WHEELER, ET UX. v. STATE HWY. COMM

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Docket Number

No. 38058.

Judges

Alexander, J.

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WHEELER, et ux. v. STATE HIGHWAY COMMISSION.

Raymond L. Burgess, for appellants.

I. The verdict of the jury was against the overwhelming great weight of the evidence and contrary to the law and the evidence. Skermetti v. Mississippi State Highway Comm., 43 So.2d 649.

II. The court erred in refusing to permit M.L. White, witness for the commission, to inform the jury as to provisions the plans for new highway 25 contained for maintenance and upkeep of portion of old highway 25 running in front of appellants' residence and store located on parcel No. 1. Morris v. Covington County, 118 Miss. 875, 80 So. 337; Smith v. Miss. State Highway Comm., 183 Miss. 741, 184 So. 814; Parker v. State Highway Comm., 173 Miss. 213, 162 So. 162; White's Garage v. Town of Poplarville, 153 Miss. 683, 121 So. 295; Tishomingo County v. McConville, 139 Miss. 589, 104 So. 452.

III. The court erred in giving each and every instruction requested by the Mississippi State Highway Commission.

We respectfully maintain that the granting of instructions No. 5 and No. 6 constitutes reversible error. Instruction No. 5 is as follows: "The court instructs the jury for the petitioner that in determining the amount of the defendant's compensation and damages, if any, if you find that the defendant's store house and residence shown by the evidence to be in Parcel No. 1 presently face old highway No. 25 and if you further find that in order to face the new highway the store house and residence would have to be removed to, or rebuilt on, the new highway, you are not to take into consideration such removal or rebuilding or the cost thereof or expense incidental thereto in fixing the amount of compensation and damages, if any, for the land taken as Parcel No. 1."

The above instruction eliminates any consideration by the jury as to the damage in the relocation of the new highway. Aforesaid instruction also prevents any consideration as to whether or not the building and residence would have to be removed, rebuilt or altered as a result of the taking of appellants' property and relocation of the highway. Any action which affects the market value of property whether taken or not is an element of damage and must be so considered. Alabama R.R. Co. v. Bloom, 71 Miss. 247, 15 So. 72; City of Jackson v. Wright, 151 Miss. 829, 119 So. 315.

The other instruction prevents the jury from considering any effect the relocation of the highway might have on Parcel No. 1 indicated in the stenographic record. The above instruction states that since the store building and residence are not disturbed or taken no damage results and therefore no compensation.

We respectfully maintain that both above instructions amount to a comment on the evidence presented and that in all fairness to appellants this case must be reversed and remanded.

The record indicates that there is a distinct difference far in excess of $900.00 of the market value of appellants' unit. I would like to point out to this honorable Court that another distinguishing feature of this litigation is the fact that the store, residence and cultivatable land were all used by the appellants as an integrated unit. Therefore, anything as a result of the taking affecting the market value of the unit is compensable. State Highway Commission v. Day, 181 Miss. 708, 180 So. 794; Baker v. Miss. State Highway Comm., 204 Miss. 166, 37 So.2d 169.

IV. The court erred in refusing to grant defendant-landowner a new trial as a result of the prejudicial and misleading remarks made by attorney for the Mississippi State Highway Commission in his closing argument, as set out in the special bill of exceptions filed in this cause.

The trial judge throughout the entire record sustained an objection by the commission to the introduction of any proof relative to loss of business as a result of the relocation of the highway. Yet, the commission's attorney in the closing argument as indicated by a special bill of exceptions mentions that appellants were attempting to collect damages for loss of business, that the approach was made to the back end of the law suit instead of the front door and an attempt was made to collect money because the new road did not run in front of the store building.

We respectfully maintain that the prejudicial remarks as set out in the bill of exceptions were not justified and that the rights of the appellants were placed in a false atmosphere and that such remarks led the jury into rendering a prejudicial verdict. Matthew Harper, Assistant Attorney General, and J.M. Kuykendall, for appellee.

I. Upon relocation of a state highway the old road reverts to the county and thereafter the highway commission is under no duty to maintain the old road nor to compensate the abutting property owners on the old road for alleged damages. Wilkinson County v. State Highway Comm., 191 Miss. 750, 4 So.2d 298; Quin v. State Highway Comm., 194 Miss. 411, 11 So.2d 810; Trahan v. State Highway Comm., 169 Miss. 732, 151 So. 178; Highway Comm. v. Chatham, et al., 173 Miss. 427, 161 So. 674.

II. Loss of business, or profits, allegedly resulting from the relocation of the route of a state highway is not an element of damage in an eminent domain proceeding. Baker v. State Highway Comm., 204 Miss. 166, 37 So.2d 169; City of Chicago v. LeMoyne, 119 F. 669; Nelson, et ux. v. State Highway Board, 1 A.2d 689.

