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AINSWORTH v. INTERSTATE OIL PIPE L. CO

Supreme Court of Mississippi.

Dec 11, 1961

Judgment

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CITATION CODES

citation codes

DOCKET NO.

No. 42081.

Attorney(S)

McFarland McFarland, Bay Springs, for appellant. I. The trial judge below did commit error in ordering a remittitur of $7,000 on a $10,400 verdict, and for this error the judgment of the County Court, from whence the appeal came, to the Circuit Judge, must be reinstated. II. Alternatively, if we are mistaken in our position last above stated, we submit that the remittitur of the Circuit Judge was excessive; that under no circumstances was he justified in ordering a remittitur of two-thirds of the verdict of the jury and judgment of the trial court, and this Court, if it holds that the remittitur was proper, should change the amount thereof to an amount in keeping with what this Court determines to be a fair and reasonable amount of damage to the landowner, taking into consideration all of the facts and circumstances established in the record. Collation of authorities: Chapman v. Powers, 150 Miss. 687, 116 So. 609; Gibson v. A.P. Lindsey, Distr., 233 Miss. 853, 103 So.2d 345. Shannon Clark, Welch, Gibbes Graves, Laurel, for appellee. I. The trial court erred in admitting in evidence the testimony of Ainsworth's witnesses as to the value of the property; and in refusing to sustain a motion of Interstate to exclude said testimony. Board of Levee Commrs. v. Dillard, 76 Miss. 641, 25 So. 292; Board of Levee Commrs. v. Hendricks, 77 Miss. 483, 27 So. 613; Mississippi State Highway Comm. v. Rogers, 240 Miss. 529, 128 So.2d 353; Mississippi State Highway Comm. v. Valentine, 239 Miss. 890, 124 So.2d 690; 18 Am. Jur. Sec. 356 p. 1001; 5 Nichols on Eminent Domain, Sec. 18.4(1) p. 135. II. The verdict of the jury was not in accord with the law and the evidence and was contrary to the weight of the law and the evidence. The verdict of the jury was so excessive as to denote bias, prejudice and passion on the part of the jury, and was so large as to shock the enlightened conscience of the Court. Mississippi State Highway Comm. v. Ellzey, 237 Miss. 345, 114 So.2d 769; Mississippi State Highway Comm. v. Pittman, 238 Miss. 402, 117 So.2d 197; Mississippi State Highway Comm. v. Rogers, 236 Miss. 800, 112 So.2d 250; Mississippi State Highway Comm. v. Stubbs, 239 Miss. 499, 124 So.2d 281; Mississippi State Highway Comm. v. Taylor, 237 Miss. 847, 116 So.2d 759; Strickland v. Mississippi State Highway Comm., 240 Miss. 7, 124 So.2d 696.

JUDGES

RODGERS, J.

ACTS

No Acts

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Important Paras

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1. Eminent domain — land for construction of oil pipe line — damages — award excessive — remittitur ordered by trial court.

Award of $10,400 for condemnation of 4.7 acres of land for construction of 6,816-foot pipeline across owner's land was so excessive as to evince passion and prejudice, and Circuit Court did not err in granting a new trial unless owner consented to remittitur of $7,000.

2. Eminent domain — damages — before and after rule.

Damages in eminent domain proceeding is fair market value of whole property before taking less fair market value of whole property immediately after taking.

3. Appeal — new trial — action of trial court in granting new trial upheld unless manifest error appears.

Supreme Court will consider favorably action of trial court in granting a new trial, and will sustain its order unless manifest error appears therein.

Headnotes as approved by Rodgers, J.

RODGERS, J.

