Opinion
October 25, 1948.
1. Eminent domain — damages.
In eminent domain proceedings the measure of damages to the property not actually taken is the difference between the fair market value of such property before as compared to such value after the taking.
2. Eminent domain — damages.
There may be exceptional conditions where the rule of the before and after market value would not be a proper measure in which cases the court will apply a rule supported by reason, logic and common sense designed to result so far as may be humanly possible in the ascertainment of the true, accurate damage the property owner has suffered.
3. Property damages for public use — costs to restore admissible.
Where the grade of the highway abutting a gasoline service station has been raised approximately two feet rendering the station inaccessible, the cost of raising the level of the station to that of the highway is not the measure of the damages, but such cost is admissible in evidence as bearing upon the accuracy or inaccuracy of the estimates by other evidence of the market value under the before and after rule.
4. Property damages for public use — burden of proof.
Where the property is not taken for public use but is damaged, on account of such use, the burden is upon the property owner to show legal damage and the extent thereof.
5. Appeal — when no reversal to make further proof.
Where during the trial the plaintiff is repeatedly advised and warned by timely objections to evidence that he is not pursuing proper course of proof as to the measure of damages but persists, nevertheless, he will not be awarded a reversal to enable him to take the proper course on a new trial.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Lowndes County; J.E. CARRADINE, J.
John F. Frierson, and Sams Jolly, for appellant.
Even if it should be said that the measure of damages in this case is the difference between the market value before and after the taking or damaging of the property, there is an accurate guide to what that difference is in the uncontroverted testimony of the appellant as to the amount of the expenditures made by him and the amount of the sales price of the parcels of land including that here in question. However, in our opinion, this injury could be regarded as temporary, due to the fact that steps could be taken to put this property back in the same or a comparable position with reference to the road as it had occupied before the change in grade, in which case the law is that: "the measure of damages may be, or should include, the cost of restoration, as where the injury is susceptible of remedy, at a moderate expense and the cost of restoration may be shown with reasonable certainty, or where the cost of restoration is less than the diminution in the value of the property. This is particularly true where the adoption of the difference in value as the measure of damages would be difficult and uncertain, or where the injury is not so much to the land itself as to improvements thereon. The recovery is limited to the cost of restoring the premises to their original condition and not to that of placing them in better condition than they were in originally." Vol. 25, C.J.S., Sec. 84, page 604. Note 86 on Page 604, Vol. 25 of C.J.S. cites the case of Chesapeake O. Ry. Co. v. Childers, 283 S.W. 113, 214, Ky. 361 as holding that: "Where recovery is sought for a temporary injury to realty evidence of the value of the property immediately before and after the injury is incompetent, the measure of damages being the cost of repairs."
The lower court was in error in overruling appellant's motion for a peremptory instruction. Article 3, Section 17, Mississippi Constitution of 1890 provides: "Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and as such, determined without regard to legislative assertion that the use is public."
The Supreme Court of the State of Mississippi has often passed upon the question of damages occurring to a property owner by virtue of the grade of an adjacent street or road being altered. See the following cases to-wit: City of Vicksburg v. Herman, 16 So. 434, 72 Miss. 211; Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162; White's Garage v. Poplarville, 153 Miss. 683, 121 So. 295; Funderburk v. City of Columbus, 117 Miss. 173, 78 So. 1; Robinson v. Vicksburg, 99 Miss. 439, 54 So. 858; Tishimingo County v. McConville, 139 Miss. 589, 104 So. 452; Yazoo Miss. Valley R.R. Co. v. Lefoldt, 87 Miss. 317, 39 So. 459; Murphy v. City of Meridian, 60 So. 48, 103 Miss. 110; City of Jackson v. Williams, 46 So. 551, 92 Miss. 301; Merrin v. DeSoto County, 70 So. 348, 110 Miss. 254; Graham v. Covington County, 70 So. 825, 110 Miss. 235; Slaughter v. Meridian Light Ry. Co., 48 So. 6, 95 Miss. 251.
Special attention is called to a recent decision of this Court on this question in the case of City of Water Valley v. Poteete, 33 So.2d 794.
Prior to the adoption of the Mississippi Constitution of 1890, a property owner was only compensated for his property "actually taken." The words "or damaged" were included in the Constitution of 1890 and our courts have often passed on the proposition of altering the grade of a street or road as an element of damages. The Supreme Court of Mississippi in a decision October 29, 1894, construed this constitutional provision in the case of City of Vicksburg v. Herman, supra, and this decision has been upheld many times.
