Summary
In Harper v. Mississippi State Highway Commission, 216 Miss. 321, 326, 62 So.2d 375, 377, this Court said: "Section 1536, Code of 1942, recognizes the right of a trial court to grant as many as two new trials if the facts and circumstances are such as to warrant the court in doing so. And the action of a trial court in setting aside a verdict and granting a new trial will not be disturbed unless there is a manifest abuse of his discretion in so doing."
Summary of this case from Flurry v. DeesOpinion
No. 38600.
January 26, 1953.
1. Appeal — county court to circuit court.
An appeal from the county court to the circuit court in civil cases, including eminent domain, is on the record made in the county court and if no error is found therein there is an affirmance and, if error, there must be a reversal and a trial de novo in the circuit court.
2. New trial — granting upheld in the absence of abuse of discretion.
The action of a trial court in setting aside a verdict and granting a new trial will not be disturbed unless there has been a manifest abuse of discretion in so doing.
3. Eminent domain — verdict based upon assumption not proved.
Where the valuations which would support a large verdict were based upon the contention that unsold and unplatted adjacent lots of the owners would be damaged by the taking; and it was assumed that except for this the unplatted lots could or would be sold for prices as high as those theretofore sold in the platted portions, when there was no proof sufficient to show the truth of the assumption, the trial court was not in error in ordering a new trial unless a remittitur was entered.
4. Eminent domain — continuances — time to meet issues presented by amended plans.
Where after a verdict has been set aside and a new trial ordered in an eminent domain case and the condemnor on Friday before the second trial was to be had on Monday amended its plans and specifications, evidently intended to lessen the damage which would result from the taking, it was error to refuse a continuance to the landowners to give the time to prepare to prove the full measure of their damages by expert testimony under the changed situation brought about by amendment to the plans and specifications.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
A.Y. Harper, for appellants.
I. The court erred in setting aside the verdict of the jury at the first trial and in granting a new trial. Postal Telegraph Co. v. A. V.R.R. Co., 68 Miss. 314; L., N.O. T. Railway Co. v. Postal Telegraph Co., 68 Miss. 806 ; Cox v. Tucker, 133 Miss. 378; State Highway Comm. v. Williamson, 181 Miss. 399; Miss. State Highway Comm. v. Treas, 197 Miss. 670; Smith v. State Highway Comm., 183 Miss. 741; Warren County v. Harris, 211 Miss. 80; Miss. State Highway Comm. v. Hillman, 189 Miss. 850; Shelton v. Underwood, 174 Miss. 169; Faulkner v. Middleton, 186 Miss. 355; Shemper v. Cleveland, 212 Miss. 113; Transcontinental Gas Pipe Line Corp. v. Myrick, 52 So.2d 295; Miss. State Highway Dept. v. Dodson, 207 Miss. 299; N.O. N.E.R. Co. v. Lewis, 58 So.2d 486.
II. On appeal the circuit court should have reinstated the judgment of the county court awarding the landowners seventeen thousand dollars ($17,000). Sec. 1616, Code 1942; Shelton v. Underwood, 174 Miss. 169; Evans v. Wenger, 139 Miss. 53.
III. The court erred in overruling landowners' motion for a continuance at the second trial. Sec. 1511, Code 1942.
IV. The county court erred in sustaining objections to testimony offered by the landowners as to educational facilities available to residents of the lands involved in this suit. City of Jackson v. Wright, 151 Miss. 829.
V. The testimony offered by Mississippi Highway Department at the second trial did not meet the qualifications of the "before and after" rule and offered no basis on which the jury could act. Miss. State Highway Comm. v. Hillman, 189 Miss. 850; Miss. State Highway Comm. v. Treas, 197 Miss. 670; Miss. Highway Comm. v. Dodson, 203 Miss. 10; Miss. Highway Comm. v. Burwell, 206 Miss. 490; Warren County v. Harris, 211 Miss. 80.
VI. The county court erred at the second trial in overruling the objection of the landowners to the testimony of T.A. Middleton and in overruling their motions to exclude such testimony.
VII. The county court erred in overruling objection to P.K. Lutken's opinion as to value. E.R. Holmes, Jr., and Wright, Overstreet Kuykendall, for appellee.
I. In eminent domain cases appeals from the county court are on the record made in the county court and if no error is found by the circuit court, there is an affirmance, if there be error by the circuit court, there is a reversal and a trial de novo in the circuit court. Miss. State Highway Comm. v. Reddoch, et al., 184 Miss. 302, 186 So. 298.
II. Where there were no reversible errors in the second trial of an eminent domain case the question of whether the new trial was properly granted or not is immaterial, for the only relief which could have been granted by the circuit court was a new trial.
