Summary
finding sufficient evidence to support an award of $5,000 where witnesses presented figures ranging from $2,000 to $15,000
Summary of this case from Williamson v. Lowndes CountyOpinion
No. 35746.
January 8, 1945. Suggestion of Error Overruled February 12, 1945.
1. EMINENT DOMAIN.
In proceeding to condemn land for highway purposes, it was province of jury to fix damage from conflicting evidence.
2. EMINENT DOMAIN.
Evidence sustained verdict for $5,000 damages for 35.1 acres taken for highway right-of-way of 1 1/2 miles across a farm.
3. EMINENT DOMAIN.
In condemnation proceeding, landowner cannot recover damages for specific injuries to the remaining land, but evidence of such injuries is competent if, but not unless, they would affect the market value of the remaining land.
4. EMINENT DOMAIN.
In condemnation proceeding, admitting evidence of specific injuries to remaining land such as cost of rebuilding and removing barns, silo, digging new pools, constructing fence, was not error, where landowner was careful to connect the specific items of cost with, and have witnesses consider them only as bearing upon, market value.
5. EMINENT DOMAIN.
The condemnor has burden of establishing damage caused by the taking.
6. EMINENT DOMAIN.
The question of prior interest and rate thereof, as element of damage, should have been submitted to and passed upon by jury in condemnation proceeding, and amount of verdict constituted total damage fixed by jury, and trial judge had no power to add thereto prior interest nor to fix rate of interest (Const., sec. 17).
ROBERDS, J., dissenting in part.
APPEAL from the circuit court of Monroe county, HON. THOS. H. JOHNSTON, Judge.
McFarland Holmes, of Aberdeen, for appellant.
The burden of proof as to the rightfulness of the taking was on the condemnor, but the burden of proof as to the value of the property taken was on the condemnee, the appellee here.
18 Am. Jur. 985, Sec. 342.
We do not think the jury correctly understood the measure of the damages in this proceeding. The measure of damages in a condemnation proceeding is the difference between the fair market value of the land before the taking and the fair market value of what remains after the taking. In other words, the verdict of the jury should be for the difference between the fair market value of the land before the taking, and the fair market value of what remains after the taking. Courts will not permit recovery for inconvenience, as it is so speculative and unsubstantial that it is not an element of actual damage and is not susceptible of proof with any degree of certainty. The expense of building fences on each side of the highway, rebuilding buildings, re-establishment of ponds, if reasonably necessary for the use and enjoyment of the remaining land, are questions to be determined by the jury, but the expense of constructing same is not to be considered as separate items of damage but must be considered by the jury under the rule that the measure of damages for the amount of the verdict to be awarded for the taking of the land condemned is "the difference between the fair market value of the whole tract immediately before the taking and the fair market value of that remaining immediately after the taking" without considering general benefits or injury resulting therefrom.
Mississippi State Highway Commission v. Hillman et al., 189 Miss. 850, 198 So. 565.
We feel sure that the jury in this case was confused because of the instruction on the burden of proof erroneously given the condemnee by the court, and the refusing to the condemnor of the instruction asked by it on the burden of proof, and because of the testimony of witnesses for the appellee allowed over the objection of the appellant, as to the replacement value of the silo and barn, the danger to the appellee's high priced cattle in arriving at the cost of fencing, and the far-fetched testimony as to the amount of water that would be impounded by the construction of the road and the damage it would do to appellee's land and silo. In our opinion, the verdict of the jury was excessive because of the above reasons, and it should not have been for more than $2000 to $2500.
The court erred in overruling appellant's motion to correct the judgment with reference to interest at the rate of 6 percent per annum being allowed from March 18, 1942, instead of from the date of the rendition of the judgment in the circuit court. Setting aside conventional interest which is allowed to spring into existence from a convention or contract all other interest is simply allowable as damages for the failure to pay money when due. Therefore, the money must be due and must be demandable in order to have legal interest charged against or inflicted upon the party owing the money. In the case at bar we call your attention to the fact that a jury of eminent domain in the justice of the peace court fixed the damages at $2500, but the appellee was not satisfied with this amount and appealed to the circuit court for a new trial, and the damages were not fixed until the jury brought in its verdict in the circuit court trial. No interest is properly chargeable against appellant until the amount of the damages is fixed by the jury in the circuit court, as any such damages or penalty covered by interest must have been considered by the jury in arriving at the amount of the damage done appellee.