In the Herman case the grade of a street was materially lowered and the property owner was awarded $2,000.00 as damages and the judgment was affirmed by the Supreme Court. This case furnishes the best discussion of the subject which we have found. The Herman case was approved by the court in the case of Parker v. Highway Commission, supra. The court in this case held that the Commission is subject to a suit for damages for altering the grade of a street or road adjacent to an owner's property. The court cited the Herman case and said, "This case has been approved by this court a number of times," citing the following cases: Ham v. Board Levee Commissioners, 83 Miss. 534, 35 So. 943; Yazoo Miss. Valley R.R. Co. v. Lefoldt, 87 Miss. 317, 39 So. 459; King v. Vicksburg Ry. Light Co., 88 Miss. 456, 42 So. 204; City of Jackson v. Williams, 92 Miss. 301, 46 So. 551; Tishimingo County v. McConville, 139 Miss. 589, 104 So. 452; White's Garage v. Town of Poplarville, 153 Miss. 683, 121 So. 295.
Special attention is called to the case of Murphy v. City of Meridian, 60 So. 48, 103 Miss. 110, for statement as to property owner raising level of property to new level of street. In the case under consideration appellant takes the position that his property was actually damaged in the amount of $7,533.10, which included the sum of $4,533.10 actually expended and the $3,000.00 loss suffered when he sold said property because other needed work had not been completed. There can be no question but that the actions of the defendant in raising the level of the road actually caused this loss to appellant, and the $1,225.00 rental loss.
In the case of Merrin v. DeSoto County, 70 So. 348, 110 Miss. 254, the plaintiff sued the county for damages, alleging that the road had been lowered to such a depth that it was necessary for him to construct a new approach from the highway to his residence. The county defended on the ground that the plaintiff was benefitted by the construction of the road more than he was damaged since his property was enhanced in value. The jury returned a verdict for the county and plaintiff appealed. The Supreme Court reversed the case and said that plaintiff should have been awarded a peremptory instruction telling the jury that they should allow the plaintiff such sum as would be necessary to reconstruct the roadway leading from the public highway into plaintiff's premises.
In the syllabus by the court we find the following: (1) "Where the alteration of a public road abutting on plaintiff's premises made it necessary for plaintiff to reconstruct a roadway leading from the public highway into his premises, he was entitled to recover a sum necessary to reconstruct such roadway, if nothing else."
(2) "Where the alterations of a public road made it necessary for an abutting owner to reconstruct a roadway leading from the public road into his premises and benefits to him from the improvement of the highway were such benefits as were received by the general public and no more, they could not be set off against his damages."
Appellant submits that in the case at bar all the repairs and renovations which he was compelled to make, were necessary to place his property in a usable condition with reference to the new level of the highway. Appellant introduced disinterested witnesses who testified that all the improvements which he made were necessary for the continued operation of his business and the testimony of these witnesses was not refuted by the defendant. We submit that it was just as necessary for the appellant, in the case at bar, to make all the alterations and improvements shown by the proof, as it was for the plaintiff to construct the roadway in the Merrin case.
The appellant submits that he was entitled to a peremptory instruction as to liability and the jury should have been directed to return a verdict for appellant for the sum of $7,533.10.
John M. Kuykendall, Jr., Assistant Attorney General, for appellees.
Instead of introducing evidence of the market value of the property of the plaintiff before and after the construction of the highway, a mass of figures, statements and estimates regarding the cost of raising the level of the entire lot and all buildings thereon were hurled at the jury by the plaintiff. When this evidence was admitted over the objection of the defendant the only alternative was to question whether each expenditure or proposed expenditure was actually necessitated as a result of the grade of this highway being raised and this the defendant did by cross-examination and testimony of defendant's witnesses.
The measure of damages in a suit whereby plaintiff claims damages as a result of a change in grade of a public highway or street is the same as that in any other suit under the constitutional provision regarding the taking or damaging of private property for public use. As pointed out in Jackson v. Williams, 92 Miss. 301, 46 So. 551 ". . . the true rule for the measure of damages is to be found in the case of Meridian v. Higgins, 81 Miss. 377, 33 So. 1." In the Higgins case the Mississippi Supreme Court adopted the ruling of a Pennsylvania Court regarding change of grade and announced the measure of damages as follows: "The difference in the market value of the property with the improvement and that without it, not considering general benefits or injuries shared by the public in general."
