Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

STATE HIGHWAY COMMISSION OF MISSISSIPPI v. GLADYS COOLEY HAVARD AND DAVID E. HAVARD

MAY 27, 1987

STATE HIGHWAY COMMISSION OF MISSISSIPPI
v.
GLADYS COOLEY HAVARD AND DAVID E. HAVARD



BEFORE WALKER, C.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

This is a highway right-of-way eminent domain case. The condemning authority appeals and presents issues regarding the measure of compensation due upon the taking, the scope of cross-examination and the alleged excessiveness of the jury's award. Also presented is a thorny pre-trial discovery point. For the reasons stated below, we affirm.

David E. Havard and Gladys Cooley Havard (sometimes" landowners "), husband and wife, live approximately six miles east of Lucedale in George County, Mississippi. Since 1959 they have made their home on a 1.43 acre tract of land along U. S. Highway No. 98. The Mississippi State Highway Commission (MSHC) has determined that Highway 98 should be four-laned, a decision no doubt made in the public interest. To accomplish this end, however, MSHC must take much of the Havards' front yard. Specifically, MSHC has determined to condemn .89 acres of the Havards' property upon which and across which the new lanes of Highway 98 will be placed. After the construction of the two new lanes, the Havard house will be approximately 35 feet from the highway right-of-way and approximately 130 feet from the edge of the pavement.

 MSHC commenced this eminent domain proceeding in the Circuit Court of George County, Mississippi, on June 25, 1984. Miss. Code Ann. 11-27-5, et seq. (1972). The matter was called for trial on December 7, 1984.

 At trial Jerry Wallace, expert appraiser for the Highway Commission, offered his opinion that the highest and best use of the property was rural residential; he would award a total compensation of $3,650.00, of which sum $975.00 represented damage to the remainder.

 Appraiser for Appellees Havard, John Guthrie, who also classified the property as rural residential, opined that the total damages owed to the Havards should be $13,850.00. Mr. and Mrs. Havard, both elderly, testified that they felt compensation should be $29,000.00 or $30,000.00 because the property in question was their home and they had no way to relocate.

 After hearing the evidence and viewing the premises, the jury returned a verdict and assessed compensation due the Havards by reason of the taking at the sum of $15,000.00.

 MSHC thereafter moved for a new trial on the issue of

 damages or, in the alternative, for a remittitur, which motion was overruled by the Circuit Court on January 4, 1985. Still contending that the jury's damage award was substantially excessive, MSHC now appeals to this Court.

 III.

 MSHC first argues that the Circuit Court erred in allowing landowners' counsel to cross-examine MSHC's appraisal witness with regard to the effect of increased noise and increased proximity of their house to the highway arguably to result from the taking. Specifically, MSHC argues that noise and increased proximity were treated by landowners as separate elements of damage in violation of the before and after rule.

 We consider this assignment of error in the context of two familiar rules: the components of compensation due as the result of a partial taking and our evidentiary rules regarding the scope of cross-examination.

 First, due compensation has two familiar components: the fair market value of the property taken and the damage, if any, to the remainder. Put another way, when a part of a larger tract is taken, the property owner is due compensation equal to the difference between the fair market value of the whole tract immediately prior to the taking and the fair market value of the remaining tract immediately after the taking. See, e g., Mississippi State Highway Commission v. Franklin County Timber Co . Inc ., 488 So . 2d 782, 785 (Miss. 1986); Muse v. Mississippi State Highway Commission, 233 Miss. 694, 718, 103 So. 2d 839, 849 (1958). Items such as noise attributable to increased traffic and the increased proximity of the highway to a residence may not form distinct elements of damage. The same is true of the fact of increased proximity to the highway generally. Such matters may be considered only insofar as they impair the fair market value of the property remaining after the taking. See, e.g., Trustees of Wade Baptist Church v. Mississippi State Commission, 469 So. 2d 1241, 1244-45 (Miss. 1985); Mississippi State Highway Commission v. Hall, 252 Miss. 863, 871-75, 174 So. 2d 488, 492 (Miss. 1965); Mississippi State Highway Commission v. Colonial Inn, Inc., 246 Miss. 422, 431-32, 149 So. 2d 851, 855 (1963). The before and after rule" swallows and absorbs "all specific elements of damages. Mississippi State Highway Commission v. Basil Blackwell, et al., 350 So. 2d 1325, 1329 (Miss. 1977); Mississippi State Highway Commission v. Hall, 252 Miss. 863, 874, 174 So. 2d 488, 492 (1965).

 None of this means that witnesses may not be questioned regarding the specifics of the impact ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.