State Highway Commission v. Wunderlich, 194 Miss. 119, 11 So.2d 437; State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345, 6 So.2d 468; Foster Co. v. Fulton Bag Cotton Mills, 159 Miss. 217, 131 So. 415; City of New Orleans v. New Orleans Land Co., 173 La. 71, 136 So. 91; 18 Am. Jur. 917, Sec. 277, et seq. and notes; 111 A.L.R., notes, pp. 1303-1307.
Paine Paine, of Aberdeen, for appellee.
The burden of proof on the issue of damages was on the condemnor.
Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565.
The condemnee is not entitled to recover damages for specific injuries to their remaining land, yet evidence of such injuries is competent if the injuries to the remaining land affected its market value.
Mississippi State Highway Commission v. Hillman, supra.
Interest on the amount awarded the condemnee is part of the just compensation to which a condemnee is entitled.
State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345, 6 So.2d 468; State Highway Commission v. Wunderlich, 194 Miss. 119, 11 So.2d 437; McNutt v. Orcutt, 211 Ind. 523, 199 N.E. 595, 7 N.E.2d 779; 18 Am. Jur. 912, Sec. 272; 96 A.L.R. 150; 111 A.L.R. 1304.
The court in the case at bar allowed interest on the judgment back to the date the land was condemned for two reasons, one being that that was the date at which it was determined by the jury that the land condemned and the damages to the remainder of the land was $5000, and second, for the reason that the appellant violated the constitutional rights of appellee in that it took possession of the land condemned without having first paid the original amount assessed by the jury in eminent domain proceedings. After this jury returned the verdict of $2500 the appellant did not pay this amount into court or even tender it to appellee, but went upon the property, took possession of it and actually built concrete culverts or drains thereon and required appellee to build fences to keep cattle off the right-of-way. The Constitution of the state expressly provides that private property may not be taken for public use without first paying just compensation therefor. And the word "first" was used in the Constitution to protect the person whose property was taken by requiring the just compensation to be first paid before the land was taken. Therefore, we say that the State Highway Commission, in going upon and appropriating this land without first paying the just compensation awarded by the jury occupied the position of trespassers and should not be allowed in this court to complain of the allowance of the interest back to the date the land was unlawfully appropriated to public use.
Code of 1942, Sec. 2763; Constitution of 1890, Sec. 17.
Argued orally by Thos. F. Paine, for appellee.
Appellee Treas owns a farm of 746 acres located two miles northwest of Aberdeen, Mississippi, on Highway 45. The State Highway Commissioner condemned a right-of-way across and near the middle of that farm a distance of a mile and a half, the land actually taken being 35.1 acres. The jury in the special court of eminent domain awarded Mr. Treas $2,500 damages, from which he appealed to the circuit court, where the jury returned a verdict for $5,000 damages, from which the Commission appeals here.
It is urged by the Commission that the evidence does not justify the amount of the verdict. The witnesses estimated the value of the land taken and the reduced value of that remaining at from $2,000 to $15,000. It was the province of the jury to fix the damage from this conflicting testimony and the evidence is sufficient to, and it does, support the verdict, and especially so in this case since the jurors themselves went upon and personally inspected and examined the lands.
Evidence was offered of specific injuries to the remaining land, such as the cost of rebuilding and removing barns, a silo, digging new pools, constructing three miles of fence along the new highway, etc., all of which would result, according to appellee, from the construction of the road as located. Appellant says the admission of this evidence was error. In Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565, 570, this court said: "The before and after taking rule being the measure of damages applicable to this case, it follows that the appellees cannot recover damages for specific injuries to their remaining land, but that evidence of such injuries is competent if, but not unless, they would affect the market value of the remaining land." Appellee was careful to connect these specific items of cost with, and have the witnesses consider them only as bearing upon, such market value. That testimony was brought within the foregoing rule in this case.
Appellee obtained an instruction telling the jury that "the burden of proof is on the State Highway Department on the issue of damages sustained by Charles Treas by the taking of the land condemned." Appellant says the burden is on the condemnor to establish the right to take but is upon the owner to show the extent of the damage caused by the taking, citing 18 Am. Jur. 985, Sec. 342. Some courts do place that burden upon the owner; others hold it is upon the condemnor. This court has adopted the latter view. Mississippi State Highway Commission v. Hillman, supra.
