Sullivan v. Board of Supervisors

61 Miss. 271 | Miss. | 1883

Chalmers, J.,

delivered the opinion of the court.

When this case was heretofore in this court we decided that no ownership of a public ferry could exist in this State save by legislative grant, and that in this particular case the appellant was by his conduct estopped to claim ownership of the free bridge erected on his land. Of the correctness of the conclusions reached, both as to the question of fact and of law, we remain entirely satisfied, nor was any substantial change in the aspect of the question of fact made by the newly offered testimony upon the subsequent trial in the court below. After the case was remanded to the lower court, a jury of review appointed by the court returned a verdict assessing Ml. Sullivan’s damages at one thousand seven hundred and fifty dollars, which was by the board of supervisors set aside. The causes assigned in the motion made for setting aside the verdict were sufficient if they had been supported by proof, but none was offered, the board seeming to have received as proof the assurances of the counsel making the motion that the facts alleged in it were true within his own knowledge, and the failure of appellant’s counsel to deny their truth, though challenged to do so. These assertions were made in oral argument, and not under oath, and appellant, in whose favor the verdict had been rendered, was not called upon to deny them until some evidence had been adduced of their truth. Appellant insists that on account of this error we are bound, not only to reverse the verdict against him, rendered by a subsequent jury, but also to re-establish the former verdict in his favor. "We do not think so. Proceedings before boards of supervisors, though in many respects they must conform to those before other judicial tribunals, should not be tested by standards too rigid. These boards are legislative as well as judicial bodies, and, consequently, are in constant danger of blending the respective methods of their dual functions. The written motion in this case set forth that the verdict was grossly ■ excessive, a result which had been produced, as alleged, by the introduction of improper and illegal testimony, and by arguments addressed to the jury in the absence of any court, which were wholly improper, and which invited the jury to disregard the former decision of this court, defining the rights of the parties, and indicating the measure of damages to which appellant was entitled. These things occurred (if at all) before a jury in the -woods, in the presence of no officer save the sheriff, who was without judicial functions. Appellant was challenged to deny these facts, but remained silent; and while we think that the board should have demanded some proof of them, we think that justice will be accomplished by now affording opportunity to investigate them; and for this purpose we remand the case, in order that the board may fully investigate the question whether that verdict was really excessive or not. In other courts a verdict is complete in itself, and a judgment follows as a matter of law, but a verdict in proceedings before boards of supervisors is not complete' until approved by the board. In estimating the damages to which appellant is legally entitled, we desire to add one thing only to what was said in the former opinion in this case. Sullivan adduced proof that by reason of the conformation of his own lands and of the banks of the river for many miles up and down the stream, it would cost the county two thousand five hundred or three thousand dollars less to build the bridge on his land than at any other point, and claims that he is entitled to have this fact taken in consideration by the jury in estimating his damages. This claim is not maintainable: He is entitled to his own losses — not 'to the county’s gains. He obtains everything he is entitled to when he is made whole, and has no concern with the question of how much the county has gained. The measure of his damages is filled when he gets the difference between the value of his property before the appropriation and after the appropriation — charging, however, nothing against him by reason of the enhanced value of his land arising from the erection made. A man who owns a narrow pass between two mountains cannot estimate his damage when it is taken for a road by the cost of tunneling one of the mountains or of surmounting the other. He is entitled to the actual value of the pass • to him for any purpose to which it may or can be applied by him, or is worth in the market for any purpose, and to all damages occurring to his surrounding lands by the construction of the road, and to nothing more. How much it may be worth to the public to build the road there is a question with which he has nothing to do. In the present case Sullivan is entitled to the value o'f his land taken, in so far as it has a value for any use or purpose to which he can apply or sell it, and to the damage to the balance of his land by reason of the taking, and to no more. This was substantially the instructions given to the jury last appointed, and there was no error in so instructing them, Boom Co. v. Patterson, 98 U. S. 403 ; Virginia R. R. v. Elliott, 5 Nevada 358; Black River R. R. Co. v. Barnard, 16 Sup. Ct. R. (9 Hun.) 104.

Reversed and remanded with instruetions to the board of supervisors to determine, after proof taken on the basis indicated, whether the verdict for one thousand seven hundred and fifty dollars was excessive, and if the same is set aside, to appoint a new ju/ry with proper instructions.