Dykes v. STATE HIGHWAY COM'N OF MISS.

535 So. 2d 1349
CourtMississippi Supreme Court
DecidedNovember 30, 1988
Docket57657
StatusPublished
Cited by8 cases

This text of 535 So. 2d 1349 (Dykes v. STATE HIGHWAY COM'N OF MISS.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dykes v. STATE HIGHWAY COM'N OF MISS., 535 So. 2d 1349 (Mich. 1988).

Opinion

535 So.2d 1349 (1988)

Jimmy Earl DYKES
v.
STATE HIGHWAY COMMISSION OF MISSISSIPPI.

No. 57657.

Supreme Court of Mississippi.

November 30, 1988.
Rehearing Denied January 25, 1989.

*1350 Louie M. Bishop, Waynesboro, for appellant.

Mark S. Howard, Waynesboro, Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Kennety E. Crawford, Sr., Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and ANDERSON and ZUCCARO, JJ.

DAN M. LEE, Presiding Justice, for the Court:

On May 28, 1986, the State Highway Commission of Mississippi filed its application to condemn 11.92 acres of land belonging to one Jimmy Earl Dykes. The purpose of the taking was to provide a right-of-way for the proposed widening of Highway 84 into four lanes in Wayne County, Mississippi. The Commission took frontage along the existing two lanes of U.S. Highway 84 for a distance of 2,135 feet and with a depth of approximately 240 feet along the entire 2,135 feet. After trial in the Circuit Court of Wayne County, Mississippi, on July 10, 1986, at which time the appellant and appellee put on differing proof as to the value of the land taken, the jury returned a verdict of $10,000.

Feeling aggrieved by the verdict of the jury, Mr. Dykes appeals and assigns four assignments of error:

I. That the Trial Court Erred in Permitting Evidence to be Introduced, After Objections of the Appellant, of Benefits to be Derived by the Appellant to His Remaining Property because of the Construction of the Proposed New Highway Bordering the Remaining Property of the Appellant.
II. That the Trial Court Erred in Permitting the Appellee's Counsel to Argue to the Jury that the Jurors were Taxpayers of this State and that the Highway Department was Working for Them.
III. That the Trial Court Erred in Failing to Order an Additur or as an Alternative in Failing to Grant a New Trial.
IV. And for Other Errors to Be Assigned Upon a Hearing Hereof.

Finding merit in assignment of error number two, we reverse because the Commission was allowed to argue to the jury that they were taxpayers "and the Highway Department is more or less working for you as citizens." We also feel it appropriate to address certain issues raised in assignment of error number one because they may well arise upon re-trial; however, we do not find it necessary to address assigned errors three and four.

STATEMENT OF THE FACTS

Appellant, the State Highway Commission of Mississippi (hereinafter "the Commission") filed its petition against the Appellant, Jimmy Earl Dykes (hereinafter "Dykes") to condemn 11.92 acres of land for the purpose of the construction of an additional two lanes on U.S. Highway 84 in Wayne County, Mississippi. The proposed new highway took Dykes' frontage along the existing two lanes for 2,135 feet, with a depth of approximately 240 feet.

In calculating the total acreage, a disagreement arose between the appellant's and the appellee's witnesses as to the total amount. The appellee's witnesses stated that there were 50.69 acres in the plat. Appellant claimed that there were 56.0 acres. Despite this discrepancy, both parties described the land as rolling hills and hollows — typical Wayne County property — with seasonal streams, not much water, and with underground drainage structures. *1351 The property is located 5.5 miles from the City of Waynesboro, about three miles from Beat 4 School, and about three miles from Maynor Creek Reservoir. The land and area is served by the Whistler Water Association, a community water association.

A history of the property reveals that Dykes had owned the land since 1958. During that time, he had sold only one acre, in the northwest corner, in 1961 or 1962 for residential purposes. In the immediate area, new churches and residences have been built in the past years. The existing black-top road on U.S. Highway 84 serves as a street entrance for the schools, churches and residences.

Reviewing the surrounding area, Mr. Jerry Wallace, an appraiser for the Commission for approximately 13 1/2 years, testified that the highest and best use of the property was for growing timber. Mr. Wallace felt that the land taken and the remaining land was of the same value per acre. He was of the opinion that the total value before taking was $37,520, and that the remaining value after the taking was $29,645. Consequently, he believed that just compensation for the property taken was $7,875.

Contrary to this view, James N. Jeffcoat, a real estate appraiser and broker from Laurel, Mississippi, testified that the highest and best use of the property taken was for residential purposes. Mr. Jeffcoat believed that the 56 acres was worth $88,056 before the taking, the sum of $52,896 after the taking, and that just compensation was $35,760.

At the trial, over the objection of Dykes, evidence was offered to the jury of the proposed benefits to Dykes from the construction of the highway. More specifically, the Commission showed that appellant's highway frontage would be increased by an additional 210 feet. The Commission also brought into evidence proposed new driveways to provide access to Dykes' property. After hearing all the evidence, a duly empaneled jury returned a verdict in the amount of $10,000 in favor of Dykes, as "just, full, due and adequate" compensation due for the acquisition of the 11.92-acre tract by the Commission for public use.

Appellant's Proposition I.
That the Trial Court Erred in Permitting Evidence to be Introduced, After Objections of the Appellant, of Benefits to be Derived by Appellant to His Remaining Property because of the Construction of the Proposed New Highway Bordering the Remaining Property of the Appellant.

Dykes complains that the trial court was mistaken in allowing testimony of benefits that Dykes would derive from the construction of the proposed new highway. Dykes contends, "[t]here was evidence presented to the jury that the appellant would not only have the same footage as along the old highway, but that the footage would increase by 210 feet." In addition to the testimony concerning the additional frontage, the Commission also introduced evidence of proposed new driveways to Mr. Dykes' property.

In pointing out the lower court's alleged error, Dykes directs this Court's attention to § 11-27-21 Miss. Code Ann. (1972), which reads as follows:

In determining damages, if any, to the remainder if less than the whole of a defendant's interest is taken, nothing shall be deducted therefrom on account of the supposed benefits incident to the public use for which the petitioner seeks to acquire the property.

In support of this position set out by the Code, Dykes also cites State Highway Commission v. Chatham, 173 Miss. 427, 161 So. 674 (1935), where this Court stated:

It often happens that a resident property, as in the case before us, is substantially hurt in value by the location of a railroad or hard surface public road adjacent to the property. It more often happens that the value of the property adjacent to such public highway is enhanced thereby, but the rule in this state is familiar to all that when a part of the property so enhanced in value is to be taken for public improvement, no deduction *1352 is to be made out of the value of the remainder not taken.

Dykes cites us to similar holdings in Brown v. Beatty, 34 Miss. 227; Isom v. Mississippi Railroad Co., 36 Miss. 300; Penrice v.

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Bluebook (online)
535 So. 2d 1349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dykes-v-state-highway-comn-of-miss-miss-1988.