Opinion
No. 37175.
October 10, 1949.
1. Eminent domain — before and after market values — estimates of witnesses — inconveniences.
The comparative before and after market values of a farm is the true measure of damages for the taking of a strip of land across a part of it for highway purposes, and inconveniences to the present owner may not be estimated as an independent element of the damages, but may be considered as bearing upon the sale or market value of the divided farm.
2. Eminent domain — trial — testimony of witnesses as to value — reference by them to inconvenience, when not reversible.
It is recognized that it is difficult to so confine witnesses in their estimates of the before and after market values, that they will not at all refer to inconveniences, but when the landowner in his proof makes an earnest effort to limit the estimates to the before and after market values, the fact that some witnessess referred to present inconveniences will not require a reversal when it is clear that their answers bore upon the effect of such inconvenience upon the before and after market value of the remaining property plus the value of the property actually taken.
3. Eminent domain — damage to separate and independent parcels of land.
When a portion of a parcel of land is taken for public use the owner cannot recover for injury to separate and independent parcels which he may own in the same neighborhood; but the fact that the parcels were bought at different times and are separated by an imaginary line or by a highway, railroad or canal, does not make them separate and independent within the stated rule when the parcels are actually used and occupied as a unit, unity of use being the principal test.
4. Eminent domain — damages to the residue as a result of the taking of a part.
Where only a part of a parcel of land is taken in eminent domain the owner is entitled to recover damages not only for the part taken but also for injuries accruing to the residue from the taking.
5. Eminent domain — unity of use, what constitutes.
In order that two or more parcels of land may constitute a unit for the assessment of damages in eminent domain, there must be such a connection or relation of adaptation, convenience, and actual and permanent use, as to make the enjoyment of the parcel taken reasonably and substantially necessary to the enjoyment of the parcels left, in the most advantageous and profitable manner in the business for which they are jointly used.
6. Eminent domain — unity of use, case in point.
When the defendant in eminent domain owned a parcel of 40 acres and another parcel of 44 acres one-fourth of a mile to the east and he had purchased and owned also a strip of land fifty feet wide north and south connecting the two parcels, which strip had been purchased so as to more conveniently operate the two large parcels in his business of farming, dairying, and cattle raising, and he cultivated, farmed and grazed both tracts using the two as a unit, and there was condemned for highway purposes a hundred foot way across the connecting strip, the entire property was properly considered as a unit for the assessment of damages.
7. Eminent domain — damages — when not excessive.
When the proof shows that the fifty foot strip connecting two parcels of land used, by means of the strip, as a unit in the operations of the owner's business had been cut across by condemnation for a public highway and that the highway had been so constructed as to render the passage strip between the two tracts impracticable of further use, as the jury could see upon its view of the premises which was had, and the estimates of the disinterested competent witnesses placed the damage at a higher sum than that allowed by the jury, a verdict of $850 would not be set aside as being the result of bias or prejudice or as against the overwhelming weight of the evidence.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Scott County; Percy M. Lee, Judge.
John M. Kuykendall, Assistant Attorney General, for appellant.
The rule stated in Baker v. Mississippi State Highway Commission, 204 Miss. 166, 37 So.2d 169, is particularly applicable here. Same is summarized in the synopsis — "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 the legal damage and the extent thereof." While it is true that this is an eminent domain proceeding and that case was a case brought by a property owner under the self-executing Section 17 of the Mississippi Constitution of 1890 the property involved in each occupies exactly the same status. Here no part of the east or west tracts of Mr. Dodson's property was being taken by the new highway. A part of the narrow fifty foot strip was being taken and these proceedings were brought to acquire a part thereof. The burden was on the defendant here to show, if he could, that other property of his was actually being damaged and the extent thereof, by these proceedings.
In this case, there were, of course, severance damages. Such damages were the damages to the remaining part of the fifty foot tract of land after the part had been taken therefrom for the highway. The witness for the Highway Commission testified that the severance damages were negligible. With reference to the east and west forty acre tracts of the defendant there could be no claim for severance damages because the same were severed before this highway was laid out or this suit brought. The only testimony by any of the defendant's witnesses which could be said to cover the item of severance damages is the additional testimony of Witness Stroud appearing on page 109 of the record. He there stated that if he was going to sell the property he would have to take an additional $200.00. In other words, his opinion was, that a sale of the Dodson property, after the taking, would bring $200.00 less. Since $200.00 is the amount Mr. Dodson paid for the narrow fifty foot strip Mr. Stroud's opinion evidently was that the taking of the portion necessary for the highway from the narrow fifty foot absolutely no other testimony in the record by any of the witnesses for defendant as to severance damages to the property taken or remaining of the fifty foot tract.
