tentative offer, wherefore it would seem to come within the rule respecting offers or proposals, in regard to which we have already said that offers or proposals are improper as evidence upon values. But the admissibility of this rent proposal is not argued by the Commission in its brief, and for that reason we prefer to make no definite decision on the precise point, but state it in the manner that we have done in order that the parties may not be misled about it on the new trial.
Reversed and remanded.