Opinion
No. 40918.
November 24, 1958.
1. Municipalities — trespass — evidence — justified Trial Court's finding that city had trespassed on land and that damages resulted therefrom.
In action by owner of a strip of land against city to recover damages for alleged trespass, evidence justified Trial Court's finding that city had trespassed on land and that damages resulted therefrom.
2. Trespass — damages — decree — Trial Court's decree undertaking to award future damages against city for acts of trespass — improper.
Portion of Trial Court's decree undertaking to award future damages against city for acts of trespass on strip of land of landowner was not justified since future facts and rights could not be known to Trial Court when decree was entered.
3. Trial — findings of Trial Judge based on personal knowledge of facts and not upon evidence and testimony adduced before him on the trial — improper.
It is improper for Trial Judge to base his findings and render his decree upon his personal knowledge of the facts of the case before him, and not upon the evidence and testimony adduced before him at the trial.
4. Trial — Chancellor's statement in his oral opinion did not establish that findings were improperly founded upon his personal opinion.
Chancellor's statement in his oral opinion that he was "fully familiar with the particular piece of street in controversy" did not establish that findings of Chancellor were improperly founded upon his personal knowledge, in view of rest of his oral opinion.
5. Eminent domain — governmental subdivisions not liable for payment of counsel and expert witness fees in absence of statute.
Governmental subdivisions are not liable for payment of counsel and expert witness fees incurred by landowners in eminent domain proceedings unless statute in express terms or by necessary implication imposes such liability.
6. Eminent domain — statutes — municipality liable for payment of counsel and expert witness fees incurred by landowner on dismissal of proceedings.
City which instituted eminent domain proceedings on October 21, 1955, to condemn and acquire title to strip of land and thereafter dismissed proceedings on May 20, 1957, was liable under applicable statute for payment of counsel and expert witness fees incurred by landowner who made preparations to defend the eminent domain proceedings. Sec. 2749, 2775, Code 1942.
7. Eminent domain — statutes — liability of municipality for reasonable expenses of landowner in defending suit on dismissal of proceedings.
Statute providing, that in case eminent domain suit shall be dismissed by a "plaintiff" the defendant may recover of the plaintiff in an action brought therefor, all reasonable expenses, including attorneys' fees, incurred by him in defending the suit, necessarily imposes such liability on municipality where it dismisses eminent domain proceedings brought against landowner. Secs. 2749, 2775, Code 1942.
8. Appeal — eminent domain — costs equally divided between property owner and municipality.
Where Supreme Court affirmed Trial Court's decree awarding property owner counsel fees and appraiser fees incurred in defending city's eminent domain proceedings which were thereafter dismissed, and damages for city's past acts of trespass on that property, but reversed portion of Trial Court's decree awarding damages for future acts of trespass, costs on appeal would be divided equally between property owner and city.
Headnotes as approved by Roberds, P.J.
APPEAL from the Chancery Court of Hinds County, L. ARNOLD PYLE, Chancellor.
E.W. Stennett, W.T. Neely, Jackson, for appellant.
I. The Court erred in awarding appellee damages for an alleged trespass in the absence of testimony of a trespass, the period of time which the alleged trespass covered, and the absence of testimony of any damages resulting therefrom, basing its decree on the Court's own private and personal information, and in awarding damages for trespass in the form and amount set forth in its decree. Anderson v. Rievely, 218 Miss. 211, 67 So.2d 249; Bean v. Clark, 226 Miss. 892, 85 So.2d 588; Frederic v. Board of Suprs. Jackson County, 197 Miss. 293, 20 So.2d 671; Gillespie v. Doty, 160 Miss. 634, 135 So. 211; Hester v. Bishop, 193 Miss. 149, 10 So.2d 350; McBride v. State, 221 Miss. 508, 73 So.2d 154; Ramsey v. Milner, 197 Miss. 120, 40 So.2d 889; Smith v. Moore, 3 How. 40; Town of Newton v. Wilson, 128 Miss. 726, 91 So. 419; W.T. Rawleigh v. Armstrong, 165 Miss. 380, 140 So. 527; Wisdom v. Stegall, 219 Miss. 776, 70 So.2d 43.