Despite the fact that the Supreme Court in reversing this case on the previous occasion expressly pointed out that testimony of witnesses concerning the personal inconvenience to which the owner of the property might be put by the construction of this highway must be excluded, the record of this case on the second trial is almost identical to the first one in this respect.
The testimony of Witness John Ware, and all of the other witnesses for the defendant, was based entirely on the theory that Mr. Dodson's farming operations would be damaged certain sums as a result of the construction of the new highway. The only damage of this nature which they explained was that growing out of taking cattle from one tract of land to the other. Such person inconvenience was ruled inadmissible in the case of Mississippi State Highway Commission v. Smith, 32 So.2d 268, and, of course, had likewise been ruled inadmissible in this case on the first appeal. Such matters are too speculative and in addition whatever inconvenience anyone may encounter from crossing a public highway is an injury of that type suffered by the general public for which there is no compensation. Danger to man and beast prospective on the use of the highway by motor vehicles is not a proper element of damage. State Highway Commission v. Day, et al, 181 Miss. 706, 180 So. 794.
In this case the Highway Commission actually took only six one-hundredths of an acre of land yet there is now a jury verdict outstanding in the amount of $850.00. This verdict is so excessive as to be absurd. If any rural property owner was legally entitled to $850.00 for six one-hundredths of an acre taken from him for a highway where the severance from the remaining land is only from a fifty foot frontage on either side of the road then the cost of right-of-way for highways would be astronomical. On the other hand, if the measure of damages in a condemnation proceeding was as unlimited as the interpretation of same in this trial every landowner in a community, whether the new highway would touch his property or not, could get in on the State's eminent domain jack pot by simply buying a narrow strip of land across his neighbor's property which is to be crossed by the highway. But the measure of damages which has been so clearly stated over and over by our courts was never intended to be unlimited as here construed. Where it appears from the record that prominence was given to evidence admitted erroneously even though there was other evidence which was competent it cannot be said with confidence that same was harmless. State Highway Commission v. Dornbusch, 187 Miss. 653, 193 So. 783. The amount of the verdict here indicated acceptance by the jury of the improper measure of damages. State Highway Commission v. Smith, 187 Miss. 613, 192 So. 448.
Frank F. Mize, for appellee.
The appellant seemingly contends that there was no unity of property within the rule laid down in 29 C.J.S. 982, "there must be such a connection or relation of adaption, convenience and actual and permanent use as to make the enjoyment of the parcel taken reasonably and substantially necessary to the enjoyment of the parcels left, in the most advantageous and profitable manner in the business for which they are used. If the separate tracts of which a part of one is taken are not put to a joint use, they cannot be considered as one parcel in assessing damages to the land not taken." This is a sound rule and applied to the case at bar we respectfully submit that Mr. Dodson's land constituted a unit, one farm, 44 acres west of old highway 35, 35 acres east of old highway 35, connected by a fifty foot strip of land leading from the 44 acres west of the highway and the 35 acres east of the highway. The evidence shows that Mr. Dodson owned these two tracts back in 1946 when he purchased from his father-in-law, Mr. Hall, this 50 foot strip in order that he might have free passage from one part of his farm to another part of his farm; the evidence further showed that Mr. Hall, the father-in-law, was advanced in years and that Mr. Dodson in order that his farm might not be cut into or access from one block to another cut off, purchased the fifty foot strip for the sole purpose of having free access to both blocks of his farm. The evidence further shows that although the 50 foot strip was not actually under fence as to the south line of the 50 foot strip that Mr. Dodson used it constantly in his farm activities, in going to and from his home, to his field and pasture. The evidence further shows that the pond about which so much is said in the record was constructed partly on the 50 foot strip and partly on the lands owned by Mr. Hall, father-in-law of appellee Dodson, and we think can be reasonably assumed that this pond would be in common between Dodson and his father-in-law. In any event, Dodson could not be dispossessed by any successor in title of his father-in-law to the 50 foot strip which was purchased for the sole purpose of being used in connection with his farm and we believe that appellees have unquestionably shown a unity of use between the 50 foot strip of land and the two blocks, the 44 acre tract and the 35 acre tract.
Since from a reading of the record in this case it is obvious that appellees own 35 acres on one side of the highway and 44 acres on the other side of the highway connected by a 50 foot strip purchased for the sole purpose of connecting the two blocks of his farm in order that subsequent conveyances of title to adjoining lands would not hinder him in the operation of his farm, the next question is — was appellee's farm, that is to say the fair market value diminished by the separation of the two tracts? Separation means "to destroy the connection of and remove from another, to be or become disconnected."
