78 So. 2d 797 | Miss. | 1955
In 1949 the Mississippi State Highway Commission duly adopted an order authorizing the institution of an eminent domain suit against the appellees for the appropriation of 0.46 acres of land for construction of State Highway No. 4 “as more particularly shown by the plans and specifications for said project on file in these offices, which plans and specifications are made a part hereof by reference.” Pursuant thereto a suit was instituted and a copy of said order was attached. The plans and specifications called for a present increase of four feet in the elevation of the grade -of the highway adjoining appellee’s remaining property not appropriat
The judgment was paid and the highway commission, by its contractor, entered upon the land and raised the grade four feet approaching an old bridge which spanned two railroad tracks, and hard surfaced the new grade. The date when this work was completed is not shown by the record.
In 1952 the highway commission, through its contractor, again entered upon the land and constructed a new bridge over the railroads which was four feet higher than the old bridge and they raised the grade of the highway approaching the bridge a maximum of four feet additional. Appellees then brought suit against the highAvay commission and its contractor for $7,500.00 damages for this increase in grade opposite their property and recovered a judgment for $5,000.00 from which both the highway commission and its contractor appeal.
Several grounds for reversal are assigned but we think it necessary to consider only one which is that the ap
In Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 868, 198 So. 565, we said: “The compensation awarded the landowner in an eminent domain proceeding is conclusively presumed to include all damages resulting to him from the proper use of the land taken, here specifically from the proper construction of the contemplated highway.” Numerous Mississippi cases are cited supporting this rule.
In the case of Rand v. Mississippi State Highway Commission, 191 Miss. 230, 237, 199 So. 374, Chief Justice Smith, in a concurring opinion stated the same rule in slightly different language as follows: “* * * the statute does not contemplate that counties and the Highway Department, when taking land for highway purposes, should limit the construction of the highway to a particular plan, and when the highway is to be paved, as this one is, to any particular character of paving. In other words, the statute contemplates that the counties and the Highway Department shall have a free hand in constructing the character of a highway that most nearly conforms to the public interest and welfare. What satisfies this requirement on one day may fail to do so on the next.”
Appellees rely on Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162, in which Parker brought suit against the highway commission for damages to his property .by reason of a change in grade of Highway 11 abutting his property, and this Court there held that under Section 17 of the Mississippi Constitution private
Our decisions find abundant support in the authorities from other jurisdictions. In 29 C. J. S., page 1370, Eminent Domain, Section 328, it is said: “Applying the principles stated above, it is the rule, subject to statutory exceptions, that the owner must recover in one proceeding all the damages which have resulted, or are reasonably likely to result in the future, from a proper construction and operation of the improvement, and no subsequent action will lie to recover items which were or might have been considered in the original proceeding, the presumption being that all proper damages were considered in such proceeding.” The Hillman case, supra, and authorities from seventeen other jurisdictions, are cited in the notes as supporting the above rule.
It is our conclusion, therefore, that appellee’s judgment in the eminent domain court covered all damages which might reasonably result to them from the construction of the highway in question and that they are not entitled to any further damage resulting from the second elevation of the grade of the highway. For this reason the peremptory instruction should have been granted to appellants. The judgment of the lower court is therefore reversed and judgment here entered in favor of appellants.
Reversed and judgment here.