Opinion
No. 41361.
January 18, 1960.
1. Appeal — eminent domain — values — witnesses — professional witness.
In eminent domain proceeding, Supreme Court could not ignore fact that two of landowner's witnesses had been testifying to enormous values in prior eminent domain suits.
2. Eminent domain — damages — award for taking excessive — remittitur.
Where tract of approximately 5 acres of pasture land, which was considered unimproved and contained no structures and was located at opposite corner of a 40-acre tract from owner's residence and barn, was located in rural area, and part condemned did not include oil, gas, or mineral rights, and proposed nonaccess highway for which tract was taken would not interfere with owner's access to property by county road, judgment for $2,821 was grossly excessive, and judgment would be reversed and cause remanded unless owner would enter remittitur of $1,000.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, Judge.
McFarland McFarland, Bay Springs, for appellant.
I. The trial court erred in admitting evidence as to cost of making an improved pasture. Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Comm. v. Treasurer, 197 Miss. 670, 20 So.2d 475; Sears, Roebuck Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250.
II. The jury's verdict was grossly excessive, evinced bias, passion and prejudice against appellant and is shocking to an enlightened conscience. Mississippi State Highway Comm. v. Daniels, 235 Miss. 185, 108 So.2d 854; Mississippi State Highway Comm. v. Smith, 202 Miss. 488, 32 So.2d 268.
III. The learned Circuit Judge erred in not reversing the trial court judgment in toto. Mississippi State Highway Comm. v. Ellzey, 237 Miss. 345, 114 So.2d 769; Mississippi State Highway Comm. v. Rogers, 236 Miss. 800, 112 So.2d 250.
Sidney T. Roebuck, Newton; Ethridge, Minniece Bourdeaux, Meridian, for appellees.
I. Cited and discussed the following authorities. Baker v. Mississippi State Highway Comm., 204 Miss. 166, 37 So. 169; Floyd v. Williams, 198 Miss. 350, 22 So.2d 365; Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; Mississippi State Highway Comm. v. Buchanan, 175 Miss. 157, 166 So. 537; Mississippi State Highway Comm. v. Burwell, 206 Miss. 490, 39 So.2d 497; Mississippi State Highway Comm. v. Day, 181 Miss. 708, 180 So. 794; Mississippi State Highway Comm. v. Dodson, 207 Miss. 229, 42 So.2d 179; Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Comm. v. Treasurer, 197 Miss. 670, 20 So.2d 475; Mississippi State Highway Comm. v. Williamson, 227 Miss. 580, 86 So.2d 670; National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91, 95 A.L.R. 1500; Rasberry v. Calhoun County, 230 Miss. 858, 94 So.2d 612; Sears, Roebuck Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250; Smith v. Mississippi State Highway Comm. 183 Miss. 741, 184 So. 814; Warren County v. Harris, 211 Miss. 80, 50 So.2d 918; Wheeler v. State Highway Comm., 212 Miss. 606, 55 So.2d 225; McElroy's Mississippi Evidence, Sec. 30 p. 126.
This is an eminent domain proceeding wherein the Highway Commission is taking approximately five acres of land from the southeast corner of appellee's property for a non-access highway from a forty-acre tract on which in the opposite corner is situated a dwelling house and barn of the appellee. There are no structures on the part taken and the appellee has access to and from his residence and other property by a county road that runs along the west side and the proposed highway does not interfere with the access to appellee's property. He has approximately fifteen to seventeen acres in cultivation and what the appellant is taking is pasture land which is considered unimproved. The part condemned does not include the oil, gas and mineral rights. According to the proof for the Highway Commission, two witnesses placed the difference in value before and after the taking at $1,000 and $900, respectively.
(Hn 1) One witness for the defendant placed the difference in value before and after the taking at $5,250 and another witness placed the difference in value before and after the taking of $5,587.50, but we cannot ignore the fact that these two witnesses have been testifying to enormous values in prior eminent domain suits.
(Hn 2) This case was originally tried in the county court and there the jury rendered a verdict for $3,821. On appeal to the circuit court, the circuit judge held that the amount awarded for the five acres taken was grossly excessive and ordered a remittitur of $1,000, which remittitur was promptly accepted by the defendant, reducing the recovery to $2,821, for which amount judgment was finally entered in the circuit court. The land here in question is situated in a rural area of Jones County.
The principal point raised by the appellant is that the judgment for $2,821 is still grossly excessive and we are of the opinion that the price of over $550 per acre for the land taken, in view of its location in a rural area, is still so grossly excessive as to shock the enlightened conscience and that the judgment of the circuit court should be reversed and the cause remanded unless the appellee will enter a further remittitur of $1,000 so as to reduce his recovery to $1,821, which we believe will still fully compensate the appellee for approximately five acres of land taken.
It is therefore hereby ordered that the judgment of the lower court be and the same is hereby reversed and the cause remanded unless the appellee will enter a further remittitur of $1,000, thereby reducing the recovery to $1,821, which we believe and are thoroughly convinced from the record will fully compensate the appellee for the small area of land taken.
Affirmed with remittitur, or reversed and remanded.
McGehee, C.J., and Lee, Kyle and Holmes, JJ., concur.