Mississippi State Highway Commission v. Calhoun

190 So. 2d 865, 1966 Miss. LEXIS 1408
CourtMississippi Supreme Court
DecidedOctober 10, 1966
DocketNo. 44062
StatusPublished

This text of 190 So. 2d 865 (Mississippi State Highway Commission v. Calhoun) 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
Mississippi State Highway Commission v. Calhoun, 190 So. 2d 865, 1966 Miss. LEXIS 1408 (Mich. 1966).

Opinion

BRADY, Justice:

Appellant, Mississippi State Highway Commission, filed a petition to condemn for highway purposes two parcels of land containing 19.21 acres, more or less, in a special court of eminent domain of' the Second Circuit Court District of Carroll County. On September 23, 1965, in that court, R. L. Rosamond presiding, the jury returned a verdict assessing the damages occasioned by the taking of the property of appellees in the sum of $16,500. The Highway Commission appealed to the circuit court, where the judgment of the special court of eminent domain was affirmed. From that judgment in favor of John C. Calhoun, et ux., Ura Maxine Calhoun, this appeal is prosecuted. The record discloses the following relevant facts.

Mr. and Mrs. Calhoun are the owners of a hundred acre farm, more or less, located approximately four miles southwest of the town of Vaiden, in Carroll County, Mississippi. The appellant condemned 18.79 acres of appellees’ land for the right-of-way of U. S. Interstate Highway 55, and 0.42 acre for the improvement of a channel for water drainage purposes. Extending through appellees’ land, the proposed highway right-of-way proceeds in a general north to south direction so that on the west side of the right-of-way 10.3 acres are severed, and on the east side of the right-of-way 70.9 acres remain.

The record clearly reveals that the ap-pellees’ property is highly developed for row crop operation and that the appellees are now using it in the most lucrative and productive manner. One of appellant’s appraisers, T. I. Carroll, conceded that there were no sales of land which could be compared with appellees’ land. Appellees used their land for the production of cotton, corn and soy beans. The proof in this case shows that appellees’ farm is an improved farm, and appellant’s witness, Mr. Carroll, specified as to the improvements, listing Mr. Calhoun’s house, another house and a tenant house, a two car garage, an equipment shed, a barn, butane gas system, wells and various other little outhouse buildings. All of these improvements were located on the west side of the proposed highway. [866]*866There are no improvements on the tract of 70.9 acres east of the proposed new highway.

Appellant’s witness, Mr. Carroll, further testified that of the 70.9 acres, appel-lees had 10.54 acres in wooded and open pasture land. It is evident that the ap-pellees will not have access to the 70.9 acres of farm and pasture land except by utilizing Highway 35 at Vaiden, Mississippi. The record fails to indicate the exact distance that road is north of the 10.3 acres lying west of the proposed highway. The appellees will have to go under the new proposed Highway 55, utilizing the county road, in order to reach that portion of their land situated east of the highway, as was testified to by appellant’s witness, W. C. Briggs, Assistant District Construction Engineer. There are no improvements on the 70.9 acres east of the highway which formerly could be utilized by the appellees in conjunction with the 10.3 acres where their home and all improvements are situated west of the proposed highway. Witness Carroll for the appellant estimated the damage occasioned by the need for constructing fences to be $800 for a fence fifty-two hundred and some odd feet in length. He estimated the cost of having to construct a pond to be $200, and he valued the damage from splitting the land into two parcels to be $6,000; he estimated the value of the land taken to be $3,800, so that, together with the easement, Carroll’s estimate of the damages was $10,875.

The record further discloses that the highway proper will extend completely through appellees’ land, and that appellant will construct a fill 700 feet long which will extend through appellees’ cotton land. The fill will vary from ground level to a height of 27 feet on the north end where the road leaves appellees’ land. The width of the fill will vary, depending upon its height.

Between the two lanes carrying north and southbound traffic, there is a median which is used for drainage purposes. The record discloses also that a meandering creek on the south side of appellees’ land is going to be straightened and that this will tend to precipitate water which will flood and deposit residue on appellees’ land which also can cause erosion.

The appellant offered two witnesses who gave their opinions as to the fair market value of the land prior to the taking and the fair market value of the property remaining after the taking. Appellees offered four witnesses as to the value of the land, including the appellee, John C. Calhoun.

Witness For Appellant: Before Taking After Taking Damages
T. I. Carroll $41,500 $30,700 $10,875 (Includes $75 for 0.42 acre taken for easement.)
Sidney Branch 23,800 17,595 6,205
For Appellees: L. K. Moore, Jr. 40,915' 24,590 16,325
Odell Leonard 34,000 14,000 20,000
D. B. Sanders 33,450 15,700 17,750
John C. Calhoun 35,000 15,000 20,000

[867]*867All witnesses for the appellant and appel-lees used the before and after rule in reaching their estimates of the values of the land taken and the damages incident thereto. The jury viewed the premises and testimony was there taken.

After receiving instructions to which no objections were made, the jury returned a verdict in the sum of $16,500. Appellant filed a motion for a new trial, which was overruled.

There is but one issue in this cause, and that is whether or not the verdict of the jury is so grossly excessive as to evince bias, passion and prejudice. Appellant in his brief cites, in support of his contention that the verdict is so grossly excessive as to evince bias, passion and prejudice, the following five cases: Mississippi State Highway Commission v. Roche, 249 Miss. 792, 163 So.2d 874 (1964); Mississippi State Highway Commission v. Valentine, 239 Miss. 890, 124 So.2d 690 (1960) ; Mississippi State Highway Commission v. Stubbs, 239 Miss. 499, 124 So.2d 281 (1960) ; Mississippi State Highway Commission v. Ellzey, 237 Miss. 345, 114 So.2d 769 (1959) ; Mississippi State Highway Commission v. Trammell, 252 Miss. 413, 174 So.2d 359 (1965).

These same cases are cited by the appellant in Mississippi State Highway Commission v. A. J. Ferguson, et al., Miss., 190 So. 2d 455. For the identical reasons cited in the Ferguson case, these cases are distinguishable from the case at bar. The factual situation in the case at bar is quite different from the factual situation in the cases cited by the appellant, and a review of our opinion in the Ferguson case will outline the factual situation in those five cases and establish the distinctions between those cases and the case at bar. The issue in this case presents a difficulty not infrequently found in appeal cases. While the proof offered by appellant and appellees in this case could have been more detailed, the fact nevertheless remains that the appellees, who had a very fine hundred acre farm, now have lost not only the 21.9 acres condemned by the Highway Commission for its road and right-of-way, but they have also lost the use of some of the remaining cotton and farm land. It is obvious that if the appellees are to use the 70.9 acres of land, they will have to build the necessary structures and buildings on the east side of the highway, including a barn and pond.

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Mississippi State Highway Commission v. Hillman
198 So. 565 (Mississippi Supreme Court, 1940)
Mississippi State Highway Commission v. Williamson
179 So. 736 (Mississippi Supreme Court, 1938)
Mississippi State Highway Commission v. Ferguson
190 So. 2d 455 (Mississippi Supreme Court, 1966)
City of Jackson v. Landrum
63 So. 2d 391 (Mississippi Supreme Court, 1953)
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Cite This Page — Counsel Stack

Bluebook (online)
190 So. 2d 865, 1966 Miss. LEXIS 1408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-state-highway-commission-v-calhoun-miss-1966.