Opinion
No. 41935.
October 2, 1961.
1. Eminent domain — damages — jury verdict — judicial review.
The Supreme Court is reluctant to interfere with a jury verdict fixing value of private property taken or damaged for public use.
2. Eminent domain — damages — jury verdict — when and when not set aside.
Jury verdict of damages for a taking of private property for public use should not be set aside unless it is so excessive as to be contrary to the great weight of the evidence, or so excessive as to indicate bias or prejudice. Sec. 17, Const. 1890.
3. Eminent domain — damages — award excessive — remittitur ordered.
An award of $14,000 for the taking of approximately 25 1/2 acres of farm land was, under the evidence, excessive, although an award of $11,000 would be proper.
Headnotes as approved by Lee, P.J.
APPEAL from the Circuit Court of Lamar County; SEBE DALE. J.
Jesse W. Shanks, Purvis, for appellant.
I. The trial court erred in refusing to sustain appellant's motion for a new trial.
II. The verdict of the jury was contrary to the law.
III. The verdict of the jury is against the great weight of the evidence and is not supported by the preponderance of the evidence.
IV. The verdict of the jury is excessive and is not based on credible evidence.
V. The verdict of the jury is shocking to the enlightened conscience and was either based upon the testimony of incompetent witnesses or was the product of bias and prejudice, or sympathy.
Collation of authorities: Baker v. Mississippi State Highway Comm., 204 Miss. 166, 37 So.2d 169; Board of Levee Commrs. for Yazoo Miss. Delta v. Nelms, 82 Miss. 416, 34 So. 149; City of Jackson v. Wright, 151 Miss. 829, 119 So. 315; Louisville, N.O. T.R. Co. v. Ryan, 64 Miss. 399, 8 So. 173; Mississippi State Highway Comm. v. Burwell, 206 Miss. 490, 39 So.2d 497; Mississippi State Highway Comm. v. Ellzey, 237 Miss. 345, 114 So.2d 769; Mississippi State Highway Comm. v. Herring, 241 Miss. 729, 133 So.2d 279; Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Comm. v. Rogers, 236 Miss. 800, 240 Miss. 529, 112 So.2d 250, 128 So.2d 353; Mississippi State Highway Comm. v. Slade, 241 Miss. 721, 133 So.2d 282; Mississippi State Highway Comm. v. Taylor, 237 Miss. 847, 116 So.2d 757; Mississippi State Highway Dept. v. Blackburn, 172 Miss. 554, 160 So. 73; Schlicht v. Clark, 114 Miss. 354, 75 So. 130; State Highway Comm. v. Brown, 176 Miss. 23, 168 So. 277; State Highway Comm. v. Buchanan, 175 Miss. 157, 165 So. 795; Yazoo M.V.R. Co. v. Adams (Miss.), 31 So. 427; 18 Am. Jur., Sec. 361 p. 1004.
William E. Andrews, Jr., Purvis; Edward J. Currie, Sr. Jr., Hattiesburg, for appellees.
I. Cited and discussed the following authorities: Board of Levee Commrs. for Yazoo Miss. Delta v. Nelms, 82 Miss. 416, 34 So. 149; Faulkner v. Middleton, 186 Miss. 355, 190 So. 910; Ford v. Mississippi State Highway Comm. (Miss.), 123 So.2d 428; Mississippi State Highway Comm. v. Brooks, 239 Miss. 308, 123 So.2d 423; Mississippi State Highway Comm. v. Burwell, 206 Miss. 490, 39 So.2d 497, 40 So.2d 263; Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Comm. v. Strong, 240 Miss. 756, 129 So.2d 349; Mississippi State Highway Comm. v. Treas, 197 Miss. 670, 20 So.2d 475; Mississippi State Highway Comm. v. Turnipseed, 236 Miss. 764, 111 So.2d 925; Nicholson v. Board of Mississippi Levee Commrs., 203 Miss. 71, 33 So.2d 604; State Highway Comm. v. Brown, 176 Miss. 23, 168 So. 277; Warren County v. Harris, 211 Miss. 80, 50 So.2d 918; Secs. 2760, 2766, Code 1942.
This was a proceeding by the Mississippi State Highway Commission to condemn a right-of-way across the lands of J.O. Baker and Wife for Interstate Highway No. 59, a limited access highway. The jury in the eminent domain court fixed the damages at the sum of $11,000. On appeal by the Commission, the circuit court jury awarded $14,000. From the judgment entered thereon, the Commission appealed.