(Hn 1) This is a condemnation suit filed in the county court of Jones County, Mississippi, by Interstate Oil Pipe Line Company against Otis Ainsworth in which the petitioner sought to condemn 4.7 acres of land belonging to the appellant, Otis Ainsworth, for the purpose of constructing an oil pipe line from the Bryan Field in Jones County to the Interstate Terminal near the Soso Field in Jones County, across the lands of the appellant. A trial was had in the eminent domain court on June 1, 1960, resulting in a jury verdict in favor of the appellant in the sum of $10,400.00. The Interstate Oil Pipe Line Company appealed from the verdict and judgment of the county court to the Circuit Court of the Second Judicial District of Jones County. Thereafter, on the 19th day of April, 1961, the Circuit Court entered its judgment reversing the judgment of the county court and ordering a new trial, unless the appellant entered a remittitur of $7,000.00 within 15 days. The appellant, land owner, declined to enter a remittitur and prosecuted his appeal to the Supreme Court under Section 1536, Mississippi Code of 1942, as amended by Chapter 230, Laws of 1956. The Interstate Oil Pipe Line Company also prosecuted a cross appeal from the judgment of the Circuit Court, asking for a new trial under the facts presented.

The appellant, Otis Ainsworth, is the owner of 450 acres of land near Sandersville in Jones County, Mississippi. The property sought to be condemned is described in the petition filed with the county court and comprises a strip of land 30 feet wide, 15 feet on each side of a survey line, running east and west across appellant's property for a distance of 6,816 feet. A ditch will be dug 20 inches wide and about 48 inches deep across the Ainsworth property.

The witnesses testified the following damages would result to the property by the taking of the easement, for the purpose of building the pipe line:

Value Before Value After Resulting Taking Taking Damage

For Pipe Line Company:

J.H. Davis, Agricultural Agent $ 52,875.00 $51,820.00 $ 1,054.60 L.C. Kirkland, Ex-Appraiser 51,100.00 50,000.00 1,100.00 James M. Vardaman, Consulting Forester Timber 215.00

For Otis Ainsworth:

John Blackledge $105,000.00 $75,000.00 $30,000.00 C.B. Howse, Farmer and Machinery 108,000.00 80,000.00 28,000.00 Claude Smith 112,000.00 86,000.00 26,000.00 Ainsworth 25,000.00

(Hn 2) The order of the Circuit Court granted a new trial, and for that reason, we refrain from discussing the testimony introduced in the county court. We point out, however, that the evidence did not show and the jury was not given an opportunity to know the sale value of known comparable property, in that territory; nor did the testimony particularize the appraisal values, so as to aid the jury in determining the over-all value of the property. Some of the evidence introduced did not comply with the firmly established rule for determining damages in eminent domain cases, namely: "The fair market value of the whole property before the taking, less the fair market value of the whole property immediately after the taking." See cases cited in Mississippi State Highway Commission v. Strong, 129 So.2d 349 (Miss. 1961).

(Hn 3) It has for many years been the general rule in this state, that the Supreme Court will consider favorably the action of the trial court in granting a new trial, and will sustain its order unless manifest error appears therein. The rights of the parties have not been fully settled by an order granting a new trial, as would be the case if the trial court had refused to grant a new trial. Smith v. Walsh, 63 Miss. 584; Harper v. State Highway Commission, 216 Miss. 321, 62 So.2d 375; Long v. Magnolia Hotel Co., 236 Miss. 655, 111 So.2d 645, 114 So.2d 667; Flurry v. Dees, 128 So.2d 873 (Miss. 1961).

After a careful examination of the testimony in this case, it is apparent to us that the verdict of the jury of the county court is so excessive as to evince passion and prejudice, and the Circuit Judge was correct in granting a new trial; nor can we hold that there was manifest error in the order of the trial court because of having entered a remittitur of $7,000.00.

The order of the Circuit Court granting a new trial in the county court will, therefore, be affirmed on direct and cross appeal unless the appellant, Otis Ainsworth, enters a remittitur of $7,000.00 within 15 days from this date. In the event a remittitur is filed, the Interstate Oil Pipe Line Company is charged with the cost of court, and six per cent interest on the balance from the date of the judgment of the county court.

Affirmed.

Kyle, Arrington, Ethridge and McElroy, JJ., concur.