III. The discretion of the trial judge in refusing a continuance or granting a new trial will not be reviewed by bill of exception or otherwise in absence of abuse of discretion or unless there was manifest error. 30 C.J.S., p. 42, citing Miss. State Highway Comm. v. Reddoch, supra, pp. 48, 50, 62, citing Kansas City v. Mulkey, 176 Mo. 229, 75 S.W. 973; St. Joseph v. Hamilton, 43 Mo. 282.
IV. The county court did not err in granting a new trial. Miss. State Highway Comm. v. Reddoch, 184 Miss. 302, 186 So. 298; Shelton, et al. v. Underwood, 174 Miss. 169, 163 So. 828; White's Lbr. Supply Co. v. Colling, 186 Miss. 659, 192 So. 312; Witherspoon v. State, ex rel. West, 138 Miss. 310, 103 So. 134; McRaven v. McQuire, 9 Sm. M. (17 Miss.) 34; State Highway Comm. v. Brown, 176 Miss. 22, 168 So. 277; Miss. State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Miss. State Highway Comm. v. Loper, et al., 33 So.2d 288; Miss. State Highway Comm. v. Blackburn, et al., 172 Miss. 554, 160 So. 73; Sec. 154, Eminent Domain, C.J.S., pp. 1013, 1014; Warren County v. Harris, 50 So.2d 918.
V. If the county court erred in granting a new trial, this Court is not required to reinstate the former judgment of $17,000.00. Secs. 1616, 1962, Code 1942; Y. M.V.R.R. Co. v. Scott, 108 Miss. 871, 67 So. 491.
VI. The trial court did not err in overruling appellants' motion for a continuance at the second trial.
VII. The trial court did not err in sustaining the objection to the testimony of A.Y. Harper pertaining to Tougaloo College. City of Jackson v. Wright, 151 Miss. 829, 199 So. 312.
VIII. The appellee's evidence did meet the requirements of law as to valuation in an eminent domain suit.
This cause was heard on the petition of the appellee, Mississippi State Highway Commission, to condemn for right-of-way purposes three parcels of land on the east side of a 114 1/2 acre tract north of Jackson belonging to the appellants Mr. and Mrs. A.Y. Harper and the heirs at law of Louis M. Jiggitts, deceased, the larger of which parcels is situated so that the right-of-way of U.S. Highway 51 as presently located constitutes the western boundary and white Oak Creek the eastern boundary thereof. The three parcels of land described in the petition consist of one parcel containing 4.82 acres for a link in the new highway now being located east of Tougaloo in Hinds County, and which parcel is 230 feet wide and approximately 900 feet in length, running north and south, near White Oak Creek, and on which parcel a dirt fill has been constructed which ranges from approximately 3 1/2 to 7 1/2 feet high. The north end of said parcel borders on White Oak Creek over which a concrete bridge about 48 feet long is constructed, and to the south of this parcel the original plans and specifications called for a culvert 4 feet high by 5 feet in length, it being intended that the water flowing in a southeasterly direction on the 114 1/2 acre tract is to be drained by a ditch along the west side the dirt fill of the new highway and running to the north to White Oak Creek, and that the water which comes against the south end of the said fill is to be drained toward the culvert located south of the 4.82 acre parcel.
One of the other two small parcels to be condemned contains .41 of an acre to the northwest of the north end of the 4.82 acre parcel, and is to be used for making a better channel for White Oak Creek for drainage purposes, and the other small parcel sought to be condemned contains .56 of an acre to the southeast of the north end of the 4.82 acre tract, is likewise for use in making a better channel of White Oak Creek for drainage purposes.
On the first trial in the county court the jury awarded to the appellants, as defendants in the suit, the sum of $17,000.00 as damages for the value of the three parcels taken and also for depreciation in value of the remainder of the land not taken. The witnesses for the State Highway Commission, who were experienced real estate men, fixed the total damages as being between $3,000.00 and $3,600.00, two of them at the former amount and one at the latter, whereas the witnesses for the defendant landowners fixed their damages between $20,000.00 and $30,000.00. Upon motion of the State Highway Commission this verdict of the jury was ordered by the county judge to be set aside, unless the landowners should within 5 days enter a remittitur in the sum of $7,000.00. The remittitur was not entered and the verdict was therefore set aside and a new trial granted.
On Friday before the second trial in the county court, which began on Monday, the State Highway Commission amended its plans and specifications so as to clearly delineate the proposed ditch immediately along the west side of the fill constructed for the new highway, and also to enlarge the culvert to the south of the 4.82 acre parcel, from its original size of 4 by 5 feet to 4 by 16 feet. The landowners were then notified of the proposed changes in the plans and specifications to be considered by the jury on the second trial, but they were not specified in writing and on file until Saturday morning before the trial was to begin on Monday morning, and because of the amendment to the plans and specifications the landowners requested a continuance of the case on the second trial until they could have time to obtain expert engineering advice as to the extent the changes in the plans might affect the damages testified to by their witnesses on the first trial a few weeks before, it having been testified by at least two of the witnesses for the landowners on the first trial that unless something was done to take care of the water that would come from toward the old highway in a southeasterly direction toward the fill on the right of way the water would be caused to pond upon some of the land that was not being taken in the condemnation proceeding. This fact formed to some extent the basis of their calculation of the damages on the first trial. The motion for the continuance of the case to a later day was overruled by the county court and the trial was proceeded with on Monday as scheduled. The failure to grant the continuance to a later day of the court is one of the errors assigned on this appeal.