Without here tracing the adherence of our court to this rule in this type of case over the years intervening we can safely say that it is still the law today and has been applied by our supreme court in the grade change cases in which the Highway Commission was a party. The fact that the public authorities have raised or lowered the grade of a highway does not of itself constitute this type of action, it is the damaging of private property as a result of the raising or lowering of same which constitutes the action. The property right nearly always involved, and the only property right which appears to be involved here, is the right of ingress and egress of the property owner to and from his property and the public highway. In Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162, the Highway Commission was held subject to suits of this nature, and the words "or damaged" in Section 17 of the Mississippi Constitution were clearly defined and their origin explained. In Smith et ux. v. Mississippi State Highway Commission, 183 Miss. 741, 184 So. 814, the court added, "the diminution of the value of abutting property by interference with ingress to and from it is damage within the meaning of the constitution."
Plaintiff's contention that he was entitled by law to what he claimed to be the cost of raising the level of the entire lot and all buildings thereon is not supported by any authority. Instead, our court has definitely decided to the contrary as reflected by the case of State Highway Commission v. Corley et al., 186 Miss. 437, 191 So. 119. In that case it was decided that the raising of the grade of the highway resulting in stoppage of drainage on a gravel sidewalk on the highway right-of-way in front of plaintiff's property, difficult accessibility to the abutting property, and reduction of the market value of the abutting property were proper elements of damages, but that the cost of restoration of the sidewalk and remedying its drainage problem was not the proper measure of damages. It was there held that the proof should show the, "fair cash market value of the property before the grade of the highway was raised and its fair cash market value thereafter." The court further stated in that case that the property owner must show damage different from that suffered by the general public.
Baker, at the times hereinafter mentioned, was the lessee of a lot, and its improvements, situated about seven hundred feet west of the bridge across Tombigbee River at Columbus, Mississippi. The lease was for ten years, expiring October 1, 1955. The lot abutted 230 feet on the west side of U.S. Highway 82, which highway, at this point, was also U.S. Highway 45 and Mississippi State Highway No. 12. Upon the lot was located a gasoline service station, and automobile repair shop, a rack and grease pit and a garage for servicing automobiles, and a warehouse. The Mississippi State Highway Commission (which we shall call Commission) in the course of altering, repairing and improving said highway, during the months of September, 1946, to March, 1947, raised the surface of said highway in front of said lot some nineteen to twenty-six inches, rendering it difficult, and, to some extent, hazardous, for motor vehicles to drive from the highway upon the lot to be serviced and then re-enter the highway. Baker brought this action in the circuit court to recover of the Commission damages resulting to his business and property from the raising of this road. It is pertinent to here note that the claimed damages are purely consequential. It is not a condemnation proceeding. The Commission did not seek to acquire title to any property. In fact, the new raised pavement was some two or three feet farther from the lot than was the old pavement.
Baker claimed he was damaged in the total sum of $11,107.58. This total damage, according to his declaration and bill of particulars, consisted of the cost necessary to raise his lot, with all the improvements thereon, to a level with the new road, plus $1,600 loss of profits in the operation of his business, and $1,225 loss of rentals, suffered by him during the five months the work was in progress. On motion of the Commission the trial court struck from the declaration as items of damage, the claims for loss of profits and rentals.
After the suit was filed and shortly before the trial Baker sold his business and assigned his lease and he made a further claim of $3,000, which amount, he contended, he lost in the sale. In other words, he says he could have gotten $3,000 more if, at the time of the sale, the physical situation had been as it was before the road was raised rather than as it was after he had undertaken to remedy the condition.
The proof offered by Baker dealt only with the cost of detailed items necessary, as he claims, to place his property in the same accessible condition to the highway as existed prior to the raising of the road by the Commission. For instance, he raised his lot, the gasoline pumps, his tire shop and warehouse, and did other work necessary, according to his evidence, to remedy the situation so that he could successfully operate his business. There is really no dispute as to that. He showed, without contradiction, he had spent for that purpose some $4,500. He also offered evidence to show that an additional expenditure of over $3,000 would be needed to completely remedy the situation. The jury returned a verdict for Baker in the sum of $1,500. Baker appeals. He contends on this appeal that the proof is undisputed he has paid out over $4,000 in an effort to remedy the conditions and we should affirm the case on liability and enter a judgment here for at least the amount he has actually expended. The Commission admits there is liability but says there is no proof of damage in the record on which a verdict could have been rendered or a judgment entered. In other words, the Commission contends that the rule for measuring the damage in this case is the difference between the market value of Baker's property before, and such value after, the surface of the road was raised. The record discloses no proof whatever on such comparative values. Baker says proof of the cost of items necessary to remedy the situation is a proper basis for a verdict and judgment without proof of such before and after values. Therefore, the ultimate and deciding question is, What is the measure of damage in this case?
