City of Bruce v. Edwards
City of Bruce v. Edwards
Opinion of the Court
Appellee was awarded damages as a consequence of flooding of his lands from a recently constructed sewer lagoon of the City of Bruce on nearby property. The award was made in the Chancery Court of Calhoun County, wherein appellee sought damages as well as injunctive relief.
Appellee averred in his amended bill of complaint that he owned certain lands in Calhoun County lying north of
Appellee introduced testimony showing substantial expenses which he incurred, and damages suffered by him as a consequence of the wrongful flooding of his property. While his proof was sufficiently clear in regard to a portion of the actual expenses incurred by him on account of the flooding, his proof did not include any amount related to the loss of rental value of his land. A careful study of the record causes us to conclude that the amount of the judgment awarded him over the sum of $2,500 for damages (exclusive of interest) was not based upon substantial evidence and cannot be allowed to stand. We recognize that it is not possible in every case of this type to prove every item of damages with mathematical certainty and precision, but any award must be based upon something that is not entirely speculative or a matter of pure surmise and conjecture. Hudson v. Farrish Gravel Co., 279 So.2d 630 (Miss. 1973).
In our opinion, that portion of the judgment awarding appellee damages over and above $2,500 was not supported by evidence sufficiently clear or based upon testimony adduced. However, since there is no other reversible error, a new trial will be granted on the issue of damages only. We are of the opinion that appellee should have the option of entering a remittitur of $1,458 within ten days from the date that the judgment here becomes final. In the event he enters the remittitur, the original judgment is affirmed for $2,500 plus accrued interest. Otherwise the cause will be reversed and remanded for retrial on the issue of damages only.
Affirmed on the condition of remittitur, otherwise reversed and remanded for a new trial on the sole issue of damages. Costs are assessed equally against the parties.
Reference
- Full Case Name
- CITY OF BRUCE v. Russell EDWARDS
- Status
- Published