II. The Court erred in awarding damages against a subdivision of the State of Mississippi on account of the dismissal of an eminent domain proceeding. Byrd v. Board of Suprs. Jackson County, 179 Miss. 880, 176 So. 386; Cage v. Trager, 60 Miss. 563; City of Jackson v. Cook, 214 Miss. 201, 58 So.2d 498; City of Jackson v. Reed, 233 Miss. 280, 103 So.2d 6; City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223; City of Natchez v. McGehee, 157 Miss. 225, 127 So. 902; City of Water Valley v. Poteete, 203 Miss. 382, 33 So.2d 794; Coleman v. Whipple, 191 Miss. 287, 2 So.2d 566; Desforge v. West St. Paul, 231 Minn. 205, 42 N.W.2d 633; Hinds County v. Johnson, 133 Miss. 591, 98 So. 95; Josselyn v. Stone, 28 Miss. 751; Meadow Park Land Co. v. School Dist. of Kansas City (Mo.), 257 S.W. 441, 31 A.L.R. 343; Meridian Memphis R. Co. v. Betbeze, 111 Miss. 810, 72 So. 233; Moore v. Tunica County, 143 Miss. 839, 108 So. 900; Rankin County v. Wallace, 230 Miss. 413, 92 So.2d 661; State Highway Comm. v. Buchanan, 175 Miss. 157, 165 So. 795; Sec. 17, Constitution 1890; Secs. 39, 1971, 2775, 3374-129, Code 1942; 38 Am. Jur., Municipal Corporations, Sec. 663; Annos. 31 A.L.R. 352; 121 A.L.R. 90; McQuillin, Municipal Corporations (3d Ed.), Sec. 49.37.
McLendon McLendon, Jackson, for appellee.
I. The Lower Court did not err in awarding appellee damages for the continuing trespass, confiscation and use of appellee's property. 15 Am. Jur., Damages, Sec. 129; 52 Am. Jur., Trespass, Sec. 49.
II. The Lower Court did not base its decree on the Court's own private and personal information. Smith v. Moore, 4 Miss. 40.
III. The Lower Court did not err in awarding appellee damages for appellant's continuing trespass at the rate of $25.00 per month after the date of the final decree. Griffith's Miss. Chancery Practice, Sec. 35.
IV. The Lower Court did not err in awarding damages against a municipality under the provisions of Section 2775 of the Mississippi Code of 1942. City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223; City of Jackson v. Wear, 176 So. 599; City of Jackson v. Williams, 92 Miss. 301, 46 So. 551; Coleman v. Whipple, 191 Miss. 287, 2 So.2d 556; Josselyn v. Stone, 28 Miss. 753; Meadow Park Land Co. v. School District of Kansas City (Mo.), 257 S.W. 441; Meridian Memphis R. Co. v. Betbeze, 111 Miss. 810, 72 So. 233; Moore v. Tunica County, 143 Miss. 839, 108 So. 900; State Highway Comm. v. Mason, 192 Miss. 516, 4 So.2d 345, 6 So.2d 468; Sec. 17, Constitution 1890; Secs. 39, 2749, 2775, 3374-128, Code 1942; Anno. 31 A.L.R. 352.
V. The Court erred in failing to award appellee the full $650.00 attorneys' fees incurred by him and sued for. Colbert v. Henley, 64 Miss. 374, 1 So. 631; Nixon v. Biloxi, 76 Miss. 812, 25 So. 664; Griffith's Miss. Chancery Practice, Sec. 350.
VI. The Court erred in failing to award the appellee damages for appellee's loss of time in the defense of the eminent domain suit which was dismissed. Meridian Memphis R. Co. v. Betbeze, supra; Sec. 1877, Code 1906.
VII. The Court erred in failing to award the appellee the punitive damages sued for. Town of Newton v. Wilson, 128 Miss. 726, 91 So. 419; Anno. 19 A.L.R. 2d 912.
VIII. If the Court erred in awarding appellee damages at the rate of $25.00 per month after the date of the final decree, then the Court erred in denying the appellee an injunction. Hood v. Foster, 194 Miss. 812, 13 So.2d 652.
IX. The Court erred in failing to specifically award the appellee interest on the amount awarded from the date of the final decree. State Highway Comm. v. Mason, supra; Sec. 17, Constitution 1890.
Bailey Avenue Extension runs north and south and Mayes Street runs east and west in the City of Jackson, Mississippi. They intersect and cross in the northwesterly part of the City. On October 21, 1955, Lee, the appellee and cross-appellant, was the owner of a lot located at the southwest juncture of said two streets. That lot extended along the south boundary of Mayes Street 165 feet and along the west boundary of Bailey Avenue Extension 58 feet. Lee had constructed upon the lot a brick building in which a store and gasoline pump were being operated. The building faced east upon Bailey Avenue Extension. About twenty-two feet of the Lee lot lay between the eastern wall of the building and the west line of Bailey Avenue Extension. The gasoline pump was located upon that part of the Lee lot.