The judgment of the eminent domain court was rendered March 18, 1942; that of the circuit court October 28, 1943. The circuit court judgment bears interest at 6% per annum from the date of the eminent domain award judgment. Appellant contends that no past interest could be added to the circuit court judgment under the facts and proceedings in this case; appellee says the adding of such interest was proper.
The courts generally allow interest as part of the damage, or compensation, to which the owner is entitled when property is taken under the power of eminent domain, and in State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345, 6 So.2d 468, and State Highway Commission v. Wunderlich, 194 Miss. 119, 11 So.2d 437, we held that the Mississippi State Highway Commission is liable for interest in proper cases. However, there is great conflict as to the time from which interest is to be computed. "Thus, interest is variously allowable from the time of the taking, or entry of possession, or owner's loss of possession, or the appropriation, the time of the commencement of the proceedings, the time the report assessing the damages is returned, the time of the award, the date of the entry of possession or of the award, whichever is first, the time of the order of condemnation, the time of the judgment affirming the award, or from the time when the security required by the condemnation statute is given." 18 Am. Jur. 913, Sec. 272. In some states the question is regulated by statute. In other jurisdictions such dates may vary as between the damage for the land actually taken and the consequential damages, and in Georgia the time from which interest is computed depends upon the particular circumstances of each case. Annotations, 96 A.L.R. 155, et seq., and 111 A.L.R. 1304. The question has not been passed upon in this state, although in Williams v. New Orleans, M. T.R. Co., 60 Miss. 689, this court held that where a railroad company entered upon land and used it for a right-of-way without right, and after a number of years proceeded to condemn such land, but continued in possession without paying therefor, that the owner could elect to take the value of the land at the time of the original entry, with interest, or the value of the land as of the time of the action, without interest.
And the manner of ascertaining the interest as an item of damage is pertinent to this question. Some courts have added interest at the legal rate as a matter of law under the particular facts of the case. Shannahan v. Waterbury, 63 Conn. 420, 28 A. 611; Phillips v. South Park Com'rs, 119 Ill. 626, 10 N.E. 230; Schnull v. Indianapolis U.R. Co., 190 Ind. 572, 131 N.E. 51; Lough v. Minneapolis St. L.R. Co., 116 Iowa 31, 89 N.W. 77; Whitacre v. St. Paul S.C.R. Co., 24 Minn. 311; City of Minneapolis v. Wilkin, 30 Minn. 145, 15 N.W. 668; Sioux City R. Co. v. Brown, 13 Neb. 317, 14 N.W. 407; State v. Hamer, 211 Ind. 570, 199 N.E. 589. In other jurisdictions the question must be submitted to and passed upon by the jury. State ex rel. McNutt v. Orcutt, 211 Ind. 523, 199 N.E. 595, 7 N.E.2d 779; Hayes v. Chicago, M. St. P.R. Co., 64 Iowa, 753, 19 N.W. 245; Butte E.R. Co. v. Mathews, 34 Mont. 487, 87 P. 460; Routh v. Texas Tract. Co. (Tex. Civ. App.), 148 S.W. 1152; Diedrich v. N.W.U.R. Co., 47 Wis. 662, 3 N.W. 749; Minot v. Boston, 201 Mass. 10, 86 N.E. 783, 25 L.R.A. (N.S.), 311; Durham v. Davis, 171 N.C. 305, 88 S.E. 433.
In the case at bar it is uncertain from the record to just what extent the commission took, and the owner was deprived of, possession of the land, and to what extent such taking interfered with the use of the remaining lands, and the date of such taking and interference. It is admitted the Commission has not paid into court, or tendered to the owner, any amount of money. It is the view of a minority of the court, including the writer, that the proof does show the Commission took possession shortly after the eminent domain trial, and that it is clear in this case that the jury assessed the damage as of the time of the original condemnation proceeding, and that, since Section 17 of the Mississippi Constitution requires that "Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof," which was not done in this case, that the lower court was correct in adding to the jury verdict legal interest from the date of the eminent domain award. But a majority of the Court is of the opinion that the proof does not sufficiently show such taking, and that, in addition, the question of prior interest, and the rate thereof, as an element of damage, should have been submitted to and passed upon by the jury, and that the amount of the verdict herein constitutes the total damage fixed by the jury, and that the trial judge had no power to add thereto prior interest, nor to fix the rate thereof.
Judgment will, therefore, be entered here for appellee for $5,000, with legal interest thereon from October 28, 1943, the date of such judgment in the lower court.
Affirmed in part and reversed in part and judgment here for appellee.