(Hn 1) It is settled that in eminent domain proceedings the measure of damage to the property not actually taken is the difference between the fair market value of such property before, as compared to such value after, the taking. State Highway Commission v. Day, 181 Miss. 708, 180 So. 794; Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Commission v. Treas, et al., 197 Miss. 670, 20 So.2d 475. (Hn 2) It is pointed out that there may be exceptional conditions where this rule would not be a proper test, as, for instance, where plaintiff sued for damage to his business resulting from enlargement of the Mississippi Levee, which occasioned the removal of fifty families from the neighborhood of his business, (Kwong, et al. v. Board of Mississippi Levee Commissioners, 164 Miss. 250, 144 So. 693), or where the remaining lot was worth more without the damaged or destroyed house thereon. Sears, Roebuck Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250. Other unusual conditions, where the before and after values test would not be applicable, might be cited. In these exceptional cases all that can be done is to apply thereto a rule supported by reason, logic and common sense, designed to result, as far as may be humanly possible, in the ascertainment of the true, accurate damage the property owner has suffered. However, it is pointed out in the foregoing eminent domain cases, and others we might cite, that evidence of the cost of replacements and putting the remaining property in its former usable condition, entirely or as nearly so as possible, is competent, but this is so, not as constituting a basis for a verdict or judgment separate and independent of the comparative values, but only as bearing upon and tending to show the accuracy, or inaccuracy, of such comparative values as estimated by other evidence responsive directly to the before and after rule.
The expressions used by this Court in defining the rule for measuring damages in non-eminent domain cases, where there is no condemnor, but where the property owner is plaintiff and the damages are purely consequential, have not always been clear and without doubt and confusion. Some have clearly stated it to be the market value before and after the damage. Some have used the expression the owner should "be made whole"; others, that he is entitled to be "compensated for damage done"; in one that he is entitled to the "value of the property taken"; another "the market value diminished." We here list in chronological order, the cases decided since adoption of Section 17 of the Mississippi Constitution of 1890, requiring payment for private property "damaged," as distinguished from such property "taken," for public use, which contain expressions descriptive of the rule by which to measure consequential damages: City of Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; City of Meridian v. Higgins, 81 Miss. 376, 33 So. 1; Warren County v. Rand, 88 Miss. 395, 40 So. 481; King v. Vicksburg Light Co., 88 Miss. 456, 457, 42 So. 204, 6 L.R.A., N.S., 1036, 117 Am. St. Rep. 749; City of Jackson v. Williams et al., 92 Miss. 301, 46 So. 551; Slaughter v. Meridian Light R. Co., 95 Miss. 251, 48 So. 6, 1040, 25 L.R.A., N.S., 1265; Murphy v. City of Meridian, 103 Miss. 110, 60 So. 48; Merrin v. De Soto County, 110 Miss. 254, 70 So. 348; Graham v. Covington County, 110 Miss. 645, 70 So. 825; Schlicht v. Clark, Drainage Commissioners, 114 Miss. 354, 75 So. 130; Funderburk v. Mayor and Board of Aldermen of City of Columbus, 117 Miss. 173, 78 So. 1; Tishomingo County v. McConville, 139 Miss. 589, 104 So. 452; Parker v. State Highway Comm., 173 Miss. 213, 162 So. 162; State Highway Commission v. Corley, 186 Miss. 437, 191 So. 119.
The Corley case settled the question in ordinary cases. The rule in such cases is ". . . the fair cash market value of the property before the grade of the highway was raised and its fair cash market value thereafter." The Corley case, as well as others cited above, also holds admissible evidence of the cost to restore the property to its former condition and to make necessary replacements, etc. But such evidence is competent only as bearing upon the before and after market value. It does not alone establish the damage, nor can it alone constitute the basis of the verdict or judgment. For purpose of clarifying both questions we quote from the Corley case:
"We are of the opinion that the alleged results of the raising of the grade of the highway was a proper element of damages but there was no proof offered on the specific question as to what was the fair cash market value of the property before the grade of the highway was raised and its fair cash market value thereafter. Proof merely tended to show what it might cost to restore the gravel sidewalk and to remedy the condition complained of regarding the drain so as to prevent its recurrence. See City of Meridian v. Higgins, 81 Miss. 376, 33 So. 1; Schlicht v. Clark et al., 114 Miss. 354, 75 So. 130, for a statement of the rule as to the measure of damages in such cases. . . .
