Before Thomas, P.j., Herring, And Hinkebein, JJ.
The opinion of the court was delivered by: Herring, J.
HARRIS PROPANE, INC., WILLIAM T. HARRIS AND JOSEPH P. HARRIS, APPELLANTS v. MISSISSIPPI TRANSPORTATION COMMISSION, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 10/19/95
TRIAL JUDGE: HON. H. GERALD HOSEMANN
COURT FROM WHICH APPEALED: WARREN COUNTY SPECIAL COURT OF EMINENT DOMAIN
NATURE OF THE CASE: CIVIL - EMINENT DOMAIN
TRIAL COURT DISPOSITION: NO COMPENSATION AWARDED TO PLAINTIFFS
DISPOSITION REVERSED AND REMANDED - 4/7/98
MOTION FOR REHEARING FILED:
William T. Harris and his brother, Joseph P. Harris, appeal in this action from a judgment of the Special Court of Eminent Domain of Warren County, Mississippi, wherein the Appellants were denied compensation following a jury trial. The Harris brothers and their corporation, Harris Propane, Inc., claim that they are entitled to compensation as a result of the Mississippi Transportation Commission's condemnation of certain adjoining property which left the Harris property without immediate access to Mississippi Highway 27 near its intersection with Interstate Highway 20. The Appellants primarily contend (1) that the trial court erred when it excluded from evidence a joint development agreement between the Harris brothers and an adjoining land owner which would have required development of all adjoining properties together and allowed the Harris properties broad access to Highway 27 prior to condemnation and (2) that the trial court erroneously allowed the Mississippi Transportation Commission (MTC) to avoid payment of damages to the Harris brothers by promising to construct an access road from the Harris properties to U. S. Highway 80, after condemning their access to Highway 27. After considering these and the other assignments of error raised by the Harris brothers, we reverse and remand for a new trial on all issues.
MTC filed its condemnation action in the Special Court of Eminent Domain of Warren County, Mississippi, on October 13, 1994, against William T. Harris and Joseph P. Harris; their corporation, Harris Propane, Inc.; Johnny Jabour, an adjoining landowner; and Blossman Gas, Inc., a sub-tenant of certain condemned real property which the Harris brothers had leased from Jabour. Harris Propane, Inc., was a close corporation owned solely by the Harris brothers which had been dissolved prior to the condemnation action. MTC filed its eminent domain action in order to facilitate its desire to widen portions of U. S. Highway 80 and to redesign its intersection with Mississippi State Highway 27. This intersection is located immediately south of the Highway 27/Interstate 20 interchange. The Appellants filed a counterclaim and alleged, inter alia, that property owned by them which adjoined property owned by Jabour, was being adversely affected by the condemnation of the Jabour property. The various claims of MTC and the Harris brothers were consolidated for trial purposes into one eminent domain action by agreement of the parties.
As stated by the Appellants in their brief, the properties being condemned are located in the northeast quadrant of the Highway 80/Highway 27 intersection described above (which is locally referred to as the "Beechwood Intersection"). In order to reconstruct this intersection, MTC decided to condemn a 0.149 tract of land owned by Johnny Jabour, which had complete access to Highway 27 at its intersection with Highway 80 prior to condemnation. However, as a result of the condemnation, the remaining Jabour tract of land located at the Beechwood Intersection became landlocked, with no access to Highway 27 or any other public street or road.
At the time of the original condemnation in 1994, Harris Propane, Inc., which had previously been administratively dissolved by the Harris brothers, owned a 3.6 acre tract of land in its name immediately to the north and adjacent to the Jabour property. The Harris land was vacant at the time. It had no immediate access to Highway 27 or to any public thoroughfare except through an easement through the Jabour property to the south, which had broad access to Highway 27 prior to condemnation. However, the Harris property adjoined and was adjacent to Highway 27 on the east, although it had no access to that highway. The third tract of land involved in MTC's condemnation action was a 6.56 acre tract of land which was jointly owned by Jabour and the two Harris brothers. This property adjoined the 3.6 acre Harris Propane property on the north and also was adjacent to the eastern right-of-way line of Highway 27. The Jabour/Harris tract was also adjacent to the southern right-of-way line and in full view of Interstate 20. Like the Harris Propane property to its south, the Harris/Jabour tract was landlocked. It had no access to any public road at the time of its purchase, except for the easement from the 3.6 acre Harris Propane property which ran in a southerly direction across the western side of the Jabour property to a point where access to Highway 27 was allowed. The easement in question is located within the 0.149 acre portion of the Jabour tract which was originally condemned by MTC on October 13, 1994.