III. The verdict of the jury was not against the evidence in this case. Warren County v. Harris, 50 So.2d 918; Miss. State Highway Comm. v. Treas, 197 Miss. 670, 20 So.2d 475; Smith, et ux. v. Miss. State Highway Comm., 183 Miss. 741, 184 So. 814; Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; State Highway Dept. v. Meador, 184 Miss. 381, 185 So. 816; State Highway Comm. v. Williamson, 181 Miss. 399, 179 So. 736.

IV. Error, if any, in argument of counsel to jury cured by court's instruction to disregard statement. Brush v. Laurendine, 168 Miss. 7, 150 So. 818; Ingalls Shipbuilding Corp. v. Trehern, 155 F.2d 202; Teche Lines v. Kellar, 174 Miss. 527, 165 So. 303.

V. There was no reversible error in the instructions given for the petitioner by the court. Young v. Power, 41 Miss. 197; State Highway Comm. v. Day, et al., 181 Miss. 708, 180 So. 794; Miss. State Highway Comm. v. Smith, et al., 187 Miss. 613, 192 So. 448; Miss. State Highway Comm. v. Williamson, 181 Miss. 399, 179 So. 736; Miss. State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565.

1. Eminent domain — amount of damages.

When in an eminent domain proceeding the jury made an inspection of the premises and the estimates of the witnesses as to damage ranged from $742.50 to $3,500.00 an award of $900.00 would not be displaced.

2. Eminent domain — future plans as to location of highway.

Questions as to future plans of the highway commission in regard to maintaining the existing highway which ran in front of the property of the landowners who operated a store on the premises were properly excluded when there was no testimony as to anticipated loss of business.

3. Highways — relocating — maintaining old route. 4. Highways — State Highway Commission — abandonment of existing highway.

The State Highway Commission is without authority to agree with a county to maintain an existing highway indefinitely, and upon its abandonment the former road reverts to the county and the commission is not liable in damages for such abandonment.

5. Eminent domain — impairment of ingress.

The landowner in a proper case has the right to recover for direct damage occasioned by actual impairment of ingress, yet this is a factor to be taken in account in applying the "before and after" rule.

6. Eminent domain — damages — instructions.

Instructions on the elements of damage in an eminent domain case were not subject to challenge because they excluded loss of business or profits from a store when there was no direct testimony on that point; and when all the instructions are read together it was made clear that separate items of damage including the necessity, if any, of the relocation of the store building were to be taken into account insofar, but only insofar, as they threw light upon the difference in value before and after the taking, there is no reversible error in them.

7. Eminent domain — damages — elements affecting fair market value of remaining land.

Although one or more instructions in an eminent domain case may be ambiguous or uncertain, yet when such ambiguity or uncertainty is cured by other instructions covering the points involved and to the effect that the jury has a right to take into consideration any element which will affect the fair market value of the land remaining including consideration of the use to which the land is being put, its adaptibility for particular purposes, and the extent to which such adaptibility affects the fair cash market value of the property after the taking and to make an award accordingly, there is no reversible error.

8. Eminent domain — instructions — special comment.

Subjects which are relevant as testimony are not by that fact alone made appropriate for instructions and while in an eminent domain case every factor affecting a depreciated market value may be put in evidence yet to make them the subject of special comment in instructions not only violates the statute governing instructions but may result in a duplication of damages; so that after eliminating from consideration such factors as, for example, would affect only the personal reactions of the owner, it would be simpler and safer if the jury were instructed that the damages are to be computed upon the basis of the difference between the fair market value of the entire property affected before and after the taking, thereby leaving the several items of damage to the fields of testimony and agreement.

9. Trial — argument of counsel — directions of court to disregard.

When an argument is made by counsel over the objections of the opposite party that there was no evidence to support it, and the court directs the jury to disregard the objectionable argument, there is as a general rule no prejudicial error.

Headnotes as approved by Alexander, J.

Alexander, J.

The State Highway Commission, by eminent domain proceedings, expropriated for highway purposes 3.6 acres of land belonging to appellants. There was an original award of nine hundred dollars, and upon appeal to the circuit court a like award was made.

The assignments of error argued are (1) the verdict is against the overwhelming weight of the evidence; (2) exclusion of certain testimony; (3) errors in instructions; and (4) improper argument to the jury.

The first assignment. (Hn 1) The testimony as to damage ranged from $742.50 to $3,500. The former figure was estimated by an engineer employed by appellee who detailed the several items of damage. The latter estimate was made by the appellants who did not itemize their appraisals but explained in general terms that this was a lump sum based upon what the land was worth to them. Other witnesses for appellants stated their estimates in like manner. Some witnesses stated generally that their estimates were based upon the value of the land before and after the taking, although all were stated "in a lump sum", without elaboration.

