Opinion
No. 33264.
June 6, 1938.
1. EMINENT DOMAIN.
In condemnation proceeding, it is not proper, after awarding full damages for the property taken, to then allow additional compensation for those things without which it would have had no value.
2. EMINENT DOMAIN.
In proceeding to condemn land for highway purposes where it was not possible to determine value of land and buildings taken without taking into consideration that they were piped to some available water supply, the landowners could not be awarded additional damages based on value of spring which was not taken, even though the spring might be of no further value to the landowners.
3. EMINENT DOMAIN.
In condemnation proceeding, testimony in regard to the replacement cost of improvements on land taken may be admitted to assist the jury in determining the value of the improvements taken, but such cost cannot be taken as fixing the present value thereof without regard to depreciation.
4. EMINENT DOMAIN.
In proceeding to condemn a portion of three lots comprising a single tract and buildings and improvements located thereon, an award of $18,500 damages was excessive requiring a reversal unless a remittitur of $3,500 was entered.
APPEAL from circuit court of Warren county; HON. R.B. ANDERSON, Judge.
Russell Wright, Assistant Attorney-General, for appellant.
There is no testimony in this record to justify a verdict in the amount of $18,500.00.
The price paid by the owner of the property is not the test, neither is the valuation thereof as related to the owner, nor can it be affected by his sentiment in respect thereto.
State Highway Commission v. Blackburn, 172 Miss. 554, 160 So. 73.
In the Blackburn case, objection was made by the Mississippi State Highway Commission to the evidence of the replacement value of the house which was being taken by the Highway Commission. This objection was overruled by the court. In the Blackburn case, the action of the court, in not sustaining the objection, was not assigned as error, but an instruction, denominated by the court as an instruction on a replacement measure of damages, was complained of. The court held that, aside from any other criticism of the instruction: "It was, in substance, a different rule from the measurement of damages given by the court for the appellant" and that the jury had two separate rules for measuring damages. It is true in this case that the court properly instructed the jury with regard to the measure of damages, but it is also clear that the court permitted evidence to go to the jury on the replacement value of the buildings and that, under the Blackburn case, this testimony was erroneously admitted.
State Highway Commission v. Day, 181 Miss. 708.
Section 17 of the Constitution guarantees that the property owners shall have due compensation, but it does not mean that they shall be compensated in such sum as will place them in their original status and that they shall be compensated for the replacement value of buildings, and that they shall be compensated to the extent of the amount that they would necessarily have to have invested to bring them a return at a certain percentage of interest. That clearly is what this record shows.
Chaney Culkin and R.M. Kelly, all of Vicksburg, for appellees.
We do not believe, under the testimony, the jury would have been warranted in returning a verdict for less than $18,000.00.
Where land is condemned for public uses, the value of buildings or other improvements and fixtures on the land must be considered in determining the owner's compensation. Buildings are a part of the realty, and their value cannot be considered except in connection with the realty. If, however, they are wholly taken or destroyed, or partially injured by the taking of land, the resulting loss constitutes an element of damage. If a building is wholly taken or destroyed, its market value is the extent to which it enhances the owner's compensation. If the building is only injured, then the damages must be confined to the actual injury done to it. The cost of erecting a new building in the place of the one injured or destroyed may be taken into consideration, although there is authority to the contrary.
20 C.J. 799, sec. 247; Banner Milling Co. v. State of New York, 148 N.E. 668; St. Louis v. Turner, 55 S.W.2d 942.
We respectfully submit that even though the court may have been in error in admitting certain testimony, or excluding certain testimony, the result necessarily would have been the same.
Louisville, New Orleans Texas R.R. Co. v. Ryan, 64 Miss. 399.
These twelve jurors were witnesses in the case, and due consideration, this court has repeatedly held, should be given to the fact that the jurors visited the scene and examined the property involved. This is true in all cases, and should be doubly so in eminent domain cases, for the reason that the statute requires the jury to visit the premises.
National Box Co. v. Bradley, 157 So. 91.
Argued orally by Russell Wright for appellant and by John Culkin for appellee.
