*1 890
Mississippi party A who Code 1942. wishes objections replevin to himself an avail affidavit form time, must so and not for do in seasonable appeal. trial verdict, first time after or on appellant process properly served with permit judgment by elected to to be taken default against being him. The error one of form is cared Mississippi Section Code 1942.
Affirmed. Gillespie, Kyle
McGehee, G.J., Lee, JJ., con- cur.
Mississippi et al. Valentine, No. 41569 November 2d *2 appellant. Beard, Laurel, & for Ratcliff, Pack George Maxey, appellee. E. Collins, D. K. Laurel, *3 J.
Ethridge, Appellant, Highway Commission, filed County Court of the First Judicial District of Jones County, Mississippi, petition high- a to condemn for way purposes twenty strip through a acre of land the county cattle Valentines’ farm. The the court rendered a verdict the of $32,000. Valentines The appealed Commission to the court, circuit where the jury’s verdict was The Commission contends upon judgment the the circuit verdict, court’s grossly passion so based, was excessive as to evince bias, prejudice by jury. agree position. We with that Appellees, Mr. and Mrs. J. A. Valentine, own County, acre farm in cattle the first district of Jones City property of the southwest of Ellisville. The con- tracts, sists of two 40-acre one north of the an- other, irregularly 40 west the north and an subdivision, shaped tract of about 18 acres above the two north Adjacent portion forties. north is State county and below is a road on the west side. Near highway county the state road west is residence. by appellant strip contains condemned of land northeasterly in a and runs wide, is 370 feet acres, por- through southwesterly the eastern direction this non- and east of of the farm. To south
tion separated 34 acres which are there are access place remaining to the west of 84 acres of the from the condemning highway. Although the is Commission permissive rights, user of there would be access highway 84 to the from the western viaduct under the permissive the use is 34 acres. since eastern only, highway cut off to the the effect of the is to access its east side the Mis- tract, east which is hounded on sissippi Hospital looking at at Hence, Ellisville. favorably appellees, the the matter most condemning of 20 cutting the 34 acres east off access to highway. not take mineral The condemnation does highway. rights under the upon this cattle farm are
None of the way, except possibly being by the taken fencing near the which is not described. residence old, home, in “dire need line an five-room northwest square repair.” It consists of 1100-1200 feet. The highway to the state access of this residence *4 county unchanged. the east of the home is road is To primarily good for the substantial, barn, constructed storage feeding large with a area for the of cattle, hay ground 4,200 It contains about above the level. pump, square feet. There are an electric several small ponds. im- three cattle None of these outhouses, and way being provements right consider- are taken, ably them. All of these to the east of highway. tract west of the the 84-acre highway consist and east of the The acres south principally of unmerchant- woodland, of about 9 acres in improved pasture. The en- 25 acres in timber, able and pas- improved tire farm contains about 120-125acres ture land. an outline of the testimony both following* as to valuations of this before and after
parties property and the taking, damages: ¡ Q Before After For Commission: Taking Taking <x> tfl c3 bf) Boone _$22,000 $15,400 Clarence <x>o o _$21,000 L. $15,000 C. Kirkland o oo For Defendants: $45,125
M. P.
$26,225
Carter _$71,350
$42,000
John Blackledge _$70,000
and
qualified
witnesses
for tlie Commission were
experienced
analysis
a reasoned
gave
appraisers,
hand,
the basis of
their valuations.
the other
On
witnesses
for appellees
experience
had
little
relatively
substan
property
and failed to give
appraisals,
tial
reasons
estimates
support
extremely
high
of the value of this 138
cattle farm before the
acres
or of the
For
taking,
after
damages.
example,
lengthy
reach
cross-examination,
was asked how he
Blackledge
ed
He said: “Due
the loca
figure
tion and type of soil and its
and the
value,
improve
ments,
I
is what
it is worth.”
he
guessed
Both
Carter mentioned the size and the
good soil,
condi
tion of the land
pasture,
location
to towns,
schools and roads and the reduction in size of the farm
as an
operating unit,
difference
a profitable
between
and unprofitable
operation.
the test
the fair market value of the land before and after
not
taking,
does
include the highly speculative
uncertain
profits
may be derived from a business.
v. Rogers,
895 wholly any remaining if we discount in Even valne the 34-acre tract east of the which is cnt off figure from the that in Commission is farm, right way, taking effect that as well as the 20-acre a total of $28,500 54 the verdict of at a rate runs per improved pasture acre for land, $528 with no improvements. structural figures depreciates taking
Carter that the of 54 acres property by original only although % of its valne, appraisal of the total farm is taken. His total 9/23 put per $71,350 valuation on the land of acre $517 per value of acre for the 54 acres taken $828 and affected the condemnation.