As shown by the evidence the 50 foot strip east of the highway is of no value whatever except as a passageway to the pasture and cultivatable lands east of the highway, but as passageway in connecting the two blocks it is of great value to the farm unit. The evidence shows, as disclosed by the record, that at the point where the highway crosses the 50 foot strip there has been constructed necessarily an unsurmountable dump and appellees have to pass over lands of their neighbors in order to use the 50 foot right of way.
It will be borne in mind that when the first jury in the eminent domain court viewed the premises, the highway had not been constructed, that when the second jury viewed the premises the highway had not been completed but was under construction, and that when the third jury viewed the premises the highway had been practically completed. The first jury awarded $500.00, the second jury awarded $750.00, and the last jury $850.00. Without regard to the evidence of various witnesses who were competent to testify as to the damages to this farm, the three juries viewed appellee's farm and the highway crossing the 50 foot strip and returned the verdicts hereinbefore mentioned. Isn't it a fact that the Legislature intended when they provided for the viewing and inspection of premises in condemnation proceedings that the jury should exercise its sound judgment in fixing reasonable compensation? In this case the trial judge necessarily accompanied the juries in their inspection of the premises and upon a return of their verdicts on motion of the appellant refused to disturb the verdict of the jury even though appellant charged that their verdicts were grossly excessive.
There can certainly be no bias, passion or prejudice in this cause as the court will determine from the reading of the record. All of the witnesses with the exception of Mr. White fixed the value of the land and the damages occasioned by the taking of said land in excess of the amount fixed by the jury. All of the witnesses for appellees duly qualified as witnesses to the fair market value of the premises before and after the taking and with this testimony in addition to the actual viewing of the property and inspection by three juries we believe that the judgment should not be overthrown.
Appellant condemned for a public highway less than one acre across a strip of land belonging to appellees. The jury assessed the damages at $850.00, and the Highway Commission appeals.
Appellant says the jury considered improper elements of damage. On the former appeal of this case to this court ( 203 Miss. 10, 33 So.2d 287, 288) one ground of reversal was that the record then showed that (Hn 1) the jury in that trial took into consideration the inconvenience to the existing owner in driving his cattle and stock over, and in going to and from a part of his farm across the proposed highway. The court said such inconveniences constituted proper elements for the jury to consider as bearing upon the sale value of the divided farm, "but the appellee's witnesses did not confine themselves to such facts in estimating what this fair value would be but placed their estimate on their idea of what damage for these inconveniences to the present land-owner would be." (Hn 2) The court noted that it would be a difficult matter to prevent witnesses testifying as to such inconvenience to the present owner. On the retrial of the case, the evidence was confined as nearly as is practicable to the comparative before and after market values of the property. It is evident the property owner was making an earnest effort to limit the questions and answers to such value. While it is true that in some of the answers given by the witnesses they referred to present inconvenience, it is clear the questions to, and the answers given, by the witnesses bore upon the effect of such inconvenience as it affected the before and after market value of the remaining property, plus the value of the property actually taken. That was the correct rule in this case. Baker v. Mississippi State Highway Commission, 204 Miss. 166, 37 So.2d 169; Mississippi State Highway Company v. Dodson et al., supra.
Appellees owned two tracts of land — one tract of 44 acres, practically all of which lies west of old highway 35, and another tract of 40 acres one fourth of a mile east of the first tract. A small part of the first tract was east of the old road — in other words, the old road runs through a part of the first tract — but that tract does not touch the new road, which new road was constructed some three hundred feet east of the old road opposite the west tract of appellees. The east forty-acre tract does not touch either the old or the new road. In estimating the damage, the witnesses treated both tracts as one farm, or agricultural, unit. Appellant says that was error; that the two tracts are entirely separate and no damage to either tract could be taken into consideration by the jury; that the only element of damage involved is the value of the small parcel actually taken by appellant. The proof shows that on February 27, 1946, before this condemnation proceeding was begun, appellees purchased a strip of land fifty feet wide north and south, extending from the west to the east tract, the deed showing a consideration of $200.00; that he did this the more conveniently to operate the two tracts; that he was engaged in farming, dairying and cattle raising; that he bought that strip for the purpose of driving cattle, stock, and transporting farm machinery, and moving crops thereover from one tract to the other; that he cultivated, farmed, and grazed both tracts, using the two as one unit. The land condemned is a one hundred foot way across the connecting fifty foot strip, the new road crossing the strip some two to three hundred feet east of the west tract and some 1020 feet west of the east tract.