Mrs. Eula M.T. Hudgins, one of the appellees, was the owner of three lots or parcels of land, comprising a single tract, situated in the town or village of Waltersville, about two miles north of the City of Vicksburg, and which tract of land had a frontage of approximately 200 feet on U.S. Highway 61, and extended back to the property of the Vicksburg National Cemetery. The appellant, Mississippi State Highway Commission, desiring to use a portion of the land for the purpose of straightening out a curve in said highway, filed its petition in the county court of Warren County to condemn the part of the land needed, consisting of a strip approximately 30 feet wide at the south property line and 78 feet wide at the north line, extending across the front end of the three lots. On the part thus sought to be condemned, there were several buildings, including a wood and frame construction store building with a brick veneer front (used by appellee as a residence, grocery store, restaurant, dining rooms, soft drink stand, meat market, and dance hall), a filling station, and tourist camp. The source of water supply for these buildings was a spring located on that portion of the land not to be taken in the condemnation proceeding, and on which said portion some of the tourist camp houses were stationed. From the rear end of the three lots, and extending to the part condemned, there was a steep hillside, which is shown to be of no value, after the level portion of the lots was taken for highway purposes. The petitioner took possession of the part condemned, and dismantled the buildings located thereon.
Upon the trial of the cause in the county court a judgment was rendered in favor of the owner for $18,500, which was affirmed in the circuit court on the record, there being no request there made for a trial de novo. Upon the overruling of a motion for a new trial, the petitioner appeals, assigning as error the excessiveness of the verdict, and the admission of incompetent evidence, etc.
The proof discloses that during the early part of the year 1935 and 1936, the owner, together with her husband, executed an option on all of the lots and buildings, in favor of the United States Government, for use as additional National Cemetery grounds, at the price of $10,500, based on an estimate of the replacement cost of the buildings and of a concrete reservoir at the spring, and which estimate was made by two representatives of the government in the sum of $11,698; that a witness for appellee, shortly before the trial, made an estimate of the replacement cost of the buildings and of the concrete reservoir at the sum of $12,072.18, with a view of bidding on the work of their replacement should the occasion arise; that this witness valued all of the lots at $3,000, the spring left on the hillside at $3,000, and was permitted to testify, over the objection of the petitioner, to a total value of the property taken, and the spring, in the sum of $18,000, without making any allowance for depreciation of the buildings or stating what the allowance for depreciation should be. Another witness, a fire insurance agent, testified to a replacement cost of $12,000 as a basis for his opinion of the value of the property taken, but failed to qualify as a witness as to land values in that locality, and stated that in estimating the value of buildings for insurance purposes, he considered only replacement cost. Another was of the opinion that the property taken could, within a reasonable course of time, depending on economic conditions, be sold for $17,500, explaining that he meant within a year, depending on economic conditions; and other testimony was given, over the objection of the petitioner, to the effect that it would require the removal of approximately 8,000 yards of dirt at a cost of $5,000 to excavate enough of the hillside to provide a place for the replacement of the buildings.
In passing on the objection to the testimony in regard to the replacement cost, the court stated that the testimony was admitted to assist the jury in arriving at the present market value of the property, "and for that reason alone." The record shows, however, that this statement was made by the county judge out of the hearing of the jury; and while the jury was properly advised in the written instructions as to the proper rule for the ascertainment of the damages, it is manifest that the full replacement cost was allowed by the jury as an item of damages in arriving at its verdict, since the amount awarded cannot be sustained on any other theory. Some of the buildings were shown to be ten years old, of frame construction and of composition roofing, and it appears that no depreciation was allowed on account thereof. Moreover, the amount of the award shows that a value of $3,000 for the spring, testified to by one of the witnesses, was evidently accepted by the jury as correct in arriving at a total verdict of $18,500. The drinking water used on the premises did not come from this spring; and it is not reasonable to suppose that a source of water supply for general purposes in the buildings so near the Mississippi river, where wells are obtainable, has such a value as there contended for by the witness. Then, too, it is not proper, after awarding full damages for the property taken, to then allow additional compensation for those things without which it would have had no value. It is true that the spring may be of no further use to the owner, but it is not possible to determine and fix the value of the buildings without taking into consideration that they are piped to some available water supply, and the value of these advantages should not be duplicated in estimating damages.
While there is authority for the admission of testimony in regard to the replacement cost of improvements on the land taken in an eminent domain proceeding, so as to assist the jury in determining the value of the improvements taken, such cost cannot be taken as fixing the present value thereof without regard to depreciation.
Other errors are assigned; but in view of the conclusion that we have reached it is unnecessary that they be discussed.
Unless a remittitur of $3,500 shall be entered, the judgment will be reversed. If such remittitur be entered, the case will stand affirmed.
Affirmed with remittitur.