Blackledge figured taking depreciated prop- erty by original although about total value, 3/5 only before-taking is taken. His value of 9/23 comprises per acre for the entire farm; $507 per 54 acres affected, taken and acre. $777 gross figures jury’s excessiveness of these and the particularly apparent verdict becomes that no when is noted except whatever are taken, give undescribed fences; and witnesses could comparable support appraisals. no sales to
Appellees’ only argument brief makes an indefinite support of the amount of the verdict. It is that Miss. provides by 31 Constitution Sec. of trial shall remain inviolate. Secs. 144-177 of the judicial power Constitution vest the of the state in this Court and trial courts. It is well established judicial adequacy sup review of the of evidence to port necessary verdict is incident to the of trial by jury. Hood, Williams v. 114 So. 2d (1959); 854 Yazoo and M. Co. Scott, Miss. R. V. (1914); 871, 897, 67 Faulkner v. Middleton, Miss. So. 565 It 365-366, is the duty of this Court to determine whether there is support believable evidence which will reasonable, *6 judicial proper of the case. A exercise verdict in this require incredible. to believe the function does not us testify, competent Appellees’ but be witnesses unsupported extreme, unreasonable, of the and cause analyzed they placed land, as valuations which on probative testimony No. little value. has above, Highway Stubbs, v. de Commission 41,568, Miss. State McDuffie v. Miss. 7, 41,579, No. 1960; cided November Highway 1960. 7, November Commission, decided State record, consideration of this
After
careful
grossly ex
is so
we hold
the verdict of
by
passion
prejudice
and
bias,
cessive as to evince
jury,
High
cannot be affirmed
this Court. State
and
Highway
Rogers, supra;
v.
Miss.
Commission
Ellzey,
Highway
supra;
v.
Miss.
Com
Commission
(1959);
Taylor,
v.
237 Miss.
In for a new trial dam- versed the case is remanded days appellees ages, unless within ten from this date accept reducing $11,000, remittitur of thus award appellees aggregate $17,500; to the sum of event accept judgment affirmed remittitur, such will be modified; is reversed and remanded. otherwise, appellees accept speci- unless
Reversed remanded, fied remittitur. Kyle, Gillespie G.J., Holmes,
McGéhee, and Mc- Elroy, JJ., concur. Dissenting:
Lee, J., course the State Commission had the Of power right way to take the here involved. compensa- of the due But, under Sec. 17 Constitution, up tribunal, tion be must made therefor. set composed damage determine the case, such judge passed jury. juries ques- and a Two on this tion. awarded One *7 ‡32,000 opinions the the difference of witnesses of both damage, landowners, Commission and the as to sowas appear great juries as to almost incredible. The ob- viously rejected litigants. both versions of the How- twenty-four jurors, prop- ever those of viewed the them, erty. jurors course Of are not of infallible, go astray just them all men. showing
I am inclined to think that under the in this record, even the second verdict is somewhat excessive. magician, But I am am not and I not able to devise lay my my I formula under which can figure hand on heart up say, good and come with a I which can in n compensation is conscience, due to these for landowners damage they by the will suffer of reason this seiz- say judg- ure. To the I least cannot it, accede to a holding ment which will have the effect of that the wrong by second at least the $11,000. Under simply I think the circumstances, case should be remand- ed for a new trial. Dissenting: Justice,
AkriNgtoN, disagree. majority opinion deference, With I In the is stated: “To the south and east this non-access separated there are 34 acres which are from remaining place the 84 acres of the to the west of the highway. Although the condemning ac- Commission is rights, permissive cess there would be a user of a via- highway duct under the from the western 84 to the east- permissive ern 34 acres. However, since the is use only, highway the effect of the cut off access to to east its which is bounded on east tract, side Mis- sissippi Hospital looking at at Ellisville. Hence, favorably appellees, the matter most to Commission, condemning cutting to the 34 east of access acres off highway.” any permissive is of value not think that nse
I do suggested it was the trial of this case whatsoever. by In appellant could amend court that counsel for whereupon permissive petition counsel allow use, to we “No, sir, to the court, the Commission stated condemning access.” Thus it he seen can nothing, permissive amounts because use opinion at time. I am of the it could be withdrawn appellees damages in sum were that the entitled of at least $20,000. J., this dissent. Joins
Hall,