Opinion
No. 43263.
January 25, 1965.
1. Eminent domain — damages — before and after rule.
Damages in eminent domain proceeding are measured by before and after value of land.
2. Eminent domain — damages — instructions speculative, misleading.
Instruction that easement being taken by condemnor would be assessed to condemnor by state and county, and that, after easement had been taken, condemnees could apply to tax assessors and obtain reduction in assessment for their remaining land was misleading and erroneous.
3. Instructions — comment on evidence.
Subjects which are relevant as testimony are not thereby rendered appropriate for instructions.
4. Eminent domain — damages — evidence — market value.
Every factor affecting market value of property condemned may be put in evidence, and ultimate issue is extent of their effect on total evaluation.
5. Eminent domain — damages — instructions — special comment on evidence.
Items of damages in eminent domain proceeding should be left to testimony and argument rather than special comment in instructions.
6. Eminent domain — damages — instructions — comment on evidence — misleading, argumentative.
Instruction that jury could not award condemnees any amount for damages resulting to their land from presence of preexisting easements was misleading and argumentative, and violated statutory prohibition against comments on testimony. Sec. 1530, Code 1942.
7. Eminent domain — instructions — speculative, misleading.
Instruction that condemnor could not prevent condemnees from having full and free access to and across right-of-way being taken was erroneous, since access was limited by dominant easement, as against subservient estate of condemnees.
8. Eminent domain — instructions — speculative, misleading.
Instructions that if condemnor failed to exercise its easement rights in reasonable manner, condemnees would have legal right to require them to exercise such rights in a reasonable manner; and that if condemnor did not, condemnees would have right to enjoin condemnor, were speculative, misleading, and should not have been given.
9. Eminent domain — instructions — speculative, misleading.
Instructions that condemnor's rights would be defined in final judgment, and that rights taken by condemnor would not create cloud on title to condemnees' remaining land, were speculative, misleading, and should not have been given.
10. Eminent domain — instructions — sympathy, prejudice — erroneous.
Instructions which referred to rights described in eminent domain petition, and which contained superfluous references to sympathy and prejudice, should not have been given.
11. Instructions — comment on evidence.
Instruction which singled out for particular comment observations made by jury when it viewed land sought to be condemned, was erroneous.
12. Instructions — applicability to issues — to evidence.
Instructions should be related to issues, should not single out or comment on specific evidence, and should have some basis in testimony, evidence, and issues.
13. Instructions — argumentative, confusing.
Argumentative instructions are not only confusing to jury, but put trial court in position of arguing case for respective litigants.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Lauderdale County; ARLO TEMPLE, J.
Dunn Singley, Meridian, for appellants.
I. Cited and discussed the following authorities: Burt v. State, 72 Miss. 408, 16 So. 342; French v. State, 63 Miss. 386; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Gurley v. State, 101 Miss. 190, 57 So. 565; Harrison v. Gatewood, 211 Miss. 121, 51 So.2d 59; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426; Mississippi State Highway Comm. v. Stout, 242 Miss. 208, 134 So.2d 467; Mississippi State Highway Comm. v. Taylor, 237 Miss. 847, 116 So.2d 757; Moak v. Black, 230 Miss. 337, 92 So.2d 845; New Orleans J. G.N.R. Co. v. Statham, 42 Miss. 607; Pevey v. Alexander Pool Co., 244 Miss. 25, 139 So.2d 847; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Wheeler v. State Highway Comm., 212 Miss. 606, 55 So.2d 225; Secs. 9826, 9829, 9833, Code 1942; 44 Am. Jur., Quieting Title, Sec. 11 p. 10; 53 Am. Jur., Trial, Secs. 541, 566, 591, 593 pp. 432, 447, 467, 468.
Wilbourn, Lord Williams, Meridian, for appellee.
I. Cited and discussed the following authorities: Burt v. State, 72 Miss. 408, 16 So. 342; City of Jackson v. Landrum, 217 Miss. 10, 63 So.2d 391; Council v. Duprel, 250 Miss. 269, 165 So.2d 134; Ellis v. Ellis, 160 Miss. 345, 134 So. 150; French v. State, 63 Miss. 386; Gurley v. State, 101 Miss. 190, 57 So. 565; Harrison v. Gatewood, 211 Miss. 121, 51 So.2d 59; Illinois Central R. Co. v. LeBlanc, 74 Miss. 650, 21 So. 760; Jefferson v. Denkmann Lumber Co., 167 Miss. 246, 148 So. 237; Lusby v. Kansas City, M. B.R. Co., 73 Miss. 360; Mississippi Power Co. v. City of Laurel, 201 Miss. 144, 28 So.2d 750, 29 So.2d 313; Mississippi State Highway Comm. v. Brown, 176 Miss. 23, 168 So. 277; Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 195 So. 679, 198 So. 565; Mississippi State Highway Comm. v. Stout, 242 Miss. 208, 134 So.2d 467; Mississippi State Highway Comm. v. Treas, 197 Miss. 670, 20 So.2d 475; Mississippi State Highway Comm. v. Williamson, 181 Miss. 399, 179 So. 736; New Orleans J. G.N.R. Co. v. Statham, 42 Miss. 607; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Rasberry v. Calhoun County, Mississippi, 230 Miss. 858, 94 So.2d 612; Wheeler v. Mississippi State Highway Comm., 212 Miss. 606, 55 So.2d 225; Secs. 1530, 9770, 9815, 9825, 9829, 9833, 9835, Code 1942; Rule 6(2), Supreme Court Rules; 20 C.J. 773; 1 Alexander, Mississippi Jury Instructions, Secs. 223, 2166; 2 Thompson, Trials, Sec. 2463 p. 1817.