"Referring again to the damage claimed on account of the gravel sidewalk being washed away in front of the residence, it is true that the sidewalk was located in the street or right of way of Highway No. 84. The rule is that evidence as to the particulars of details in which the property will be damaged is admissible in so far as the same tends to show the effect of the raising of the grade of the highway on the value of the property, and this rule would permit the introduction of evidence to show the destruction of the sidewalk and filling up of the drain to the same extent that such rule would permit evidence to show the raising of the grade of the highway, on the issue of showing that the fair cash market value of the residence property of the appellees had been damaged by what was done by the appellant in making the improvement in question, although the specific damage to the sidewalk itself may not be recovered on account of the fact that it was a part of the street."
We freely agree that the comparative before and after value test admits of great latitude in determining the damage, but it is established in our cases and it is preferable to the rule that the cost of replacements, reconstruction or rectifying the changed conditions is the measure of the damage. We think this case may be used as an example to prove that. Baker, shortly before the trial, sold this lease, which included two other sites, for $14,000. Suppose the public needs had required the road to be raised fifteen feet in front of Baker's property. Suppose further his property rights at this point were worth, before the road was raised, $15,000, but that the cost of raising his lot and improvements fifteen feet to the level of the road would have cost $25,000. By using the replacement, or reconditioning cost method, he could have imposed on the Commission a liability of $10,000 greater than the entire value of his property. Other illustrations, more extreme than this, might well actually happen in a modern highway construction program. It would, therefore, appear that the combination method is about as good as can be devised. The difference in the before and after value prescribes the limit of recovery and upon that difference the jury must base its verdict, (Hn 3) but what might be termed the fill-in method — that is replacement, reconstruction, or, more properly, the remedying cost — may be shown and used as bearing upon the accuracy, or inaccuracy, of the amount of the damage deduced from the proof of comparative values. Therefore, in order to make certain the rules by which damages are to be ascertained, and evidence is to be competent, in cases of the type at bar, we now restate the rules:
1. In the usual, ordinary case the measure of damage is the difference between the fair market value of the property before, as compared to such value after, the work is done.
2. If the property has no market value, the measure of the damage is the difference between the fair, reasonable value before, as compared to such value after, the work is done.
3. In unusual cases, where the circumstances are such that neither of the foregoing rules is applicable to the peculiar facts, the trial court will adopt such rule as in reason and fairness to the parties is best designed to enable the jury to arrive at the true, accurate amount of the damage.
4. In all cases proof of the cost of remedying the situation to bring the property as near as may be to its former usable condition is competent — not as a separate, independent foundation for a verdict but only as bearing upon and as tending to establish the true value shown by the evidence adduced under one of the foregoing rules.
(Hn 4) And we should now announce upon whom the burden rests in cases like the one at bar. The property owner is the plaintiff in such cases; no attempt is being made by another to acquire title to his property; there is no condemnor. We hold that the burden is upon the plaintiff, first, to show legal damage, and, second, the extent thereof.
We are now brought to the question whether we shall affirm this case or reverse and remand it for another trial. The court is equally divided on that question. Although no proof was offered to show the comparative before and after values, the Commission is in no position to complain on this appeal as to the verdict because it did not cross-appeal. Three of the Judges feel that since the words used by the Court in the past, as shown by above quotations from the cases, have not always specifically defined the rule to be the comparative value test, which may have resulted in some confusion as to the true rule, and since it appears Baker suffered actual damages in excess of the amount of the verdict, we should, in the interest of justice, remand the case for another trial. (Hn 5) On the other hand three of the Judges think the decided cases have clearly established the rule, especially the Corley case. They point out also that the Commission objected to the evidence of plaintiff as to the cost of raising his lot and improvements to the new level of the road, and that this objection was based upon the express ground that there was no proof of the before and after value, and that Baker, being expressly informed on that point, failed to offer proof upon the comparative value theory. They further call attention to the fact that plaintiff obtained an instruction telling the jury ". . . you should award plaintiff such damages as he suffered as a result of the defendant's raising the level of the road . . .", and, if the jury finds that the act of raising the road damaged plaintiff, "then you should award the plaintiff such sum or amount of damages as he actually expended to place his property in the same condition that it was in prior to the change of grade of said road by said defendant." And again "The court further instructs the jury for the plaintiff that damages occasioned by altering the grade of the road are recoverable and if you believe from a preponderance of the evidence that the defendant raised the grade of the road adjacent to plaintiff's property as alleged in the declaration and that plaintiff suffered damages as a result thereof, then it is your duty to find for the plaintiff and assess his damages and for such sum as you find from a preponderance of the evidence has been suffered by the plaintiff." The Commission obtained no instruction whatever, so that, as is evident, these instructions, especially the last, left wide open to the jury the amount of the damage, and three of the Judges think the verdict should not be disturbed under these circumstances. This results in an affirmance of the case.
Affirmed.