In 18 Am. Jur., Page 910, Sec. 270, the rule applicable to this situation is stated to be: (Hn 3) "When a portion of a parcel of land is taken for the public use, the owner is entitled to recover for the injury to the remainder of the parcel only, and cannot recover for injury to separate and independent parcels of land which he may happen to own in the same neighborhood. In determining what constitutes a separate and independent parcel of land, when the property is actually used and occupied, unity of use is the principal test, and if a tract of land, no part of which is taken, is used in connection with the same farm, or the same manufacturing establishment, or the same enterprise of any other character as the tract, part of which was taken, it is not considered a separate and independent parcel merely because it was bought at a different time, and separated by an imaginary line, or even if the two tracts are separated by a highway, railroad, or canal." Again, in 29 C.J.S., Eminent Domain, § 139, page 976, it is said: (Hn 4) "Where only a part of a tract, parcel, or lot is taken in the exercise of the power of eminent domain, it is generally recognized that the owner is entitled to recover damages not only for the part taken but also for the injuries accruing to the residue from the taking." And at page 982, Section 140, a definition of a unit of property is given in these words: (Hn 5) "To constitute a unity of property within the rule, there must be such a connection or relation of adaptation, convenience, and actual and permanent use as to make the enjoyment of the parcel taken reasonably and substantially necessary to the enjoyment of the parcels left, in the most advantageous and profitable manner in the business for which they are used. If the separate tracts of which a part of one is taken are not put to a joint use, they cannot be considered as one parcel in assessing damages to the land not taken."
(Hn 6) Applying the above rules to the facts of this case, we think the two tracts here involved constituted one unit for agricultural, dairying, and cattle-raising purposes. Both tracts were used for those objects and the strip in question was bought for the very purpose of doing that. Certainly this connecting approach was of great convenience and value for such use.
(Hn 7) Thirdly, it is urged that the amount of damage found by the jury is greatly in excess of the actual damage. Regardless of the personal opinion of any member of the court, the question is whether, under the proof in the record, we can judicially say it is so excessive as to call for a reduction here of the amount or a reversal and remand for another jury to pass upon the question. As to the evidence on behalf of condemnor only one witness testified as to the damage. He was an engineer employed by appellant. He estimated the damage at not over fifty dollars. That was for the land actually taken. He said the remaining lands had suffered no damage whatever in his judgment. On that question, the following witnesses testified for appellees:
Dodson, the owner, explained why the connecting strip had been purchased; how it had been used to operate the two tracts, and why the road which had been constructed across the strip had interfered with such operation. He, and other witnesses, said the new road bed was some six feet high, not adding to that the depth of the ditches on either side; that it was impossible to cross that road with cattle, stock, farming equipment, and machinery. He said, without dispute, that in going from his home, located on the west tract, to the east tract, he first had to travel south from his home some half mile to get to a crossing of the new road, and then, of course, come back north the same distance to get to the east tract, and, even then, he necessarily had to go over the land of other persons. In this connection, appellant argues with force that before the new road was constructed Dodson had to cross the old road in going from the west to the east tract. That was mentioned in the opinion on the former appeal of the case to this court. However, it is explained in this record, and the photographs show, that the old road ran right near, and just to the east, of the residence of Dodson; that the road was almost flat to the natural ground, and the physical situation presented no difficulty in crossing it to get onto the fifty foot strip. Beard, a merchant at Harpersville, some two and a half miles south of the residence of Dodson, testified that he was familiar with the physical situation, knew the value of lands in that section, and that the difference in the before and after market values would be, in his judgment, not less than $1200.00. He estimated the fill of the new road to be eight feet and explained the difficulty of getting from one tract to the other. Stroud, a farm operator, a former land appraiser for the Federal Land Bank, a man with long experience in valuing lands in that section of the State, who was well acquainted with the lands in question, and the physical situation resulting from the construction of the road, estimated the damage at $1300.00.
Ware, residing within a mile and a half of the land in question, a farmer for twenty-five years and for that length of time familiar with the Dodson land, said the difference between the before and after values was at least $1000.00. So eliminating the testimony of Dodson himself, we have three disinterested, unimpeached witnesses, familiar with the situation, thoroughly acquainted with values, all estimating the damage at considerably more than that fixed by the jury; whereas condemnor had one witness, an employee, who estimated the damage.
In addition to that, the jury went upon the scene, observed the conditions, heard evidence there taken, the witnesses pointing out lines and objects upon the ground. They saw the detriments and inconveniences to the property and its occupants. And, it may be observed that this was after the new road had actually been constructed.
Further, it is in the record and not unimportant that this is the third time a jury has passed upon the question of damage. The first jury awarded $500.00; the second $750.00; and the present jury $850.00. Apparently the first two jury inspections were made before the construction of the road. The jury in this case had the benefit of the physical appearance created by the final completion of the road. We believe it is evident, under these circumstances, that this court cannot say the verdict of the jury was the result of bias or prejudice or against the overwhelming weight of the evidence.
Affirmed.