164 So. 2d 911 | Miss. | 1964
This is an appeal by the Mississippi State Highway Commission from a judgment of the Circuit Court of Pearl River County rendered in favor of H. H. Pepper for the sum of $97,550’ as compensation and damages for the taking of a strip of land containing 35.92 acres of land to be used for highway right-of-way purposes in the construction of a new interstate highway running through and across the appellee’s land. This highway is a relocation and construction of Mississippi Highway No. 11 and will be known as the New Interstate Highway No. 59, and it is a limited or non-access highway.
A special court of eminent domain was organized according to the law and trial had therein on June 29, 1962, in the courthouse of Pearl River County in the City of Poplarville, Mississippi. Luther M. Smith, Justice of the Peace of District 1 in Pearl River County, Mississippi, was presiding. The jury award of $85,000 was received and entered and the appellant herein took an appeal to the Circuit Court of Pearl River County. This cause came on for trial in the circuit court of said county at the regular March 1963 term thereof, and trial was had on March 25th and 26th, 1963, on a jury verdict of $97,550, and a judgment was entered on March 26, 1963. Thereafter, the appellant filed a motion for a new trial, setting up in said motion substantially the same grounds which are now assigned as errors. The motion for a new trial was overruled by the circuit court, and from which the appellant prosecutes this appeal.
The record shows that the appellee is the owner of approximately 895 acres of land in Pearl River County. This land is located on a public county road approximately two and a half miles southeast of the Villagu of Carriere, where there is located a new school, a post office, a few stores and places of business. The ap
The record shows that the 895 acres of land is located in Secs. 20 and 29, all in T. 5 S., R. 16 "W., of Pearl River County, Mississippi. The application for condemnation of the above-mentioned four-lane strip of land for right-of-way purposes of the new highway was to enter the appellee’s land in the S1/^ of the SW% of Sec. 20, and proceeding southerly through the NE% of the NE14, the Wy2 of the NW%, and the NW% of the SW% of See. 29, T. 5 S., R. 16 W., Pearl River County, Mississippi. The record discloses that the eastern boundary line of New Highway No. 59 extends through the appellee’s property a distance of 5,333 feet. This extends from the south end to the north end on the east side, which is the longest side of the highway going through appellee’s property. The western side of the fourlane highway, extending from the south to the north, extends a distance of 4,562.4 feet. Therefore, the eastern boundary line of the appellant’s highway is more than a mile in length, while extending through appellee’s property. This property of the appellee does not front on any main or hard surfaced roads but does have a small amount of frontage on a gravel road over the east side, where a portion of the property projects out to the east of the road. The record discloses that the appellee owned a valuable
The record discloses that prior to the time the highway came through appellee’s land, that of the 895 acres, 445 were in tung trees; that the average age of these trees was ten to fifteen years; that he had what he considered a perpetual growth because as old trees died or were injured by lightning or otherwise, he would replace them. The average bearing time for trees is about twenty years. The tung trees were of three types, L-2’s, 51 ’s and 47’s. The ground was highly cultivated and fertilized before the selective trees were put out, and they were planted approximately a hundred to a hundred and twenty-five trees per acre. A hundred to a hundred and twenty-five trees seems to be the maximum for productivity on land such as the appellee has. The soil of this land was the Orangeburg and Huston type. It had good drainage facilities and was the best type for growing tung trees and for pastureland. The appellee’s entire place was fenced with a net wire, topped with barbed wire on the outside, and with barbed wire cross-fences. The appellee had constructed service roads throughout his farm in such a manner that all parts were easily accessible from the remainder thereof. These roads were built for the purpose of moving cattle, and for collecting- nuts from the tung trees and moving them by wagons as quickly and as expediently as possible, so as not to interfere with the cattle-grazing operations. The record shows that he had approximately five hundred head of cattle grazing on this land and of the 895 acres, 365 were in improved pasture of red clover, white clover and bahia. The record discloses that the appellee had had his entire farm analyzed insofar as the chemical make-up of the soil was concerned and, from his own personal experience of over thirty-seven years of ac
Of the 895 acres of land, 85 acres were in timberland, which consisted of pine and hardwood, the hardwood being mostly gum and poplar, all of which appellee testified was merchantable.