The Bakers owned 120 acres of land in a somewhat irregular shape, as described on the map introduced in evidence. They had lived on this place for about twenty-five years in a comfortable home, with running water, electric lights, telephone, and improvements such as a barn, tool house, etc. Approximately 25 acres had been devoted to cultivation. The balance was pasture and woodland on which they grazed 40 to 50 head of cattle. However, about four years ago, Mr. Baker, on account of ill health, sold his herd of cattle, and also abandoned his farming operations. Timber, now growing on the property, sprang up naturally and not as a result of a planned forestry operation.
This tract of land is situated about 3 1/2 miles from the Town of Purvis. It is bounded on the southwest by old Highway No. 11, a blacktopped road, for approximately 1,800 feet, and on the southeast by Davis Road, a graveled county road, for about 2,300 feet. The house faces the county road.
The right-of-way, running north and south across the land, ranges in width from 370 to 390 feet. An additional parcel is also to be taken for the construction of an overpass in lieu of old Highway No. 11, under which the new highway will be constructed. Thus the overall taking amounts to 25.42 acres. This will leave 23.81 acres on the west side, and 70.66 acres on the east side, of the right-of-way. The only possible access between these two parcels is a double culvert, ten by sixteen feet, to be installed for drainage purposes; but, according to the evidence, this will be of little, if any, value. All of the improvements, intact, are situated on the 70.66 acre parcel. It will be necessary to build some new fences. The overpass will rise to a maximum height of 19 feet, and will limit entrance to most of the frontage on old Highway No. 11. There is confusion as to whether the access to the 23.81 acre parcel can be obtained off of the overpass to be constructed. At any rate, it will be difficult and somewhat expensive to assure access. However, this parcel is largely woodland and obviously still has value.
Three witnesses testified for the Commission. The highest appraised value, before the taking, was $17,775, and, after the taking, $12,500. Their estimated damage ran from a high of $5,600 to a low of $5,150.
Four witnesses, including J.O. Baker, testified for the landowners. Their estimates of value, before the taking, were all in excess of $30,000; and, after applying their estimates of the value of the property, after the taking, they concluded that the damage would range between $14,950 and $21,500.
Of course 25.42 acres will actually be taken. While the 23.81 acre parcel on the west side will not be taken, it must be conceded that the value of this parcel will be substantially diminished because of the impairment of its accessibility. But, at the same time, it continues to possess value, and cannot be written off as worthless.
The overpass will undoubtedly impair the accessibility and desirability of the land abutting along old Highway No. 11. Some of the opinion evidence for the landowners placed the value of this land at as much as $500 an acre, and the whole 120 acres at $200 an acre. But it must be remembered that this land is 3 1/2 miles from town. Consequently it cannot be viewed as townsite property. Moreover, the value of this acreage must be determined from the uses to which it is adaptable, namely, farming, raising cattle, and growing timber. The evidence did not show that the productivity of this land for its adaptable purposes warranted the values which were placed on it by the landowners' witnesses.
The reduction of this tract to a compact 70.66 acres will result in some loss of value at least insofar as stockraising is concerned. Undoubtedly the larger acreage, for that purpose, would be more desirable and perhaps more profitable.
However, the witnesses for the landowners advanced no sound reasons to justify their astronomical figures either as to the value of the property or as to the damage which will result from this taking. (Hn 1) The Court is always reluctant to interfere with verdicts of juries which fix the value of private property which is taken or damaged for public use. It is contemplated and required that due compensation shall be made. Section 17, Constitution 1890. And of course, if the parties cannot agree, it is the function of a jury to determine the amount of the damage. (Hn 2) In such a case, the verdict should not be set aside unless it is so excessive as to be contrary to the great weight of the evidence or to indicate bias or prejudice. Miss. State Highway Commission v. Brooks, 239 Miss. 308, 123 So.2d 424; Miss. State Highway Commission v. Strong, 240 Miss. 756, 129 So.2d 349.
(Hn 3) If there had been no increase by the circuit court of the award of $11,000 by the eminent domain court, this Court would deem that amount to be excessive, although not so excessive as to indicate bias, passion or prejudice. But since the amount of the verdict here is $14,000, the Court finds that it is so excessive as to come within the foregoing rule.
If, however, the appellees within fifteen days from this date, will enter a remittitur for that part of the judgment in excess of $11,000, the cause will be affirmed with a remittitur accordingly; otherwise the cause will be reversed and remanded for a new trial.
Affirmed with remittitur; otherwise reversed and remanded for a new trial.
Kyle, Gillespie, McElroy and Jones, JJ., concur.