Opinion
No. 40091.
April 9, 1956.
1. Eminent domain — damages — difference in value of land before and after taking — jury question.
In condemnation proceeding, jury was not forced to accept testimony of condemner's witnesses that difference in value before and after taking was $1500 in view of fact that condemnee's witnesses placed the difference in value at a higher sum, and trial court was correct in refusing to direct a verdict for $1500, as the issue was one for decision by a jury.
2. Eminent domain — damages — evidence sustained jury verdict.
Evidence was sufficient to sustain verdict setting $4,000 as difference in value before and after the taking.
3. Eminent domain — jury view — failure to comply with formal requisites — not reversible error — where no objection raised.
In such case, motion for a jury view should not have been made in presence of jury, and order for a view should have been entered upon the minutes instead of merely being dictated into the record, but such error was not reversible in absence of any objection to the proceedings by the opposing party. Sec. 1800, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Yalobusha County; CURTIS M. SWANGO, Judge.
Kermit R. Cofer, Water Valley; Matthew Harper, Jr., Asst. Atty. Gen., Jackson, for appellant.
I. The Court erred in refusing appellant's request for peremptory instruction to the jury to return a verdict of $1,500 for the appellee.
II. The verdict of the jury and the judgment thereupon entered by the Court are contrary to the law and the overwhelming weight of the evidence, and the verdict evinces bias and prejudice on the part of the jury, and the amount of said verdict and judgment is excessive.
III. The Court erred in permitting all witnesses for defendant, including the defendant, to testify, over timely objection and protest of the appellant, as to value of the property and amount of damages to the defendant through the taking of the land in this cause. Miss. State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Miss. State Highway Comm. v. Prewitt, 186 Miss. 670, 192 So. 11; Miss. State Highway Comm. v. Smith, 187 Miss. 613, 192 So. 448; Miss. State Highway Comm. v. Treas, 197 Miss. 670, 20 So.2d 475; State Highway Comm. v. Day, 181 Miss. 708, 180 So. 794; Wheeler v. State Highway Comm., 212 Miss. 606, 55 So.2d 225.
IV. The Court erred in granting a jury view of the premises, on motion of the defendant, the motion being made in the presence of, and without first retiring, the jury; the defendant's motion not showing or in anywise indicating that such view was necessary, or essential, in order to reach the ends of justice, or that the same would in any manner promote the ends of justice, and the Court making no finding that such view was necessary for said purpose; the defendant offering no evidence in support of her motion, to show that such view was thus necessary or essential nor does the entire record indicate such necessity as would warrant a jury view; no order being entered, before the view, or at any time, providing for the view and inspection; and the statute and law being entirely departed from and not followed in permitting and carrying out said view. Great Atlantic Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550; Miss. State Highway Comm. v. Chatham, 173 Miss. 427, 161 So. 674; Miss. State Highway Comm. v. Smith, supra; National Box Co. v. Bradley, 171 Miss. 26, 157 So. 91, 95 A.L.R. 1500; Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112; Secs. 1800, 2770, Code 1942.
Stone Stone, Coffeeville, for appellee.
This is an eminent domain case wherein the jury in the special court of eminent domain awarded damages to the appellee in the sum of $3,600.00, from which an appeal was taken to the circuit court and upon a trial de novo the jury awarded her damages in the sum of $4,000.00. The State Highway Commission appeals and contends that the lower court erred in refusing it an instruction to assess the damages at $1,500.00, and contends also that, if mistaken in this, the verdict of the jury is so excessive as to evince bias and prejudice and that the case should be reversed and remanded for another trial. We shall deal with these contentions together.
(Hn 1) Two witnesses for appellant testified that the difference in value before the taking and after the taking was $1,500.00. We do not understand however that the jury was forced to accept their testimony. Mrs. Williamson placed the difference in value at $9,000.00. Her son placed it at $6,000.00. G.D. Langston placed it at $5,000.00. Other witnesses testified and their evidence was excluded on motion of the petitioner and may be disregarded. We are of the opinion that the lower court was clearly correct in refusing to direct a verdict for $1,500.00, that the issue was one for decision by a jury, (Hn 2) and that the competent evidence is sufficient to justify a verdict in the amount of $4,000.00.
(Hn 3) Appellant contends finally that the lower court erred in permitting a jury view of the premises. At the conclusion of all of the testimony counsel for the defendant, in the presence of the jury, made a motion that the jury be carried to look at the scene. The court immediately had the jury retired and counsel for defendant made a further statement with reference to his motion, and counsel for the Highway Commission made no objection whatsoever, did not move for a mistrial, and the court thereupon dictated to the stenographer an order for a view of the premises. This order appears in the court reporter's notes but was not spread upon the minutes of the court as it should have been. Of course the motion, under Section 1800, Code of 1942, should never have been made in the presence of the jury and, as we held in Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112, the order should have been entered upon the minutes instead of merely being dictated into the record, but since counsel for appellant made no objection to any of the proceedings, and apparently agreed thereto, we do not think that any reversible error was committed by the trial court. As in the Poteete case, we again warn counsel that a motion for a jury view of the premises should never be made in the presence of the jury, but when so made without objection by the opposing party we know of no case in this state which has been reversed because of such error.
Affirmed.
Roberds, P.J., and Lee, Holmes and Ethridge, JJ., concur.