State Highway Commission v. Dornbusch

Counsel

E.R. Holmes, Jr., Assistant Attorney-General, for appellant. Testimony with reference to offers to purchase a part of the Dornbusch property for filling station sites was inadmissible. 10 R.C.L. 220, Sec. 188; 18 Am. Jur. 994; L., N.O. T.R.R. Co. v. Ryan et al., 64 Miss. 399 ; Pierce on Railroads, 202; 1 Rorer on Railroads, n. 1; Dickenson et al. v. The City of Fitchburg, 13 Gray 554; St. L. Denver Co. R.R. Co. v. Orr, 8 Kans. 419; Sanitary District of Chicago v. Boening, 107 N.E. 810; 2 Lewis on Eminent Domain (3 Ed.), Sec. 662; Lanquist v. City of Chicago, 200 Ill. 69 , 65 N.E. 681; City of Chicago v. Lehmann, 104 N.E. 829; Sherlock v. Chicago, Burlington Quincy R.R. Co., 130 Ill. 403 , 22 N.E. 884; Jefferson Park Dist. v. Sournski (Ill.), 160 N.E. 370, 371; R.R. Co. v. LeBlanc, 74 Miss. 726 ; Ry. Co. v. Ryan, 64 Miss. 399 ; State Highway Com. v. Blackburn, 172 Miss. 544 , 160 So. 73 ; Schlicht v. Clark, 114 Miss. 354 , 75 So. 130; State Highway Com. v. Brown, 176 Miss. 23 , 168 So. 277 ; State Highway Com. v. Day, 181 Miss. 708 , 180 So. 794 ; State Highway Com. v. Chatam, 173 Miss. 427 , 161 So. 674 ; Ongel's "Valuation under Eminent Domain," pp. 494-503; State Highway Com. v. Buchanan, 175 Miss. 157 , 166 So. 537; State Highway Com. v. Johnson, 191 So. 820 . The testimony is insufficient to sustain the verdict unless the jury considered the testimony as to offers. State Highway Com. v. Brown, 176 Miss. 23 , 168 So. 277 ; State Highway Com. v. Johnson, 191 So. 820 . We call the court's attention particularly to the old case of Railroad Company v. Ryan, 64 Miss. 399 , which definitely settled in this state the rule that an offer for property is not admissible as evidence of value and to the other recent case cited above, Highway Commission v. Johnson, in which case this court reiterated that old rule. Chaney Culkin, and R.M. Kelly, all of Vicksburg, for appellees. It is a well-established rule of law in all of the courts of this country that if there is any substantial evidence to support a verdict for compensation in condemnation cases it will not be disturbed by the appellate courts. In this connection, we direct the attention of the court to 18 Am. Jur., page 1019, under the heading of Eminent Domain, where it is said: "If there is any evidence to support a verdict or finding as to damages or compensation, the appellate court will not disturb it, unless it is clearly and palpably or flagrantly against the weight of the evidence; or unless it appears that the jury have committed gross and palpable error, or have acted under bias, influence, or prejudice, or have mistaken the rules of law stating the measure of damages." National Box Co. v. Bradley, 157 So. 91 ; L.N.O. T.R. Co. v. Ryan et al., 64 Miss. 399 ; Levee Com'rs v. Lee, 85 Miss. 508 ; Union Planters Bank Tr. Co. v. Rylee, 130 Miss. 892 . We respectfully call the attention of the court to the fact that the facts of this case have been twice passed upon by juries of Warren County. The Highway Commission has taken the property and constructed the highway, and if another jury is called upon to view the premises, nothing can be seen except a concrete highway and an almost perpendicular hillside. To quote Judge Ethridge, in his dissenting opinion in the case of Highway Commission v. Buchanan, 165 So. 799, "The right to have a jury view the premises, should a new trial be granted, is wiped out by the action of the Highway Commission. This right of viewing the premises is a very valuable right to both parties. A jury is able, from observation and experience to determine the character of the property and to what uses it might be put by the owner, and can better judge the value of the property to the owner than would be possible from the mere opinions and testimony of witnesses." The damages shown to have been sustained, by the undisputed evidence, by the appellees, by reason of the taking of their land by the Highway Commission, exceed by far the amount of the verdict, and it is respectfully submitted that the judgment below should be affirmed.