On the 365 acres in improved pasture was a dwelling house which consisted of three bedrooms, one of which was 16’ x 16’, and the other two were 14’ x 14’, each having a big closet; there was a hall, a bath and a partial bath, utility room, living room with fireplace, Idtchen and dining room. There was a breezeway, and a porte cochere with storage space. There was an attic fan, electricity, and gas heaters to supplement the fireplace in this house. The house was approximately three years old. It is located on the extreme, middle, southeast portion of appellee’s land. The highway appears to divide appellee’s land into two parts, two-thirds of which lies east of Highway 59 and one-third to the west, north and northwest. In addition to the house, appellee has on his land one barn 24’ x 150’ which is an equipment bam, a second barn 40’ x 80’ with a drop shed 20’ x 80’, and a third barn 40’ x 60’, and a fourth barn 40’ x 35’. There were seven stock ponds on appellee’s land, all of which will be cut off from the one-third western and northwestern part by the construction of Highway No. 59. There were net wire fences outside and principally barbed wire cross-fences. There were service roads, which were constructed so that heavy trailers could be used over them in order to haul the tung nuts; and the cross-fencing was put in in order that the property could be handled most economically from the standpoint of cattle, and in connection with the collecting of the tung nuts or the handling of the tung trees. There were pens
The record discloses that the highway will separate on the west side thereof 252.71 acres, 174.71 acres being in tnng trees, 15 acres in improved pastnreland, and 63 acres in timberland. The record discloses that 252 acres of this land will be landlocked, in that it will not be possible for the appellee to go upon it because of limited access Interstate Highway No. 59. It appears that in order to get to this land the appellee will have to travel over a circuitous route of county roads, and he does not have any roads going into the portion of his land west of Interstate Highway No. 59, which enters it from the west or the north side. It appears, therefore, that these roads of necessity will have to be constructed if the appellee is to utilize any of this land located west of the Interstate Highway No. 59. Highway No. 59 separates 606.84 acres to the east, which is composed of 344 acres in improved pasture, 240.84 acres in tung trees, and in the improved pasture ape the stock ponds, the local plantation roads and 22 acres of timberland. This 606.84 acres is left on the east side of the road which is accessible to the appellee and over which his plantation roads extent and which he can still use. It appears that new fences will have to be built, as well as cross-fences and stock pens. It appears that his two main ponds will be injured or destroyed by the building of the new highway. The total number of acres being taken by the highway, including the easement, is 35.92 acres. The dwelling house and the other improvements were used by the overseer or manager who lived on the farm and managed the farm for the appellee.
After the jury verdict of $97,550 was received and entered and after a judgment had been entered thereon, appellant filed a motion for a new trial, alleging its grounds therefor (1) that the verdict of the jury is excessive and not based on credible evidence; (2) that
From the judgment and order overruling the motion for a new trial, the appellant prosecutes this appeal and assigns as error the action of the trial judge in overruling its motion for a new trial and also other errors which will be considered later in this opinion. As laconically as possible, we will outline the pertinent parts of the testimony offered by petitioner-appellant and by the defendant-appellee.
J. W. Morgan was the next witness offered by appellant. He is a professional appraiser employed by the Commission, who testified that he is a graduate of Mississippi State College in Agricultural Education, and had taught agriculture for about eight years. He had had two special courses in appraising real estate. He owned and operated a farm at Moselle in Jones County, which is located about twelve miles north of Hattiesburg and about eighty miles from appellee’s property. Morgan testified that he had made appraisals of real estate in Pearl River County. In his opinion, the fair market value of appellee’s property before June 29, 1962, the date of the tailing, was $316,000; that after the taking, $288,000; that his estimate of the damages was $28,000. Morgan testified that approximately 252 acres would be left on the west side of the right-of-way and 607 acres on the east side thereof. It was this witness who introduced petitioner’s Exhibit 2 which accurately describes or illustrates the right-of-way of appellant through appellee’s lands and the various portions thereof which are divided thereby. The appellant endeavored to prove by this witness that he based his before-and-after taking value and the damages resulting from the location of the right-of-way from the recent sales of comparable property. The lower court, however, declined to let the appellant or the appellee show on direct testimony any values testified to by the witnesses which were based upon the sales of comparable property. The lower court did permit this to be brought out on cross-examination, but not on direct examination in chief. The lower court refused to let the petitioner, through Mr. Morgan, introduce an aerial photograph. This was introduced in the testimony of the case of State Highway Department v. W. R. Roche but is introduced here for identification only. Roche’s property is located immedi