On said date, October 21, 1955, the City of Jackson instituted eminent domain proceedings to condemn and acquire title to some ten to fifteen feet off of the eastern part of the strip of land lying between the store building and the west line of Bailey Avenue Extension. Lee engaged counsel, answered the petition filed by the City and made preparations to defend the eminent domain proceedings. On May 20, 1957, the City dismissed the condemnation proceedings.
In July 1957, Lee filed the bill in this cause. The bill sought to recover from the City (1) damages for trespass upon the strip of land attempted to be, but which was not, condemned; (2) punitive damages; (3) counsel fees; (4) appraisal fees; (5) compensation for his own time, all resulting from the filing of the eminent domain proceedings; and (6) for a permanent injunction restraining the City from trespassing on said strip of land sought to be condemned.
The City, in its answer, admitted the institution and dismissal of the eminent domain proceedings; denied that Lee was entitled to an injunction and denied he was entitled to recover damages, or a personal decree, for counsel fees, or other expenses, resulting from any alleged trespass, or institution of the eminent domain proceedings, by the City.
The chancellor, in his decree, allowed Lee $1,050 damages for trespass to the date of the trial, figured on the basis of $25 per month depreciation in the rental value of the property for forty-two months, and provided that such "* * * damages shall continue to run at the said sum of $25.00 per month as long as the City continues to make use of this piece of property in the fashion in which it has been using it during the past 42 months"; allowed Lee $400 counsel fees and $100 to pay for services of appraisers. He denied the other relief for which Lee prayed in his bill.
The City prosecuted a direct appeal, and Lee a cross-appeal, from that decree.
(Hn 1) On the direct appeal, the City contends that the proof is not sufficiently definite and specific as to acts of trespass upon the Lee lot by the City, and the damage to Lee, to justify allowance by the chancellor of damages to Lee. There is evidence that the City has exercised control over the ten-foot strip for a number of years; that it has graded said strip weekly; that it changed the level of the plot of ground as compared to the level of Bailey Avenue Extension, rendering the store building and the gasoline pump less accessible to customers at this place of business; that, in the process of grading the lot, a tree, located at the northeast corner of the lot, was pulled down and removed. There was also evidence that, as a result of activities of the City on this lot, plate glass was broken in some of the windows in the store building. L.B. Hilburn, a real estate dealer and expert appraiser, testified that the Lee property, undisturbed, would have a rental value of $160 to $175 per month, whereas it was being rented by Lee, under the disturbed conditions, resulting from the act of the City, for $125 per month, the tenant paying insurance and taxes. In 15 Am. Jur., Damages, Section 129, p. 537, the rule is stated in this language: "A recovery may generally be had for the loss of the use of specific property where the reasonable worth of such use may be shown with fair certainty * * *" We are of the opinion that the chancellor was amply justified in concluding that the trespasses and damages resulting therefrom were shown with fair certainty in this case.
(Hn 2) However, the part of the decree, as shown by the quotations therefrom set out above, assessing and fixing future damages, was not justified. Such damages, if any, will have to be determined by the conditions arising and existing in the future, both as to nature and extent of the acts of trespass, and the extent of the damage which may result from such trespass. Facts and circumstances, and the duties, rights and liabilities arising out of them must be ascertained and determined in the future as and when resort may be had to the courts for that purpose. Such future facts and rights could not be known in this case when the decree was entered herein. The part of the decree undertaking to decree future damage against the City will be eliminated.
(Hn 3) The City says that the chancellor based his findings and rendered his decree upon his personal knowledge of the facts of this case, not upon the evidence and testimony which was adduced before him at the trial. The City is correct in its contention that a trial judge cannot do that. This Court has held that a number of times. Smith v. Moore, 3 Howard 40; Gillespie v. Doty, 160 Miss. 684, 135 So. 211; Hester v. Bishop, 193 Miss. 449, 10 So.2d 350; Wisdom, et ux v. Stegall, 219 Miss. 776, 70 So.2d 43; McBride v. State, 221 Miss. 508, 73 So.2d 154. See also the rule as stated in 31 C.J.S., Evidence, Sec. 11, p. 516. The deciding question is whether the record shows that the chancellor based his findings and conclusions upon his personal knowledge of the facts.
The only evidence in the record that the private knowledge of the chancellor influenced his decision is contained in this statement made by him as a part of his oral opinion: "It just so happens that this Court has traveled over that street and stopped at this point about every Monday night for the past three years in going to and from the Military District for Army Reserve Training and is fully familiar with the particular piece of street in controversy here."
