Warren County v. Rand

| Miss. | Apr 15, 1906

Whitfield, O. J.,

delivered the opinion of the court.

The first instruction given for the plaintiff is not, we think, fairly open to criticism. That instruction is as follows: “The court instructs the jury that private property, cannot be damaged for public u'se, except on duo compensation being first made to the owner or owners thereof.” If it were the only instruction given there would be more reason for saying that the criticism was not hypercritical. But there were three other charges given for the plaintiff, and the instructions should be taken as a whole. The learned counsel for appellant is entirely correct as to the true test as to the amount of damages in a case like this. But „we think the third instruction given the plaintiff fully meets this test. This instruction is in®the words following: “The court instructs the jury that, if they should find for the plaintiffs, then they should assess their damages at such sum as the evidence in the case shows to be the difference in the market value of the • property before the cut in plaintiff’s property was made and the market value of the property immediately after the cut was made; and in arriving at the market value the jury may consider the situation of the property, the uses to which it was put and adapted, the location of the property as a residence and business point, the fact that changes have to be made by reason of said cut, if any have to be made, the extent and effect of those changes, and the accessibility of the property both before and after the cut.” And the latter part of the instruction is entirely proper in view of our decisions.

Besides which, the first instruction given for the defendant states precisely the same test, and we cannot think that that part of the instruction criticized — the last sentence — could possibly have misled the jury. The instruction for defendant is as follows : “The true test for the jury to be governed by is the value of the property before and after the grading; and if the jury believe from the evidence that the property was worth as much immediately after the grading as it was immediately before the work was done, then the jury must find for the defendant. In arriving at the value of the property after the grading, however, the jury are not to consider such benefits as may have accrued to the plaintiffs in common with the general public by reason of the work done on .the road, but can only consider such special benefits, if any, as may have accrued to the plaintiffs’ property.”

The objections made to the evidence are not tenable.'

Affirmed.