Opinion
March 28, 1949.
1. Eminent domain — rule for valuation.
The correct rule for the ascertainment of the entire damage in eminent domain is the value of the land taken plus the damage, if any, to the remainder of the tract, testing these by the comparative value before and after the taking.
2. Eminent domain — estimates based on speculation as to future events and upon elements other than those which substantially incident to the before and after rule.
When the highest estimates placed upon the damages in an eminent domain case, by witnesses who properly adhered to the before and after rule for valuation, did not exceed the sum of $2,790.00 and all higher estimates involved speculative features or other elements not admissible for consideration in fixing damages, a verdict for a higher sum than the $2,790.00 will not be allowed to stand and a remittitur will be accordingly ordered.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Lauderdale County; JESSE H. GRAHAM, J.
John M. Kuykendall, Jr., for appellant.
When part of a larger tract of land is taken for public use the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking and the fair market value of that remaining immediately after taking and evidence of alleged specific injuries to the remaining land is not competent unless the same would affect the market value thereof.
The above stated measure of damages was clearly and firmly established in the case of Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565, and was the measure of damages which the court instructed the jury to follow in the consideration of this case. The maximum amount which any witness in this trial testified to be the market value of the entire 100 acre parcel involved was $100.00 per acre or $10,000.00 for the entire tract. On its face, a verdict in the amount of $5,000.000 which is one-half of the defendant's own valuation of the entire tract, when only about thirty per cent of said tract was taken appears excessive. Three of defendant's witnesses placed a value of $100.00 per acre on the land actually taken. Assuming for the purposes of this discussion that there was sufficient evidence for the jury to accept this valuation as correct it could only account for $2,790.00 of the verdict, thus leaving the sum of $2,210.00 of the verdict which the jury must be presumed to have awarded for the damages claimed by defendants. In other words, defendants claim that the taking of 27.9 acres of a valuation of $2,790.00 out of their $100.00 acre tract which had a valuation of $10,000.00 had damaged the remaining land in the amount of $2,210.00. Before going further it should be noted that neither the testimony of Mr. Emerson Harwell nor Mr. Oscar Moore will support damages in this amount because the former testified that the difference in the market value before and after the taking of the entire tract amounted only to $25.00 (which would be approximately $750.00) and the latter admitted that the acreage remaining after the taking would have the same valuation as before. The question now remaining is what were the elements of damage on which the jury could base their finding of $2,210.00? It is submitted that because the claimed elements of damages appearing in defendant's testimony are improper and were not shown to affect the market value of the property remaining in any degree whatsoever, the jury had no basis at all upon which to return these damages. The defendants claimed that construction of the highway would (1) separate two cattle pastures which were already separated before the taking by the railroad right-of-way, (2) require the construction of hypothetical fences, testimony concerning which was speculative, indefinite and mere guess work, (3) interfere with private roads personally used by the defendant for hauling logs to a saw mill without proving either location of the roads or the saw mill to be upon the 100 acre tract involved here, and (4) decrease the potentiality of use of the land remaining south of the highway as industrial property without showing that said land was adapted to such use or that there was any probability of its being so used any time within the near future or that such potentiality in any way affected the market value of this particular land. All of the above claimed elements of damage are obviously improper and there was absolutely no evidence introduced by the defendant to prove that they had any effect whatsoever upon the market value of the property remaining. As a matter of fact, the only evidence introduced on behalf of the defendants as to the market value of the property remaining reflected a decrease of only $25.00 per acre out of the whole tract.
Gilbert Cameron, for appellees.
The only issue involved in an eminent domain case is the amount to be paid the property owner. The power to take cannot be challenged. The jury is the sole judge of the due compensation required to be paid for the land taken.
The courts are unanimous in holding that wide latitude is to be allowed in the testimony; if this was not true there could never be an end to the litigation for the whole question of value is mere opinion, guesses and speculation. These opinions vary, as in this case from $25.00 an acre to $250.00 an acre. The jury after viewing the premises for about half a day returned a verdict about midway between these figures.
Before the petitioner had finished its case the court adjourned to the premises being condemned and proceeded to take testimony there, and the entire scene was viewed by the jury. This court said in National Box Co. v. Bradley, 171 Miss. 27: "It may be that, without the view of the place and premises had by the jury, we would have been inclined to reverse this judgment in response to the above-stated contention of appellant (that verdict was against the weight of evidence); but we are bound by the rule, as stated in Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167, that where there has been a view or inspection of the place or premises by the jury we cannot reverse on the evidence, if there by any substantial testimony, delivered by sworn witnesses in support of the verdict."
In the case of Indiana I. L.R. Co. v. Stauber, 56 N.E. 1097, 1082, Second Column the court said: "As this court said in Railway Company v. Lyons 159 Ill. 576, 43 N.E. 337: `The jury themselves viewed the property, and amid such conflicting testimony were probably largely influenced in making up their verdict of their own calculations made from a personal inspection of the premises. . . . We do not know what weight the jury may have given the testimony of the witnesses for appellees and appellant, respectively, or to what extent they relied upon the evidence obtained by them from their own view of the premises. We cannot, therefore, say whether the damages are excessive, and against the weight of the evidence, or not.' (citing authorities) We do not regard the damages as grossly excessive under the evidence in this case, and it is the settled doctrine of this court that the damages awarded by a jury in a condemnation proceeding will not be disturbed where the evidence is conflicting and the jury view the premises. Rock Island R. v. Lesley, 174 Ill. 547, 51 N.E. 572." See Mississippi Highway Commission v. Treas, 197 Miss. 670, 675.