Charles B. Moore was the second witness to testify for the State Highway Commission concerning the value of the land before and after the taking. He is an employee of the Commission, and had been for two and a half years. Moore testified that he was a licensed real estate broker, that he had been with P. A. Anderson appraising and buying farm property for the International Paper Company and the Mississippi Power &
F. L. Albogast, the third witness introduced by the appellant, testified that he lived about four miles west of Carriere, where he owned a farm containing approximately 230 acres, which was used for raising cattle and tung nuts. He had owned the place since 1943; he was a licensed real estate broker, and had been engaged in the real estate business since 1954. He stated that he had appraised property for the Veterans Administration, the F. H. A., the Mississippi Savings & Loan Association, of which he was the manager, and other agencies. He had also made appraisals for landowners for condemnation purposes. He stated that in his opinion the value of appellee Pepper’s property before-the-taking was $338,830; after-taking $308,220; and that the damages amounted to $30,610. He was asked, in substance, whether or not in making his appraisal of the appellee’s property, he investigated sales that had been made recently of other property comparable to the appellee’s property and in the vicinity thereof. He replied that he had considered tracts, and named Harrison Penton’s tract which was sold to Charles F. White; the Pigott tract which was sold to Sam Dyer in March 1961. In January 1962, Clarence Shaw, et ux., sold to C. W. Harwell approximately 1,000 acres for $115,000. This property is located thirteen miles northeast of Picayune and lies on a paved blacktop road, and most of it is in tung grove. This witness admitted that Exhibit 2 introduced by the appellant was not correct in certain particulars. This witness also stated that he started out comparing land which was comparable in topography, size and location with 80-acre tracts and finished up with a 1,000-aere tract, — the 80-acre tract, the 200-acre tract and the 1,000-acre tract of comparable properties
Carl Cooper was the fourth witness to testify for the appellant. He testified that he was a licensed real estate broker, that he operated in Pearl River and Hancock Counties, that he held a BS degree from Mississippi Southern; that he had training under the Houston Chapter of the American Institute of Real Estate Appraisers at Rice University; that he had made appraisals of real estate for insurance and oil companies and other clients, including owners of land through which interstate highways ran. He stated that his estimates of the value of the Pepper property before-the-taking of the strip of land for the highway right-of-way was $319,000; after-the-taking $286,200; that his estimate of the damage was $32,800. Cooper testified further that when he made his appraisal of the property he took into consideration recent sales of comparable property in that area, including the sale of the Benton Pigott place, containing approximately 200 acres, which had been sold to Sam Dyer in March 1961 for $42,000; and the property known as the Harrison Penton place, containing 87 acres, which he had sold recently for $22,500, including the growing tung crop and equipment. The Harrison Penton place was located in proximity to appellee’s land, but fronted on a blacktop road and was closer to Carriere. There were tung trees on about 45 acres of land. This witness admitted that appellee’s place was one of the best, and one of the best-managed that he knew, and that he had taken that into consideration in making his appraisal. He testified though that he had managed a tung oil farm, that all of his experience had been obtained with the experiment station where he had worked at the Pearl River Junior College, as a student when he was working his way through college. This witness admitted that appellee’s trees wére
After placing Civil Engineer Dan Hillman upon the stand, who testified that except for the clearing of the right-of-way and the moving of the trees, that the land was exactly the same as it was prior to the time the Highway Commission entered upon the land, the appellant rested.