After Jabour and the Harris brothers jointly purchased the 6.56 acres to the north, they entered into a development agreement to market together all of the three parcels of land mentioned above [(1) the Jabour tract at the Beechwood Intersection; (2) the 3.6 acre tract owned by Harris Propane; and (3) the 6.56 acres owned jointly by Jabour and the Harris brothers)]. This development agreement, which was dated October 2, 1988, and which was executed by both of the Harris brothers and Jabour, stated in pertinent part as follows:
The parties do hereby agree that they will hereafter undertake development of all three parcels of land as a joint commercial venture and for a purpose to be mutually agreed upon by the parties, and that neither Jabour nor Harris will sell or transfer the lands owned independently of the other nor the undivided interest in the parcel jointly owned without first offering to sell to the other on the same terms and conditions as may be offered by a potential third party purchaser. It is the intention of the parties to create a parcel of land of sufficient size and with interstate access to create a prime commercial site for future development by the parties hereto.
At such time as the parties determine to undertake commercial development of the aggregate lands covered by this Agreement, each party shall cause any mortgage indebtedness covering the lands owned independently to be satisfied and the lands to be conveyed to a partnership, corporation or joint venture to be formed for the purpose of development.
At the time of its condemnation and immediate possession of Jabour's 0.149 acres, MTC issued a "controlled access order" which prevented any further access to Highway 27 from the remainder of the Jabour tract of land. Thus, all of the Harris/Jabour properties became landlocked with no access to any public road or street. However MTC also condemned three other small tracts of land from Jabour and the Harris brothers, primarily for the purpose of allowing MTC to construct an access road from the 3.6 acre tract and the 6.56 acre tract of land to U. S. Highway 80, along the east side of the 3.6 acres owned by Harris Propane.
Compensation for all condemned properties was agreed upon, except that the Harris brothers alleged that the condemnation by MTC had resulted in compensable damages to the 3.6 acre Harris Propane tract in the sum of $270,750, as a result of their lost access to the heavily traveled Highway 27. They further alleged that the 6.56 acre Harris/Jabour tract had also been damaged as a result of the lost easement in the sum of $206,400. Appellants also claimed an interest in the 0.149 acre Jabour tract that was condemned by MTC because the development agreement contemplated that the three parcels of land would be marketed together as a single tract of land. In fact, a sign was located on the properties which marketed all three parcels as a motel site.
Prior to trial, the trial court excluded all evidence relating to the development agreement between Jabour and the Harris brothers. The basis for the court's ruling was that the agreement or contract was executory in nature and thus had no compensable value in these proceedings. With the exclusion of the development agreement from evidence, the Harris brothers were precluded from claiming that Jabour's loss of access to Highway 27 from his 0.149 acres resulted in damage to the 3.6 acre tract owned by them or the 6.5 acre tract which they jointly owned with Jabour. They were left only with their claim for damages as a result of the condemnation of their narrow easement from the 3.6 acre tract to Jabour's 0.149 acres. As stated, MTC was allowed to inform the jury that it would provide an alternate access route and build an asphalt road on an eighty-foot right-of-way from the Harris properties to U. S. Highway 80.
After viewing all of the property involved and the location of the proposed new access road, the jury found that neither the Harris brothers nor their corporation suffered any damages as a result of the taking of the easement from the 3.6 acre tract to the Jabour property, and a verdict of $0.00 damages was returned. It is from this verdict that the Harris brothers now appeal.
The Appellants raise five issues on appeal which are stated verbatim as follows:
I. ARE THE HARRISES' PROPERTY RIGHTS ARISING UNDER THE DEVELOPMENT AGREEMENT COMPENSABLE AND DID THE TRIAL COURT ERR BY REFUSING TO ADMIT THE DEVELOPMENT AGREEMENT INTO EVIDENCE?
II. CAN THE MISSISSIPPI TRANSPORTATION COMMISSION AVOID PAYING THE COMPENSATION REQUIRED BY SECTION 65-5-5 FOR LOSS OF ACCESS TO HIGHWAY 27 BY BUILDING A DRIVEWAY TO HIGHWAY 80?
III. WAS IT PROPER TO ALLOW EXPERT WITNESSES TO TELL THE JURY THAT THE PROPOSED DRIVEWAY TO HIGHWAY 80 IS RELEVANT TO THE MEASURE OF DAMAGES FOR THE LOSS OF ACCESS TO HIGHWAY 27?
IV. CAN THE TRIAL JUDGE APPROPRIATELY TELL THE MISSISSIPPI TRANSPORTATION COMMISSION'S VALUE WITNESS, IN THE JURY'S PRESENCE, TO SAY THE HARRISES ARE ENTITLED TO $1.00 IN ORDER TO COMPLY WITH THE STATUTORY MANDATE REQUIRING COMPENSATION?
V. SHOULD THE JURY BE INSTRUCTED NOT TO DEDUCT FROM HARRISES' COMPENSATION THE VALUE OF ANY BENEFITS WHICH MIGHT ACCRUE TO THE HARRISES DUE TO THE NATURE OF THE FACILITY BEING CONSTRUCTED?
In order to dispose of this case, it will only be necessary for the Court to consider two of the ...