A view of the premises was requested and the jury made an inspection. In view of all these considerations, we find no substantial basis for displacing the award. Smith v. Mississippi State Highway Commission, 183 Miss. 741, 184 So. 814.

The second assignment. (Hn 2) The witness, M.L. White, was questioned as to the future plans of the Commission with regard to maintaining the existing highway which ran in front of the property of appellants. The court sustained an objection thereto. There was no error here. There was no testimony as to anticipated loss of business by the owners who operated a store on the premises. Moreover (Hn 3) the Commission is authorized to relocate highways in the public interest and is under no duty to maintain the old route. Wilkinson County v. State Highway Commission, 191 Miss. 750, 4 So.2d 298. Furthermore, (Hn 4) the Commission is without authority to agree with a county to maintain an existing highway indefinitely. Upon its abandonment the former road reverts to the county. It is not liable in damages for such abandonment. Quin v. Mississippi State Highway Commission, 194 Miss. 411, 11 So.2d 810. There remained reasonable access to both the old and the new routes. (Hn 5) Recognition is not denied to the right of a landowner in a proper case to recover for a direct damage occasioned by actual impairment of ingress, yet this is a factor to be taken in account in applying the "before and after" rule.

The third assignment. (Hn 6) It is complained that the trial court erred in excluding by instructions consideration of any loss of profits from business which appellants may suffer. In the first place there was, as above stated, no direct testimony as to loss of business or profits. Such contention must rest, if at all, upon the incident that the store building would not front upon the new highway. Any consideration of this latter factor was left to the jury in assessing residual damage. Whether the owner would relocate his buildings is commended solely to his judgment. The end result of the taking leaves open the necessity or desirability of such relocation, and if disadvantage should appear to the jury, it was left free to integrate this fact into its estimate of the over-all depreciation in the market value of the property. The instructions complained of, taken with other charges given to both parties, made it clear that separate items of damage were not to be taken into account except insofar as they threw light upon the difference in value before and after the taking.

(Hn 7) The following instruction was given for appellee: "The court instructs the jury for the petitioner in this case that you are not to take into consideration in fixing compensation and damages, if any, shown by the evidence to the store building, the residence and other buildings which are now located on said Parcel #1 facing old highway 25 by the fact that the new highway will be constructed in such a way so as to leave said buildings remaining on old highway 25 as presently located."

It would have been appropriate to refuse this instruction because of its ambiguity. The jury has a right to take into consideration any element which will affect the fair market value of the land remaining. Yet, such ambiguity is cured by other instructions which lay down the proper "before and after" rule. Further curative effect is furnished by the appellants' instruction number 2 as follows: The Court instructs the jury for the landowner that in this case you may consider the use to which the land is being put, its adaptability for particular purposes, and that if such use or particular adaptability affects the fair cash market value of the property after the taking by the Highway Commission, then you shall award damages to the landowner in the sum you deem the use and adaptability is affected, based on the fair cash market value after the taking."

(Hn 8) Their instruction number 3 allows the jury to take into consideration any inconvenience to the landowner provided it affects the fair market value. Apart from the uncertainty, especially under this record, of estimating the extent and value of personal inconvenience, it is a comment upon a special phase of the testimony and is, at most, hazardous. Mississippi State Highway Commission v. Dodson, 207 Miss. 229, 42 So.2d 179.

It should repeatedly be emphasized that subjects which are relevant as testimony are not thereby appropriate for instructions. Although every factor affecting a depreciated market value may be put in evidence, the ultimate issue is the extent of their cumulative impact upon such total valuation. When they are made subjects of special comment in instructions, there is not only a violation of Code 1942, Section 1530, but this results in a duplication of damages. State Highway Commission v. Day, 181 Miss. 708, 180 So. 794; State Highway Commission v. Corley, 186 Miss. 437, 191 So. 119; Mississippi State Highway Commission v. Treas, 197 Miss. 670, 20 So.2d 475. We do not imply, however, that it may not be appropriate to eliminate from consideration such factors as, for example, those which effect only the personal reactions of the owner. It should be assumed that the jury may and will take into consideration all testimony admitted by the court, and the procedure in this sort of case would be simpler and safer if the juries could be instructed that the damage is to be computed upon the basis of the difference between the fair market value of the entire property affected before and after the taking. The several items of damage should be left to the fields of testimony and argument.

The fourth assignment. (Hn 9) Error was assigned for an alleged improper argument to the jury by the appellee. In substance reference was made as to the damage on account of loss of profits and the absence of any necessity to relocate the buildings. The basis of the objection was that there was no evidence of any loss of profits, which concession lends additional support to our ruling upon the second and third assignments. The court at the request of the appellants directed the jury to disregard this argument. No prejudicial error can be detected.

We find no reversible error in this record.

Affirmed.

Hall, J., took no part in the decision of this case.

WHEELER, et ux. v. STATE HIGHWAY COMMISSION.

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