Mississippi Power Company, appellee, instituted this eminent domain proceeding in the County Court of Lauderdale County, against Mrs. Corine Wilson White and Mrs. Etta Harrington Wilson, appellants, seeking to condemn an easement over certain lands owned by appellants for the purposes of constructing, maintaining and operating high voltage power lines. After trial before a jury, the county court awarded damages to appellants of $2,500, and that judgment was affirmed by the circuit court.
Appellants own two quarter-quarter sections of land in Lauderdale County. The two tracts (called forty acres, although they have slight variations in acreage) abut one another in an east-west direction. The power company sought to condemn a perpetual easement of one hundred feet in width. Most of the power line right-of-way traverses the east forty, and cuts across only the southeast corner of the west forty. Exclusive of highway, the easement covers four and three-hundredths acres. The land is about one-fourth of a mile north of the city limits of Meridian. There were preexisting easements across this land, in Plantation Pipeline Company, Colonial Pipeline Company, and Southern Natural Gas Company, with underground pipelines, and also a road over the east part of the east forty, owned and maintained by Lauderdale County. The maximum distance of the Plantation right-of-way to the center line of the power line is fifty-two feet. The proposed right-of-way is for public necessity and use. We do not consider the assignment of error as to inadequacy of damages, since the case must be reversed and remanded because of eight erroneous instructions granted the power company.
(Hns. 1, 2) Petitioner's instruction number 2 advised the jury that all property belonging to it, including the easement being taken, is assessed to petitioner by the state and county, at the same rate other property is assessed to other taxpayers, and that, after the easement has been taken, "it will be the right of the defendants . . . to apply to the tax assessor . . . for an appropriate reduction in the assessment of their lands." Assuming the easement taken would be assessed to the company, this instruction was misleading. Damages are measured by the before and after value of the land. It is pure speculation to assume that defendants could apply to the tax assessors and obtain a reduction in the assessment of their remaining land.
(Hns. 3-6) The company's instruction 3 stated that there were two pipeline easements across the land owned by Plantation, and others by Southern Natural Gas, Colonial Pipeline, and Lauderdale County, and in determining the fair market value of defendant's land before the taking, "you must take into account" the pipeline easements and "the increase or decrease in the value of defendant's land before the taking which results from" such easements, and the jury may not award to defendants any amount for damages resulting to their land from the presence of the preexisting easements. The issue in this case was quite simple: The amount of damages suffered by defendants because of the taking. The method of measuring them can be simply stated. Subjects which are relevant as testimony are not thereby appropriate for instructions. Every factor affecting market value may be put in evidence, and the ultimate issue is the extent of their effect upon such total evaluation. Instruction 3, however, singles out the several easements for special comment. It points up the several items of damages, which should be left to the testimony and argument. State Highway Comm. v. Stout, 242 Miss. 208, 222, 134 So.2d 467, 472 (1961); Wheeler v. State Highway Comm., 212 Miss. 606, 55 So.2d 225 (1951). It violates Mississippi Code Annotated section 1530 (1956), which prohibits comments on the testimony, and is misleading and argumentative.
(Hns. 7-9) Instruction 4 was also error: It stated that company could not prevent defendants "from having full and free access to and across the right-of-way," although manifestly this access was limited by the dominant easement, as against the subservient estate of appellants. Instructions 5 and 6 stated that, if petitioner failed to exercise its easement rights in a reasonable manner, defendants would have a legal right to require them to exercise such rights in a reasonable manner; and if petitioner did not, defendants would have the right to enjoin petitioner. Neither should have been given, because they are speculative, misleading, and wholly inapposite to the issue in this case. The same observations apply to instruction 9, which advised the jury that petitioner's rights would be defined in the final judgment, and the rights taken by petitioner "will not create a cloud upon the title of the defendants' remaining land."
(Hn 10) Instruction 13 should not have been given: It referred to the rights described in the petition, and contained superfluous references to sympathy and prejudice. (Hn 11) Instruction 10 was error, since it singled out for particular comment observations made by the jury when it viewed the land.
(Hn 12) These instructions dealt with everything except the precise issue in the case, the amount of damages suffered by appellants as the result of the taking. Instructions should be related to the issues, not single out or comment on specific evidence, and should have some basis in the testimony, evidence, and issues. (Hn 13) Argumentative instructions are not only confusing to the jury, but put the trial court in the position of arguing the case for the respective litigants. See Alexander, Mississippi Jury Instructions §§ 51 et seq. (1953).
Reversed and remanded.
Kyle, P.J., and Gillespie, Rodgers and Patterson, JJ., concur.