DATE OF JUDGMENT: 06/13/96 TRIAL JUDGE: HON. JOSEPH C. WEBSTER COURT FROM WHICH APPEALED: DESOTO COUNTY SPECIAL COURT OF EMINENT DOMAIN
Before Pittman, P.j., McRAE And Roberts, JJ.
The opinion of the court was delivered by: McRAE, Justice,
NATURE OF THE CASE: CIVIL - EMINENT DOMAIN
MOTION FOR REHEARING FILED:
¶1. This eminent domain case arises from a jury decision of a Special Court of Eminent Domain in Tunica County *fn1 finding that the landowners, members of the Bridgforth family, were entitled to just compensation of $267,919 from the Transportation Commission for some 4.32 acres of land taken for the widening of Goodman Road in DeSoto County. The Commission appeals the amount of the jury award as well as the propriety of the Special Court's order granting the landowner's motion in limine to keep from the jury evidence of grave sites discovered nearly a year after the Commission took title to the property. Finding that the Special Court did not err in granting the motion in limine or in admitting the testimony of the landowner's expert appraiser and that there is substantial evidence in the record to support the jury's verdict, we affirm the award of compensation.
¶2. On September 8, 1993, the Mississippi Transportation Commission filed a petition in DeSoto County for the organization of a Special Court of Eminent Domain to consider condemnation of the Bridgforth property. The Commission's Motion for Order Granting Petitioner Immediate Title and Possession was granted on December 10, 1993. The independent appraisal of the property as of September 8, 1993, based on the value of the 4.32 acres taken, the "before" value of the total property, the "after" value of the total property, and any damages to the remaining property resulting from the partial taking, was $75,600.
¶3. On April 15, 1994, the landowners filed a Statement of Values, asserting that the fair market value of the condemned property, as of the date the complaint was filed, was $267,919. They claimed no damage to the remainder of property and sought compensation in the amount of $267,919.
¶4. On January 11, 1996, the landowners filed a motion in limine to keep from evidence any mention of the presence or possible presence on the property of any "grave sites, graves, caskets, and/or human remains." They maintained that there was no evidence to show that the presence or possible presence of grave sites on the property reasonably would have been known to a hypothetical buyer and seller at the time of the taking, and further, that no facts had been developed to indicate that such knowledge would affect the fair market value of the property. In its February 21, 1996 response, the Commission asserted that the motion in limine should be denied, arguing that the existence of a cemetery in the area was common knowledge and would have been discovered by a reasonable buyer and seller. The Commission further contended that the presence of grave sites affected the fair market value of the property and that the probative value of the evidence of such grave sites outweighed any possible prejudice. Finding that there was no evidence that either party had any knowledge that there were any grave sites on the property at the "time of the taking," the Special Judge granted the motion in limine.
¶5. On June 11, 1996, a jury of the Special Court of Eminent Domain in Tunica County found that the landowners were entitled to compensation of $267,919 for the taking of the subject property. The Commission filed its motion for j.n.o.v. and alternate relief on June 18, 1996, asserting that the Special Court erred in excluding evidence of existence of a cemetery on the property and that the landowners' expert improperly valued the property. The Special Court overruled the motion in an August 1, 1996 order.
¶6. The Bridgforth property is a 4.32 acre tract of land at the intersection of Goodman and Pleasant Hill Roads near Olive Branch in DeSoto County. It is located in a rapidly developing area near Highways 61 and 78 and was acquired by the Commission on September 8, 1993, for the expansion of Goodman Road from two to five lanes. The land at issue is part of a larger tract, comprising some 37.25 acres of farm land, that has been in the Bridgforth family since the early 1900s. The plot involves some thirteen hundred feet of frontage, just short of a quarter of a mile, along Goodman Road, and approximately one thousand feet of frontage along Pleasant Hill Road.
¶7. Because two adjacent churches and cemeteries were located near the site and there had been rumors of an "old slave or colored cemetery" on Pleasant Hill Road, the Commission's Environmental Section looked at the site prior to the letting of any contracts. *fn2 There were no tombstones or signs designating a cemetery on the site. The Commission received permission from the landowners to bush hog the area and found nothing. Metal detectors were used to look for coffin nails, but found nothing. Although no evidence of any graves or grave sites was found, William York, the Commission's spokesperson, stated in his deposition that the contractors were directed to work carefully and remove earth from the construction site in six to eight inch lifts.
¶8. On September 16, 1994, nearly a year after the "quick take" order was entered in December, 1993, construction workers found a coffin handle while working on the Goodman road right-of-way. Construction was halted and digging down to a level three feet below the natural ground level, five grave sites were found, at least two of which contained human remains. Further examination of the site was made with a ground radar penetrating device, revealing one more grave on Goodman Road and nine potential grave sites on Pleasant Hill Road. Working into the Spring of 1995, a total of eight grave sites were uncovered on the Goodman Road site by archaeologists from Memphis and the University of Alabama, after which the area was declared free of graves. Permission was obtained from chancery court to move the remains to the city cemetery in Hernando.