It is, of course, common knowledge that the location of lands and adaptability determines its market value. The lands condemned begin one-fourth of a mile West of the corporate limits of the City of Meridian and the jury in viewing the premises, as shown by the testimony, could see the various and sundry improvements and industries in the City of Meridian from this road; in fact the City lights will shine along this public road. This court judicially knows the tremendous expansion of the various cities in Mississippi and knows how rapidly the cities are growing and spreading out.
1. Appeal — remittitur — interest on balance.
Where a verdict in an eminent domain case has been affirmed upon remittitur, the appellee owner is entitled to 6 per cent interest on the balance of the judgment after deducting the remittitur, the interest to run from the date of rendition of judgment in the trial court.
2. Appeal — remittitur — damages.
When on appeal a judgment has been affirmed upon remittitur, appellee is not entitled to the 5 per cent statutory damages and this whether the action be ex contractu or ex delicto.
Headnotes as approved by Montgomery, J.
This is a proceeding by which the Mississippi Highway Commission seeks, by condemnation, to obtain title to 27.9 acres of land for use as a public highway. The jury returned a verdict in the sum of $5,000.00 The only question involved is whether the verdict is manifestly excessive.
The land condemned is a part of a tract of 100 acres. Four witnesses testified for the condemnor, other than its engineer. The four were entirely disinterested. In fact three of them were real estate men of long experience and a low value might be considered against their interests. The four estimated the damage to the owners from $697.50 to $1,400.00 (Hn 1) They measured the damage by the value of the land taken plus the damage, if any to the remainder of the tract, testing that by the comparative value before and after such taking, which is the correct rule for ascertaining the entire damage. Baker v. Mississippi State Highway Commission, Miss., 37 So.2d 169.
Four witnesses, other than Henry Burwell, one of the owners, testified for defendants. One estimated the value of the land taken at $100 per acre without qualifying his testimony under the before and after value rule. Another placed a value on the land to be taken at $100 per acre and thought that after such taking the remainder would be worth $75 per acre. He owned land adjoining the 100 acre tract. Naturally, it was to his interest to place a high value on land adjoining his. This man also added, as an important element of damage, as he expressed it, ". . . you are cutting Mr. Burwell away from the railroad". There is no evidence whatever that the taking of the 27.9 acres would prevent Burwell having access to the railroad. It is clear from the record that is not a fact. The owner did not even reside upon this 100 acre tract. Another witness for the owner placed a value of $100 per acre on the tract and $100 per acre on the remainder. He said he would not pay $75 per acre for it and did not know whether he would pay $50 an acre. He included, as an item of damage, inconvenience in getting timber to a sawmill which he assumed would result from a construction of the highway. It is not shown in what manner, or to what extent, the construction of the road would have interfered with getting timber to the mill. The witness admitted he did not know whether the mill was located on the 100 acre tract, and it finally developed it was not located on that tract. The other witness placed a value of $250 on the land to be taken, without qualifying his estimate by the before and after taking rule. Indeed, he and one of the other witnesses for the owners, measured their values by what they had understood some oil, or other corporation, had paid for a small parcel of land, located some distance from the land in question, apparently surrounded by much more favorable conditions than the lands in question. This witness also attached considerable importance to the assumed interference in hauling timber to the sawmill. Finally, however, when pressed to give him opinion of the fair market value of the entire tract, he replied "I wouldn't attempt to."
It is shown without dispute that there were only two or three acres in cultivation on the whole tract; that it had been used mainly for pasture; that the land to be taken was low and wet.
It is clear that the high-estimate witnesses attached much value to speculative elements, such as the possibility that the growth of the City of Meridian would some day approach this land sufficiently near to increase the value thereof. It is evident the estimates of these witnesses were largely guesswork. (Hn 2) The two witnesses for the owners who properly qualified their testimony by the before and after value estimated the damage to the owners at $100 per acre for the land taken. That would aggregate $2,790.00. No verdict for a larger sum should be permitted to stand on this record. If appellees will enter a remittitur reducing the judgment to that amount, the verdict and judgment will be affirmed; otherwise the case will be reversed and remanded for trial before another jury.
Affirmed with remittitur.
On a former day we affirmed the judgment of the trial court with remittitur, and judgment was entered by the Clerk here without interest, without the five per cent damages allowed by Section 1971 of the Code of 1942, and taxing the costs on appeal against the appellee. Appellee has moved the Court to correct the judgment in the above particulars.
(Hn 1) With reference to the allowance of interest and the taxing of the costs against appellant, we are of the opinion that this is controlled by State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345, 6 So.2d 468, and the judgment is hereby corrected so as to allow interest at six per cent upon the balance of the judgment rendered in the lower court, after entering the remittitur, same to run from the date of the rendition of the judgment there.
(Hn 2) The appellee is not entitled to recover the five percent damages. In Vicksburg S. P.R.R. Co. v. Lawrence, 78 Miss. 86, 28 So. 826, and Howie et al. v. Bonds, 87 Miss. 698, 4 So. 257, we held that in case of the affirmance of a judgment by the Supreme Court upon remittitur of a part thereof, the appellee is not entitled to recover the five percent damages, and this is true whether the action be ex contractu or ex delicto.
Accordingly, the motion will be sustained so as to allow interest at six percent on the judgment, exclusive of the remittitur, overruled as to the allowance of the five percent damages and the costs of the appeal will be assessed against the appellant, Mississippi State Highway Commision.
Motion sustained in part and overruled in part.