Schlicht v. Clark, 75 So. 130

Schlicht v. Clark

75 So. 130 | Miss. | 1917

Ethridge, J.,

delivered the opinion of the court.

D. E. Clark and others, drainage commissioners, filed a petition to condemn a strip of land through the plantation of the appellant under the Code chapter on “Drainage,” for the construction of a drainage canal. *361The canal would extend for about two miles through the said plantation and varied in width from twenty to twenty-four feet at the surface and to a width of ten feet at the base of the canal, with a depth approximately of ten feet. In the eminent domain court the appellant was awarded six hundred dollars for the strip taken and his damages, and appealed to the circuit court, where the matter was tried anew, and a judgment rendered for eight hundred and thirty-three dollars and sixty-four cents, from which judgment appellant appeals here.

The evidence ©f the value of the land taken varied from the sum of five dollars per acre to fifty dollars per acre, and there were approximately fifteen acres taken. There was testimony showing that the plantation would not be damaged at all outside of the strip taken, and there was testimony that it would he damaged varying in amounts to as high as three dollars per acre damage to the plantation, in addition to the strip so taken. There was evidence that the canal would have to be bridged and considerable evidence on the cost necessary for constructing bridges, the estimates for bridges varying from ninety dollars for the three bridges to one thoxisand eight hundred dollars for the three bridges. Schlicht offered proof that he would have to fence the canal on either side for two miles to keep his cattle from falling into the ditch, which proof was on objection excluded hv the court below and' is complained of here. The court gave the statutory instruction as to the dawage to he awarded, and also gave the defendant an instruction to the effect that in finding the actual cash ‘value of the land taken that the jury would not be guided by the price for which the identical strip sixty feet wide can he sold on the open market without reference to the adjoining parts of the tract, but that its cash value in open market as an integral part of the whole tract should he taken. The defendant requested *362an instruction in the following language, which was refused :

“The court instructs the jury for the defendant if they believe from the evidence in the case that the construction of the canal through the land of the defendant would require said defendant to build fences on each or either side of said canal and construct a bridge or bridges over the same in order to use the land through which the canal is laid out, as he has done prior to the digging of the same, then they will, in estimating the damage due the defendant, take into consideration the value, or cost, of constructing the necessary fences along said canal, and the bridge or bridges over said canal.”

This refused instruction and the excluded evidence as to the necessity of a fence along the ditch is presented for consideration as error in this’ case. It was proper for the court to exclude the evidence that it would be necessary to build a fence along either bank of the canal for the purpose of keeping cattle from falling into the ditch. This is too remote to be considered as an element of damage, and it does not appear that there could be any more necessity for a fence with the ditch than there would be if there were no ditch present. In reference to the refused instruction, we think it was properly refused. It embodies the cost of building this fence, and also a consideration of the cost of the construction of the bridges over this canal, and as drafted the instruction is erroneous and misleading.

We think the true rule of estimating damages in cases of this kind is laid down in City v. Higgins, 81 Miss. 376, 33 So. 1, and is the difference in the market value of the property with the improvement and that without it, without considering general benefits 'or injuries shared by the public in general. See, also, note to O’Brien v. Philadelphia, 30 Am. St. Rep. 840; Warren County v. Rand, 88 Miss. 395, 40 So. 481; Miss. Digest (Bobbs-Merrill) title “Eminent Domain,” sections 122 to 144, inclusive. See, also, 5 Enc. Ev. p. 204, title, *363“Eminent Domain,” where the rule is stated as follows:

“Specific Elements of Compensation. — Evidence'as to the particulars or details in which the property will be damaged or benefited by the improvement is admissible so far as the same tends to show the effect of the improvement on the value of the property, but these elements are not admissible as independent items of damage or benefit.”

The rule is not different in drainage districts than from other cases of proceedings under eminent domain. We find no reversible error, and the case is affirmed.

Affirmed.