Summary
In Mississippi State Highway Commission v. Prewitt, 186 Miss. 778, 192 So. 11, this Court recognized that the Highway Commission was under no duty to construct an underpass connecting the two severed portions of lands over which a highway was constructed, but the Commission could have constructed the underpass and enhanced the market value of the remainder of the property, thus lessening the damages it would have to pay the landowner.
Summary of this case from Beaver Dam Drain. Dist. v. McClainOpinion
No. 33872.
November 13, 1939.
1. TRIAL.
Where instructions given in condemnation proceeding sufficiently and fully announced the law as a guide for the jury, refusal of other instructions was not error.
2. EMINENT DOMAIN.
In condemnation proceeding, the difference in value of land to be determined is the difference immediately before the taking and immediately after the taking of the land.
APPEAL from the circuit court of Choctaw county; HON. JOHN F. ALLEN, Judge.
E.R. Holmes, Jr., Assistant Attorney-General, for appellant.
The court erred in refusing appellant instruction shown on page 36 of the record. 13 L.R.A. (N.S.) 420. The instruction is as follows: "The court instructs the jury for the petitioner that jury shall not allow the defendants any damages for any loss of reason of inconvenience to the owners or defendants, which does not enter into the market value of the property actually taken for public use."
The instruction asked for as shown on page 38 of the record is a quotation from the State Highway Commission v. Day, 181 Miss. 708, which case followed the case of Schlicht v. Clark, 114 Miss. 354. The instruction is as follows: "The object of our statute is to enforce Section 17 of the Constitution of 1890 insofar as to ascertain what amount the owner fairly loses when his land is taken by eminent domain for public improvement, and the many items which may arise in a case insofar as they show a depreciation of the owner's property by the taking are never competent as separate items of rcoverable damage."
This instruction is particularly applicable in this case for the reason that the defendant by his testimony divided his damages into separate items, to-wit: $60.00 per acre for the land taken, $225.00 for the fence and $499.00 for inconvenience, etc. The defendant was trying to pyramid his damages by adding item on item and this court has repeatedly held that it confuses the jury by hurling a mass of figures at them which mean nothing.
State Highway Commission v. Day, 181 Miss. 708; State Highway Commission v. Brown, 176 Miss. 23; State Highway Commission v. Chatham, 173 Miss. 427; State Highway Commission v. Randall, 178 Miss. 486.
We likewise contend that the court erred in refusing the instruction appearing on page 40 of the record, which is as follows: "The court instructs the jury for the plaintiff that in arriving at your verdict you shall consider the difference in the market value of the property with the improvement, and that without it, not considering general benefits or injuries shared by the public in general."
City v. Higgins, 81 Miss. 381; State Highway Commission v. Day, 181 Miss. 708.
The court below erred in refusing instruction appearing on page 42 of the record which is as follows: "The court instructs the jury for the plaintiff that in arriving at your verdict you are to award the defendants the cash market value of the land actually taken; and if you find that the cash market value of the remaining property after the improvement is equal to, or greater than, the cash market value of the property before the improvement, then you are to award the defendants only the cash market value of the land actually taken."
City v. Higgins, 81 Miss. 381; Schlicht v. Clark, 114 Miss. 354.
We respectfully submit that the law covered in these four instructions should have been given to the jury and as the statements of law contained in them are covered by no other instruction, the refusal of each of these instructions or any one of them, would reverse and remand this case.
Jack B. Carlisle, of Ackerman, for appellees.
We respectfully submit that the court did not commit error in refusing the four instructions because they did not properly state the law governing the cause, and/or they had no foundation in the evidence, and/or were covered by given instructions, and/or did operate to the prejudices of the appellant.
The court properly refused the instruction appearing on page 36.
We cannot find any decision which supports the theory that this properly states the law in this state, but granting that it does, no error was committed for no evidence as to damages was adduced upon the trial that did not enter into the market value.
Collins v. Union Bank, 70 So. 581, 110 Miss. 508; Telegraph Co. v. Cosnahan, 62 So. 824, 105 Miss. 615; State Highway Commission v. Meador, 186 So. 642.
The court properly refused the instruction appearing on page 38.
State Highway Com. v. Meador, 186 So. 642; Collins v. Union Bank, 70 So. 581, 110 Miss. 508.
The court properly refuses appellant instruction appearing on page 40 of the record.
Appellant relies upon City v. Higgins, 81 Miss. 376 for this instruction and asserts that same was upheld in State Highway Com. v. Day, 180 So. 794, but we fail to find that the latter case upholds same. If instruction correctly states the law, the court would only have been repetitious for the reason that instructions given appellant as found on pages 35 and 37 of the record, when read together, cover the same points of law. Only "injuries shared by public" is omitted; but same has no basis in the evidence for no witness gave testimony of public injury.
Yazoo R. Co. v. Dees, 83 So. 613, 121 Miss. 439; Yazoo R. Co. v. Walls, 70 So. 349, 110 Miss. 256; State Highway Com. v. Meador, 186 So. 642; Newman Lbr. Co. v. Dantzler, 107 Miss. 31, 63 So. 333.
The court properly refused appellant instruction appearing on page 42 of the record.
This instruction is not the law. We insist that to uphold the same would be a wide departure from the more or less settled law governing eminent domain, and the principle of Sec. 17 of the Constitution of 1890. Should it be decided that this instruction is the law, its refusal in the court below was no error, for to have given the same would have mislead the jury, as well as have operated to the prejudice of the appellee, inasmuch as the appellant by its every witness gave testimony of (1) actual cash value of the 4.6 acres taken and (2) damage of necessary fencing in arriving at the total damage to entire tract. The fact that fencing or fence replacement was damage as contemplated by the law was never contradicted by any witness.
State Highway Com. v. Meador, 186 So. 642; Collins v. Union Bank, 70 So. 581, 110 Miss. 508.
This is an appeal from a judgment in an eminent domain condemnation proceeding for property condemned for a highway. In the eminent domain court, there was a judgment for $500, damages for the property taken under the proceedings, and for damage to the remaining land; from which judgment an appeal was taken to the circuit court where the case was tried anew, and a judgment for the same amount was rendered in the circuit court. The evidence as to the amount of damages, both as to the land taken for the highway and for the damage to the remainder of the land after the taking, was conflicting. There was testimony both above and below the amount awarded.
The appeal presents questions of the propriety of certain instructions refused to the Highway Commission. We have examined the instructions given and are of the opinion that they sufficiently and fully announce the law as a guide for the jury and that consequently there was no error in refusing other instructions. Some of the instructions contained this language: "the difference in the market value of the property with the improvement, and that without it, not considering general benefits or injuries shared by the public in general." The use of the words "with the improvement" is not accurate. The difference in the value to be determined is the difference immediately before the taking and immediately after the taking of the property in the condemnation proceedings, and not whether after improvements are made the land might be worth as much or more with the improvements than without them. A highway might exist in an unimproved condition for several years, and then be improved by being paved or otherwise changed for betterment, and it might take a considerable period of time to determine whether there was an increase in value or not. Consequently, the court did not err in refusing such instructions.
The other instructions requested and refused would tend to confuse a jury rather than to enlighten it. In considering instruction on appeal, if the instruction given properly and sufficiently announced the law applicable to the case the court will not reverse, even though other instructions announce correct principles.
We find no reversible error in the case.
Affirmed.