Mississippi State Highway Commission v. Gabbert ( 1960 )

McGehee, C. J.,

dissenting:

The judgment rendered in the trial court in this case was tor the sum of $12,000 which amounted to approximately $4,000 per acre for 3.2 acres of unimproved land taken in a condemnation proceeding by the Mississippi State Highway Commission.

According to the testimony of the project engineer and the surveys, the appellees owned approximately 4% acres. The Highway Commission condemned approximately 3.2 acres thereof, leaving the appellees 1.3 acres on which all of their improvements and trees, except one pear tree, are located. In other words, the 3.2 acres taken was shown not to have any fences, trees or other improvements thereon, except the one pear tree above-mentioned. The amount of land originally owned by the appellees from which the 3.2 acres was taken for highway purposes was shown by a map or plat, made a part of the record on appeal, to be approximately 4% acres according to the measurements and surveys made. All of the witnesses for the appellees, none of whom are shown to have measured the land, stated the acreage to be about five or six acres. The surveys and measurements would control rather than the estimates.

Mr. Elmer Gabbert, one of the appellees, testified that he originally owned six acres of land, that four rooms of the house were about one hundred years old and that he had added three rooms to the house after he bought the place about sixteen years ago. The property is located in the abandoned Town of Scobey in the western part of Yalobusha County, where there is no longer a store or any other place of business of any kind. It is at least one and one-fourth mile from the nearest country store, and is four or five miles from Tillatoba. The improvements on the property, which the Gabberts still own, are as stated in the controlling opinion herein, and the witnesses for the landowners testified as to values in the manner stated in the controlling opinion herein.

As against the testimony for the landowners, which is summarized in the controlling opinion, the State Highway Commission had Mr. Fred Kendrick, a banker at Water Valley, to inspect the property and testify as to its fair market value before and after the 3.2 acres was condemned for highway purposes. Mr. Kendrick had been engaged in the banking business for 35 years and had done appraisal work over a period of 17 years. Naturally in a rural area where this property was located, a local banker would be able to form an opinion as to property values in that area, and to give the jury the benefit of a fair and impartial statement as to what he honestly thought the land was worth. He testified that the property before the taking was worth $7,000, or not over $7,500, and after the taking $2,500.

Mr. J. M. Fancher, banker at the Coffeeville Branch of the Bank of Water Valley, testified for the Highway Commission, and stated that he had been in the banking business about 38 years and frequently made appraisals of real estate for loan purposes, and that he was familiar with the lands owned by the appellees in the Town of Scobey; that'he had inspected the property and that in his opinion the fair cash market value of all of the land owned by the appellees before the taking was $7,500, and after the taking $2,500.

In other words, those two bankers conceded that because of the condition that the property of the appellees would be left in after the construction of the new highway, it would be damaged to the extent of two-thirds of its value, or $5,000, on account of the fact that the new highway construction would leave an embankment 28 feet high on the west side, and one approximately 4 feet high on the south of the triangular tract not condemned.

It is true that it would be necessary for the appellees to travel about four miles in one direction and about five miles in another to get on the new highway which was being constructed, but there is proof that they will have the same means of getting to and from their property after the taking of the 3.2 acres thereof as they had prior thereto. Moreover, as held in the cases of Muse v. Mississippi State Highway Commission on June 9, 1958, reported in 103 So. 2d 839, 233 Miss. 694, and Harreld, et al. v. Mississippi State Highway Commission, decided the same day, and reported in 103 So. 2d 852, 234 Miss. 1, a landowner has no vested right for direct access onto one of these new interstate highways; and that he has no right of recovery of damages for the inconvenience of traveling a distance to get on such new highway.

The appellee Elmer Gabbert testified that he had a drainage problem on his land before the taking when there were heavy rains.

It is true that this is what is known as a nonaccess highway, No. 55, but it is to be assumed that all of the people living along this highway will be inconvenienced in going from their property onto the highway.

"We refrain from discussing the testimony of Mr. Mason and Mr. Massie, witnesses for the Highway Commission, since one of them, whose testimony is in accord with that of Mr. Kendrick and Mr. Fancher as to values, is an employee of the Commission, and they, like some of the witnesses for the landowners, would naturally be interested witnesses.

The purpose of this dissent is to point out the fact that in the opinion of the four dissenting Justices the sum of approximately $4,000 per acre is grossly excessive, and that these Justices were willing to approve a judgment for the landowners for approximately $8,000, which, is $3,000 in excess of the damages fixed by the two bankers, because we realize that the landowners are greatly damaged by the condition that their property will be left in after the taking of the 3.2 acres off of the 4%-acre home site. This opinion assumes that the four Justices who concur in the controlling opinion are in honest disagreement with us as to whether or not a judgment for approximately $4,000 per acre for the 3.2 acres taken is grossly excessive, and this dissent is not intended as a criticism of the views expressed in the controlling opinion, and is written merely for the purpose of expressing our dissent from approving the amount of the verdict rendered in this case.

Kyle, Ethridge and Gillespie, JJ., join in this dissent.