(Hn 4) It will be noted that the chancellor, in that remark, did not go into any details. He said he was "fully familiar with the particular piece of street in controversy here." That did not mean that he was familiar with all the pertinent facts bearing upon the rights of the parties hereto. They were much more extensive than the mere appearance of the street. But the rest of the oral opinion shows conclusively, we think, that while the chancellor was familiar with the street, he based his findings and conclusions upon the evidence and testimony introduced before him. He used these expressions: "It is very apparent to this court from the proof here * * * The picture offered in evidence here as Exhibit C-2 clearly discloses * * * A study of the plat which is admitted into evidence * * * taken with the photograph, Exhibit C-2, clearly discloses * * * the proof here shows * * * The court is firmly of the opinion from the evidence here presented * * * From the evidence which has been presented here * * * That the complainant under the evidence * * *" In addition to the foregoing remarks, the opinion of the chancellor frequently refers to what this or that witness said, sometimes calling them by name. It is clear to us that the findings of the chancellor were not founded upon his presonal knowledge, but, on the contrary, were based entirely upon the evidence introduced before him. We adhere strictly to the rule announced in the cited cases but we are fully satisfied it has no application to the circumstances of this case.
(Hn 5) The City contends that the municipality was not liable for the payment of counsel and expert witness fees incurred in an eminent domain proceeding. It cites a number of cases and texts announcing the rule that governmental subdivisions are not liable for such fees in eminent domain proceedings unless the statute in express terms or necessary implications imposes such liability. That is unquestionably the rule (Hn 6, 7) but we think Sec. 2775, Miss. Code 1942, Recompiled, necessarily imposes such liability. That statute provides, among other things, that "* * * in case the suit shall be dismissed by the plaintiff * * * the defendant may recover of the plaintiff in an action brought therefor, all reasonable expenses, including attorneys' fees, incurred by him in defending the suit." Certainly "plaintiff", by the natural meaning of the word, would include municipalities. Sec. 2749, said Code, provides that the right to condemn private property for public use shall be exercised as provided in Eminent Domain Chapter of the Code, "except as elsewhere in this Code specifically provided." We do not find any other provision specifically dealing with the obligation of plaintiff to pay "attorneys' fees" and "reasonable expenses" in eminent domain proceedings except that provided by said Sec. 2775. If the power of eminent domain is exercised by a municipality, it must be done in accordance with said Sec. 2775.
In City of Jackson v. Williams, 92 Miss. 301, 46 So. 551, the Court said: "The right which a municipality has to take or damage private property for public use is no greater because it has an element of sovereignty in it than is that of any other person or corporation having the eminent domain power. No milder or more liberal rule of interpretation of the constitution will be indulged in where the taking or damaging is done by a municipality than is to be applied to all alike. The private citizen is no more called upon to allow his property to be taken or damaged for a public use by a municipality without adequate compensation than he is required to submit to the taking or damage by any other corporation."
In State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345, this Court held that in eminent domain proceedings the State Highway Commission was liable for costs and interest and damages just as a private corporation would be in such a proceeding.
The case of City of Jackson v. Mrs. Minta J. Wear, 176 So. 599 (Miss.), appears to settle the question that a municipality is liable for the fees and expenses imposed by said Sec. 2775. No opinion was written in that case but we have examined the original record on file in this Court. It appears that the City of Jackson instituted eminent domain proceedings in the County Court of Hinds County to condemn and acquire title to a lot owned by Mrs. Wear in the City of Jackson. The jury fixed the value of the lot at $2,000, and a judgment was accordingly entered. The City appealed the case to the Circuit Court of said County. Before the case came on for trial in the circuit court, the City dismissed the proceedings. Thereupon, Mrs. Wear brought a suit in the Circuit Court of said County to recover $500 attorney's fees and for fees of two expert witnesses incurred by her in the eminent domain proceedings. The jury returned a verdict in favor of Mrs. Wear for the attorney's fees, evidently being of the opinion that, on the merits, the fees of the expert witnesses should not be allowed. On appeal to this Court, the case was affirmed, thereby establishing the liability of the municipality for the attorney's fees.
Sec. 2775 places liability for payment of "reasonable expenses" by plaintiff in the same category as liability for payment of attorney's fees.
Lee, as cross-appellant, raises a number of questions, as above shown. We have carefully examined all of them and are of the opinion none are well taken. (Hn 8) The decree entered herein will be affirmed except there will be eliminated therefrom the provision imposing upon the City the payment to Lee of $25 per month after the date of the decree. The costs of the appeal will be divided equally between Lee and the City.
Affirmed in part; reversed in part and judgment entered here.
Holmes, Lee, Kyle and Arrington, JJ., concur.