Appellee Pepper then testified in his behalf that he lived in Picayune; he had lived in Pearl River County for thirty-seven years; he was a graduate of Mississippi A. & M.; and he held a degree in Agricultural Horticulture. His lifework had been the study of fruits, vegetables and nut crops; he was a specialist in agriculture and had been engaged in it since he had been in Pearl River County; he planted the first nursery in Pearl River County and had managed 40,000 acres of tung nuts for ten to fifteen years; and he had been on the Crosby payroll and took care of groves for different
The first witness to testify in behalf of the appellee, insofar as. the value of the land before-and-after-taking, was O. H. (Ott) Davis. Davis. testified that he lived nine miles southeast of Lumberton in the northeastern part of Pearl River County, he is- a graduate of the Mississippi State College, with a BS degree. He had had considerable experience in appraising property in Pearl River County for the Farmers’ Home Administration. He worked for the Forestry Commission at one time,
C. E. Barefoot, the next witness offered by appellee, testified that he lives in Pearl River County, that he had served as a High School Superintendent, taught four years in Mississippi Southern College and Pearl River Junior College; that he had served with the Vocational Rehabilitation Division of the State Department of Education for eighteen years, lacking four months; that he was a licensed real estate salesman and had been engaged in the real estate business since January 1962; he had appraised farm and business properties and investigated the sale price of lands all over Pearl River County. He stated that he had appraised the Pepper property on June 16, 1962, and in his opinion the value of the Pepper property prior to the taking
The third witness who testified for the appellee was Ferris E. Tate, and he said he was a lifetime resident of Picayune, and had been engaged in the real estate business for thirty-five years, maintained a real estate office in the name of Tate Realty Company, had his home in Picayune; he had made appraisals of various properties all over the county, and had made appraisals in connection with the taking of rights-of-way for Interstate Highway No. 59. He stated he was familiar with the market price of lands all over the county. He stated that he had inspected the H. H. Pepper land prior to June 29, 1961, and that he had made two or three inspections since the time of the taking. He estimated the value of the appellee’s property before-the-taking to be $445,621.50; and after-the-taking* $332,867; and the damages he estimated to be $122,754. On redirect examination, this witness stated that he had two tracts referred to him as land which had been sold for $1,000 per acre, one of which was a two and one-half-acre lot sold by J. C. Ford to the Central Service & Supply Company for $2,500 on March 23, 1962, and a three-acre lot which was sold by J. S. Lumberton to Carl Carson on July 7, 1962, for $3,000'. He also mentioned the sale of a two-and-one-half-acre lot by Max Mitchell for $3,500, but on cross-examination it developed that there was a dwelling house on that lot at the time Mitchell bought it, and it could be made into a small farm. Tate stated that he had gone over the Benton Pigott place but made no inspection of the Pigott home; and he did not consider the sale of their property when he made his appraisal of the Pepper property; and the Mitchell place sold for $800 to $900 per acre. This wit
The last witness to testify on behalf of the appellee was E. F. Loe. This witness testified he graduated from Louisiana State University with a forestry degree- in 1938. He has lived in Picayune for 17 years and that he was operating a real estate business under the name of Ford and Loe Bealty Company. Witness Loe stated that he made an appraisal of the H. H. Pepper property for the owners before June 29, 1962. He stated that he had sold approximately a million
The instructions granted to both the appellant and appellee correctly state the law under the facts of the case at bar. The jury brought in as aforesaid, a verdict of $97,550, judgment was entered and thereon and appeal tallen therefrom. Appellant’s attorneys have assigned and argued two main points as grounds for reversal of the judgment of the lower court. These grounds are (1) that there is no credible evidence in the record to support the verdict of the jury; and (2) that the verdict of the jury was so grossly excessive as to denote bias and prejudice and as to shock the enlightened conscience of the court. These errors we will consider. It is also urged that four witnesses for the appellee, upon whose testimony the verdict appears to some degree to have been based, by their testimony established the fact that they were not qualified to express a competent opinion as to the before-and-after-taking of the appellee’s property, or the amount of damages which should be awarded to the appellee, whose land was being taken for public use. The other errors which also have been assigned and argued as grounds for reversal of judgment, and which relate to the admissibility or exclusion
We are convinced that the verdict of the jury is grossly excessive, in fact so excessive as to require a reversal of the judgment. We list below the names of the witnesses who testified for the appellant with the valuation of appellee’s land before-and-after-the-taldng, and also the resultant damages. Below this digest we list a similar one for the appellee, and for the appellee’s witnesses.