It is also assigned as error, among other grounds, that the circuit court should not have affirmed the verdict of $6,070.00 rendered on the second trial but should have reinstated the verdict of the $17,000.00 as rendered on the first trial. But we do not think the circuit court was in error in not reinstating the first verdict. It was held by this Court In Banc in the case of State Highway Commission v. Reddoch, et al., 184 Miss. 302, 186 So. 298, that (Hn 1) an appeal from the county court to the circuit court in eminent domain proceedings, as in other civil cases, is on the record made in the county court, and if no error is found there is an affirmance, and if there is error there must be a reversal and a trial de novo in the circuit court.
Section 1536, Code of 1942, recognizes the right of a trial court to grant as many as two new trials if the facts and circumstances are such as to warrant the court in doing so. And (Hn 2) the action of a trial court in setting aside a verdict and granting a new trial will not be disturbed unless there is a manifest abuse of his discretion in so doing. We are unable to say from the record on the first trial, which was made a part of the record on the second trial by a bill of exceptions, as provided for in Section 1537, Code of 1942, that the trial court was guilty of an abuse of his discretion in setting aside the verdict of the first jury in the amount of $17,000.00, and especially in view of the fact that he offered to let a verdict for as much as $10,000.00 stand, provided the remittitur of $7,000.00 was entered by the landowners.
(Hn 3) The correctness of the action of the county court in setting aside the $17,000.00 verdict at the end of the first trial is not dependent alone upon the question of whether or not the verdict was grossly excessive, but the court was also entitled to consider the basis on which the damages were evidently assessed on the first trial, and which fact was also assigned as error on the motion for a new trial in the county court.
It appears that the landowners had caused to be platted and filed for record Beverly Heights Addition No. 1 and Beverly Heights Addition No. 2, beginning as early as 1946, and that these subdivisions lie between White Oak Creek on the east side of the 114 1/2 acres and Highway No. 51 as presently located and used by the traveling public. The proof for the landowners disclosed that prior to the first trial they had sold 137 lots for an average of $485.00, but that these lots were not sold for cash but in the main on credit, to be paid for at the rate of from $8.00 to $10.00 per month, to Negroes who desired to build in these subdivisions, located not far from Tougaloo College; that the damage to the land not taken in the condemnation proceedings related primarily to approximately 16 to 18 acres, and was arrived at on the basis aforesaid and that the value of this unplatted portion of the land not taken was calculated on the basis of what the higher lots and those bordering on the old highway, before the new highway was proposed, were sold for. While it is true that the witnesses summarized their calculations by stating what the entire value was before the taking and thereafter, they had assumed that there would be such further demand for lots in the now unplatted acreage as there had been for the platted area. We do not think that the county judge was guilty of an abuse of his discretion in setting aside the first verdict under all the circumstances hereinbefore stated.
For instance, it is not known but what the two subdivisions already platted will be sufficient to serve the need for residences for colored people who desire to build near Tougaloo College. That is to say, it is not known whether there will ever be occasion or need for platting and selling lots in the unplatted part of the lands of the defendants.
Having reached the conclusion that we are not justified in saying that the county court abused its discretion in setting aside the $17,000.00 verdict on the first trial, we now come to the question of whether the court should have granted a continuance for such time as was necessary on the second trial to enable the landowners to prepare to prove their damages by expert testimony under the changed situation brought about by the amendment of the plans and specifications for the proposed new highway. Ordinarily it is within the sound discretion of a trial court as to whether or not a continuance should be granted and we do not intend to depart from that well established rule except for exceptional circumstances. (Hn 4) But in the instant case we are of the opinion that the landowners were entitled to more time within which to prepare to prove the full measure of their damages under the changed conditions brought about immediately before the second trial.
For the foregoing reasons we have concluded that the case should be reversed and remanded to the circuit court for a trial de novo therein, even though no error may have been committed on the second trial other than the failure to continue the case to a later day of the court. Assuming that the project is now nearing completion, and that another jury might be able to better determine to what extent the drainage has been a success, it should be able to reach a proper verdict as to the amount of damages caused to the landowners by reason of the land taken, and by reason of injury to the remaining land because of the road-building project involved.
Reversed and remanded.
Hall, Kyle, Arrington and Ethridge, JJ., concur.