¶9. Laney Funderburk, whose wife's mother was a Bridgforth, grew up near the property and first heard rumors about a cemetery on the property after the condemnation proceedings began. He knew of no rumors about a cemetery surfacing back in the 1960s when Pleasant Hill Road was widened. David Bridgforth, another family member, who farmed several hundred acres of land around the site between 1990 and 1995, had never seen any evidence of graves or grave sites when quail hunting on the land where remains were found. He indicated in his deposition that he first heard rumors about a cemetery after the right-of-way proceedings began. Barry Bridgforth, Sr. likewise testified that he had no prior knowledge of any cemetery on the site. He noted, too, that elderly relatives, likewise, had no knowledge of any graves or grave sites.
¶10. In depositions taken in 1996, several area residents substantiated the rumors the parties had heard prior to and after the taking. They recalled an old cemetery on the Bridgforth property across from the schoolhouse once located on Pleasant Hill Road, on the St. Paul's Missionary Baptist Church and Cemetery property. All had attended the school between the late 1920s and early 1950s. Pleasant Hill Road, at that time, was a narrow two-lane gravel road, first widened around 1960. Goodman Road was a dirt road, barely wide enough for two cars to pass. Each remembered seeing some grave markers in the woods across from the school where, as small children, they had gathered brush wood for the school. One elderly man, however, stated that he was told there was a cemetery back where he and the other children gathered wood, but "Wasn't no tombstones there. I ain't never seen none. There wasn't nothing there, not then. I ain't never seed nothing, and went in there for years and never seed one."
¶11. When the landowners learned of the rumors, they hired a Memphis archeologist, Guy Weaver, to investigate. Weaver identified two areas, known as Locus 1 and Locus 2, as possible cemetery sites. Locus 1 was located on the crest of a ridge northeast of the intersection of Goodman and Pleasant Hill Roads. It ran north to south, with the northern section located on the Bridgforth's remainder land and the southern section extending onto the right-of-way. Locus 2, on the next ridge west of Locus 1, adjacent to Pleasant Hill Road, was located entirely on the Bridgforth remainder property. Using a combination of probing and backhoe trenches, no positive indications of grave sites were found in Locus 1. In Locus 2, using the same methods, Weaver found sixteen grave sites, at which point the landowners requested that he concentrate on finding the boundaries of the cemetery. He ultimately found thirty-five suspected graves and estimated that there could be as many as 125 to 175 graves if the density of the entire site was the same as that of the area tested.
¶12. The Commission's appraiser, Lucy Griffin, used the comparable sales approach to arrive at her valuation of the property. She looked for sales of undeveloped tracts of land ranging from ten to thirty acres. Looking at three sales she believed to be comparable, and making adjustment for size, location and time of sale, Griffin arrived at a value of $19,000 per acre for the property. She therefore computed the "before" value of the 37.25 acre tract at $712,900. Reducing the size of the property by the 4.32 acres taken by the Commission to 33.2 acres, Griffin calculated the "after" value at $630,800. Subtracting the "after" value from the "before" value, Griffin determined that just compensation for the property taken was $82,100. *fn3 She further opined that there was no damage to the remainder property.
¶13. On cross-examination, it was brought out that only one of the three comparable sales utilized by Griffin in her computations was made within two years of the taking of the Bridgforth property. The others were between three and five years prior to the taking. Further, although Griffin assigned a figure of $19,000 per acre to the Bridgforth property, the three comparable sales she used, after adjustments, were $21,000, $19,500 and $21,000. It further was pointed out on cross-examination that the sale of one comparable property was to another family member, another comparable property was zoned only for industrial and not commercial use, and in the third instance, Griffin neglected to take into account the most recent sale of the property for $139,000 an acre.
¶14. Don Harris, the landowners' appraiser, also used a comparable sales approach to valuing the property. As distinguished from Griffin's method of valuing the entire tract at one price per acre, however, Harris stated that the property had two separate highest and best uses and provided two sets of comparable sales figures. While the bulk of the property was best suited to future large scale commercial, such as a shopping center, the highest and best use of the land directly located on the corner of Goodman and Pleasant Hill Roads, some 5.658 acres, was high density commercial, such as gas stations, fast food restaurants, banks and motels. He arrived at the 5.658 acre figure, or 246,450 square feet, taking into consideration the access restrictions created by the intersection and encompassing a property width of 465 feet along Goodman Road and a property depth of 530 feet along Pleasant Hill Road. Using comparable sales and adjusting them for site characteristics as Griffin did, Harris arrived at a value estimate for the 5.658 acre high density commercial area of $2.00 per square foot. For the larger parcel that he characterized as "future commercial large commercial," Harris arrived at a dollar value of $1.15 per square foot, based on comparable sales of $1.10 to $1.23 per square foot, and extremes of $1.10 to $1.63 per square foot. Because he thought that the property could take as long as three years to sell once it was placed on the market, he adjusted the price downward at rate of ten percent per annum for three years, to $.85 per square foot. He further adjusted the value downward by $15,453 for the cost of extending sewer service to the property. He calculated the "before" value of whole tract at ...