ON THE MERITS. This is an appeal from an award of five thousand dollars made unto the appellees by an eminent domain court, which award was affirmed by the circuit court *Page 187 of Lauderdale county; hence this appeal. The property condemned was owned by the appellees, and was used by the appellant in making improvements on Highway No. 11 where it crosses Highway No. 80, and property on the south side of Highway No. 80, consisting of two and eighty-nine hundredths acres, is being used by the appellees as a homestead in connection with which they ran a small dairy. This property of the appellees faces Highway No. 80, with a frontage of two hundred and fifty feet and a depth of three hundred seventy-seven feet, and had been plotted into lots, but no streets had ever been opened across it.
The highway proposed to be laid out across this property entered it near the southwest corner and proceeded in a northeasterly direction, being one hundred feet wide, and, at the point approaching Highway No. 80, it was flared out so as to make a frontage of two hundred feet on said highway.
Prior to the trial of this cause in the county court where the proceeding was instituted, the property of Mrs. Petit lying north of the Highway No. 80, and having a frontage of sixty feet and a depth of two hundred thirty-five feet, had been sold by her to the State Highway Commission at and for the sum of three thousand two hundred dollars. There was a residence on this property which she was permitted to remove, and the proof tends to show that seven hundred dollars of said three thousand two hundred dollars was for the purpose of having said house moved and repaired thereafter, and two thousand five hundred dollars was to pay for the land. There was also a purchase by the State Highway Commission from one Hawkins of a lot with forty-eight feet frontage lying north of the highway, at a consideration of forty dollars per front foot.
On the trial of the cause, the price of these two lots was offered in evidence, and all the witnesses testifying for the property owners based their opinions as to values and damages upon the price of these two lots. The *Page 188 admission of such testimony was objected to by the appellant, but such objection was overruled.
The owners of property condemned testified that the only way they could value the property was by taking this sale price of the Petit and Hawkins property as a basis, and several witnesses based their judgment of the valuation upon this sale price and its comparison with the property of the appellees. One witness introduced by the State Highway Commission testified that the price paid for the Petit and Hawkins property was grossly excessive.
There was no proof as to whether or not the purchase made by the State Highway Commission was voluntary, or whether the sale by the property owners was voluntary and uninfluenced by the fact that the property was to be condemned by eminent domain proceedings.
There was testimony that the laying out of the highway, as described in the application, would destroy the property for dairy purposes; would necessitate the appellees removing their residence; and that, owing to the situation of the property not taken, it would be difficult to sell it as residence property, and its value therefor would be greatly damaged, if not entirely destroyed. It seems that there had been no other sales of property in that immediate community for some time, and none are shown since 1928.
So, as the record stands, there was no definite, legal basis for finding the damage except by basing it upon the sale price of the Pettitt and Hawkins property.
It is, of course, well settled in this state that benefits shared by a property owner in common with the general public are not to be considered or set off against a property owner's claim for damages.
The property in the case at bar was viewed by the jury, and their view, in connection with the testimony, caused them to render a verdict for five thousand dollars. *Page 189
It is difficult to state, from the testimony, exactly how the appellees' property compared with that lying north of the highway which it had purchased. There is some testimony indicating a similarity, and it is manifest that all the parties testifying were influenced, to some extent, by the sales price of the property lying north of the highway.
The great majority of the courts that have passed upon this question have held that sales values or prices made in condemnation purchases to avoid litigation are not voluntary within the meaning of the law. 10 R.C.L., p. 220 et seq., sec. 188. The courts of New Jersey, Louisiana, and Massachusetts seem to admit evidence of sales made to avoid condemnation proceedings, and sales of like property near the time, to show the value of the property sold to avoid litigation. The reasoning of these authorities is that sales made in contemplation of condemnation proceedings to avoid the uncertainties thereof are not admissible, not being free and voluntary, and there being no meeting of minds as to what is a reasonable and fair value of the property involved, apart from the necessities of the case. One may be willing to take less rather than go through with a lawsuit and take the risks of a jury verdict. On the other hand, the condemnor may be willing to pay more than the actual, fair value of the property to avoid the uncertainties of litigation.
We prefer, in this case, not to lay down any definite and fixed rule upon that question, but we believe that before such evidence is offered and received, if it may be done at all, which we do not here decide, there must be preliminary proof, as a condition precedent to the reception of such evidence, that the parties considering sales were uninfluenced by prospective litigation, and that the minds of the parties on each side met upon the basis of what the actual value was. In other words, the proof must show that the person who has a desire *Page 190 to sell would be willing to take the amount paid regardless of condemnation, and the buyer must be willing to pay the amount for the property taken regardless of prospective litigation.
In condemnation proceedings, a wide latitude is allowed under the law as to values, and usually intelligent and experienced witnesses, having knowledge of property and the uses to which it may be put, and who can give their opinions as to valuations, may be selected. It is not necessary that there should be actual sales made in the particular locality where the condemnation is being had for values to be ascertained, but the judgment of people familiar with property and its value, and with the uses to which such property may be put, will fix such values.
The property here involved is within the corporate limits of the city of Meridian, and we are satisfied that many witnesses may be obtained who are thoroughly familiar with the value of property in that locality, and the uses to which it may be put, and who can, from their knowledge and experience in and around the city, give intelligent and just opinions as to values, without considering sales of adjacent lands probably made for the purpose of avoiding litigation.
We are very reluctant to reverse this judgment, because the highway has been laid out and the road constructed; but we are satisfied that the court below was in error in admitting proof of the two sales under the evidence. The judgment will, therefore, be reversed and the cause remanded.
Reversed and remanded. *Page 191