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JIMMY EARL DYKES v. STATE HIGHWAY COMMISSION OF MISSISSIPPI

NOVEMBER 30, 1988

JIMMY EARL DYKES
v.
STATE HIGHWAY COMMISSION OF MISSISSIPPI



BEFORE DAN LEE, ANDERSON AND ZUCCARO.

DAN 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. 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" ...


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