It is astonishing to note the vast gulfs of difference between the respective appraisals of appellant’s and appellee’s witnesses. It is incomprehensible that reasonable men, who are unbiased and qualified to make impartial appraisals can objectively be as far apart in their deliberate conclusions as is reflected in this schedule. There is a strange uniformity of irreconcilable disparity in values evidenced by the estimates made by these two groups of appraisers. The great difference between the values and damages estimated by the appellee and his witnesses alone is persuasive that the testimony relating to the appraisals is lacking in probative value to justify the verdict of $97,550.00. On the other hand, the negligible differences in value and
There was only one witness for the appellee who testified thg,t the appellee’s damages was not in excess of $102,324.00. This was witness O. A. Davis who admitted that he lived nine miles southeast of Lumberton, which is approximately twenty-five miles from the property. Witness Barefoot, another resident of Lumberton, like. Davis, testified that he did not compare the values of any sales of comparable property, because no comparable property could be found. Admitting that it was true that some property had been sold, and admitting that the southeast corner of the Benton Pigott place joined the northeast corner of the appellee’s place, still this witness failed to see any comparable qualities whatsoever. Although the Berringer 300-acre place was but approximately a half-mile northwest of the appellee’s land in question, and was purchased by the appellee for $20,000, still this witness did not consider this sale in arriving at his estimated values and damage. He refused to consider the C. P. White place located about a quarter of a mile north of the appellee’s land because it was not comparable. He ultimately conceded that after the sale of the Benton Pigott place he inspected it and it could not be compared with the appellee’s land. It was this witness who attempted to explain the difference
The testimony of appellee’s two other witnesses as to values and damages, Ferris E. Tate and E. F. Loe, clearly indicate that the sale of like property in the immediate vicinity of the appellee’s land had very little if any bearing on their appraisals. Ferris E. Tate, who was a strong witness for the appellee, admitted that he did not consider the sale of the Benton Pigott property which joins the appellee’s property in determining his values of and damage to the appellee’s land. He did not feel that the Mitchell place, and the Berringer place, which were in the vicinity of appellee’s land could or should be considered as comparable sales. .As a matter of fact none of appellee’s witnesses could refer to a comparable sale to support and substantiate their appraisals. The testimony of Tate and E. F. Loe concerning the sale by Spencer Lumpkin to Carl Carson of a three-acre building lot fronting on a blacktop highway about two miles east of Carriere for the sum of $3,000, and the sale of a two-and-one-half-acre lot situated in the Village of Carriere by J. C. Ford to Central Service and Supply for $2,500 affords no basis for a valuation of farm property devoted to the growing of tung nuts, pecans and pasturing cattle.
The factual differences between this case and the case of Mississippi Highway Commission v. Brooks, 239 Miss. 308, 123 So. 2d 423, cited in appellee’s brief are plainly obvious. In the Brooks case, the 27 acres owned by Brooks was just outside of the corporate limits of the City of Hattiesburg, a metropolis of approximately 34,000 people. The land was located in an area very adaptable for residential development. The proof clearly indicated that the land would probably be used in a reasonable time for that purpose. That is not so in the case at bar. The 895 acres of the appellee is
The testimony of O. A. Davis, C. C. Barefoot, Tate and Loe as to the value of appellee’s property before- and-after-the-taking of the 35.92 acres for highway purposes when considered together with the undisputed facts disclosed by the record was not sufficient to justify the verdict of $97,550.00.
The testimony discloses that the appellee’s land is excellent for growing tung nuts and for grazing cattle, but only 35.92 acres are taken for highway purposes. It is true that the land has been severed into two parts by the construction of the Interstate Highway, and it is also true that the appellee will not have access to the 252.71 acres on the west side over the highway from the east side, hut this does not mean that he cannot obtain a right-of-way or road into the segment west of the highway. Mississippi has laws of necessity relating to circumstances such as this. There will be an expense entailed to the appellee, but he has not yet permanently lost the use of his land west of the highway if he desires, as he says he does, to use this valuable tract. The jury evidently thought he had completely and irretrivably lost this land.
In view of the foregoing, we hold the verdict of $97,550.00 is so grossly excessive as to evince bias and prejudice on the part of the jury, and the judgment cannot he affirmed by this Court. Miss. State Highway Commission v. Roche, No. 43,060, not yet reported, and the following cases cited therein: Miss. State Highway Commission v. Rogers, 236 Miss. 800, 112 So. 2d 250; Miss. State Highway Commission v. Ellzey, 237 Miss.
The judgment of the circuit court is therefore reversed and the case is remanded for a new trial on damages only. However, if within fifteen days from the date this judgment becomes final, the appellee accepts a remittitur of $32,555.00, the judgment will be affirmed as modified; if the appellee does not do so, this case is reversed and remanded.
Reversed and remanded unless the appellee accepts the specified remittitur.