Bishop v. Mississippi Transp. Com'n

734 So. 2d 218, 1999 WL 27550
CourtCourt of Appeals of Mississippi
DecidedJanuary 26, 1999
Docket97-CA-00926COA
StatusPublished
Cited by4 cases

This text of 734 So. 2d 218 (Bishop v. Mississippi Transp. Com'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bishop v. Mississippi Transp. Com'n, 734 So. 2d 218, 1999 WL 27550 (Mich. Ct. App. 1999).

Opinion

734 So.2d 218 (1999)

Venice BISHOP, Individually and on Behalf of All His Cotenants, Appellants,
v.
MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.

No. 97-CA-00926COA.

Court of Appeals of Mississippi.

January 26, 1999.

*220 Gary Goodwin, Columbus, Attorney for Appellants.

J. Niles McNeel, Louisville, Attorney for Appellee.

BEFORE BRIDGES, C.J., PAYNE, AND SOUTHWICK, JJ.

SOUTHWICK, J., for the Court:

¶ 1. The Mississippi Transportation Commission filed an eminent domain petition in the Oktibbeha County Special Court of Eminent Domain. From a jury verdict awarding $8,083.64, the landowner Venice Bishop appeals. He alleges that the Commission's expert witness was not qualified to value timber, that accordingly a mistrial or peremptory instruction should have been granted, and that testimony by Bishop's expert regarding use of the property was improperly limited. We agree that the Commission never put on adequate evidence regarding value and that Bishop was erroneously restricted regarding his evidence. We reverse and remand for further proceedings.

FACTS

¶ 2. This suit resulted from expansion of Highway 25 near Starkville. The Commission sought to condemn 6.7 acres of property owned by Venice Bishop and others. Bishop wished to show that the highest and best use for the land, located about five miles from Starkville, was as rural residential land and that compensation of $80,750 was due. The Commission maintained that the property's best use was as timberland and put the value absent the standing timber at $3,025. The Commission's attempt to indicate the value of the timber was initially thwarted, but ultimately the court permitted testimony that with *221 the timber the property was worth $5,925. The jury awarded $8,083.64.

¶ 3. The land is part of a forty acre tract. The most utilized method of access is across the property of Mr. Lenon West. Bishop proffered testimony that should he wish to develop his land for residences Mr. West would have no objection to granting him an easement. Moreover, even though a written easement did not exist at the time of the trial, Bishop argued that an easement by prescription had matured. The Commission responded that what in fact existed was nothing more than permissive use and any opportunity to access the land across the property of Mr. West could be revoked at the discretion of Mr. West. The court ruled the evidence of an easement was irrelevant.

DISCUSSION

ISSUE 1: Absence of proper evidence by Commission on value

¶ 4. The Commission put on testimony from appraiser Lucy Griffin, an agency employee, regarding the value of the condemned property. Ms. Griffin testified that after analyzing three comparable sales of land she found this property was worth $450 per acre without assessing the timber value. Ms. Griffin stated she had no opinion as to the value of the timber and later testified she was "not an expert in timber value." The property had a maturing stand of timber on it. Indeed, the Commission argued that the best use of the property was to grow timber.

¶ 5. On redirect, the judge allowed Ms. Griffin to testify that the difference between the Commission's statement of values and her estimate, was the timber value. Her only expertise was as to the cleared land value, while someone else had provided the estimate of the timber value.

¶ 6. We start our analysis by noting that the condemnor has the burden of proving the value of the condemned property.

The reason for placing the burden on the condemnor is that if it offers no evidence of the value of the property taken there is no basis for awarding any damages and there could be no compliance with Section 17, Mississippi Constitution. Therefore, failure of condemnor to offer proof of the value of the property taken would require dismissal of the proceedings.

Mississippi State Highway Commission v. Fisher, 249 Miss. 198, 201-02, 161 So.2d 780, 781 (1964). The landowner has no evidentiary burden until a prima facie case is made by the Commission. In order to receive greater compensation, the party whose property is being condemned then must present evidence. Ellis v. Mississippi State Highway Commission, 487 So.2d 1339, 1342 (Miss.1986).

¶ 7. Ms. Griffin based her valuation of the timber on that of an expert timber cruiser who did not testify. The testimony of one expert witness may not serve as a conduit for hearsay about another expert's opinion. If the expertise of the testifying witness is such as to permit that witness's adoption of the statements of a similar expert, then the witness is not a mere conduit. Morley v. Jackson Redevelopment Authority, 632 So.2d 1284, 1293-94 (Miss.1994). Here the appraiser testified that she did not have the skills to value timber. Therefore she merely passed through the information from another expert. The Commission has therefore failed to support an appraisal of the entire property with evidence. At best, the Commission proved only the cut value of the land.

¶ 8. The Commission argues that Bishop invited the timber value testimony by Ms. Griffin by asking her to explain the Commission's statement of values. That statement valued the property at $5,925, while her appraisal of the bare land was $3,025. Seeking an explanation for a discrepancy in an opposing party's evidence is not opening the door to substantive evidence. *222 Her testimony remained unqualified expert opinion.

¶ 9. Ms. Griffin's comparisons to other sales did not involve timber value but rather bare land sales. Ms. Griffin's first comparison involved replanted cut over land which sold for $428 per acre. The second was just for the acreage and did not include the timber value. The price was $546 per acre. The third comparable sale was for $350 per acre but again, timber value was not considered as the property was subject to a lease by Weyerhaeuser for the timber rights. Based on these comparisons she estimated the Bishop property at $450 per acre not counting any timber value.

¶ 10. At the end of the Commission's case, Bishop moved for a mistrial for failure of the Commission to introduce proper evidence of the value of the land. We agree that a mistrial should have been granted, requiring the Commission to begin the proceedings anew. The Commission was proceeding under the "quicktake" provisions that permit title to be conveyed before compensation is set. Miss.Code Ann. § 11-27-85 (Supp.1998). Under the rights granted by that statute, an order was entered November 20, 1996 conveying the property to the Commission upon payment of 85% of the appraised value of the land. Even if subsequent proceedings determine the appraised value was woefully inadequate, title remains undisturbed. Miss.Code Ann. § 11-27-87 (Supp.1998). Therefore, had a mistrial been granted the Commission's use of the property could continue.

¶ 11. Our question is not the Commission's rights to the land, but its right to correct its evidentiary shortcoming at a new trial. Bishop argues that the Commission fumbled its only opportunity. After a mistrial was denied, Bishop presented evidence. He alleges that it became the sole valuation evidence and controls the outcome. Whether this is correct causes us to review the effect of our earlier conclusion that the burden of proof is on the Commission.

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Bluebook (online)
734 So. 2d 218, 1999 WL 27550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bishop-v-mississippi-transp-comn-missctapp-1999.