IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00926-SCT

MISSISSIPPI TRANSPORTATION COMMISSION

v.

DUDLEY B. BRIDGFORTH, JR., DAVID R.

BRIDGFORTH, BARRY W. BRIDGFORTH,

MARGARET BRIDGFORTH KING SANFORD,

BETTYE B. WHITTEN JENKINS, DAVID ARTHUR

WHITTEN, BETTYE B. WHITTEN FUNDERBURK,

ANDREA CAROL WHITTEN WILLIFORD, MARTHA

FRANCES TARVER, MARY LULA DEAN FISHER,

WILSON BYRD TARVER, JR., CONNIE COCHRAN

CARTER, AND BESSIE LEONA FISHER CHISUM

DATE OF JUDGMENT: 06/13/96

TRIAL JUDGE: HON. JOSEPH C. WEBSTER

COURT FROM WHICH APPEALED: DESOTO COUNTY SPECIAL COURT OF

EMINENT DOMAIN

ATTORNEYS FOR APPELLANT: MICHAEL T. LEWIS

PAULINE SHULER LEWIS

ATTORNEYS FOR APPELLEES: TAYLOR D. BUNTIN, III

BARRY W. BRIDGFORTH, JR.

NATURE OF THE CASE: CIVIL - EMINENT DOMAIN

DISPOSITION: AFFIRMED - 04/02/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 4/23/98

BEFORE PITTMAN, P.J., McRAE AND ROBERTS, JJ.

McRAE, JUSTICE, FOR THE COURT:

¶1. This eminent domain case arises from a jury decision of a Special Court of Eminent Domain in

Tunica County (1) finding that the landowners, members of the Bridgforth family, were entitled to just

compensation of $267,919 from the Transportation Commission for some 4.32 acres of land taken

for the widening of Goodman Road in DeSoto County. The Commission appeals the amount of the

jury award as well as the propriety of the Special Court's order granting the landowner's motion in

limine to keep from the jury evidence of grave sites discovered nearly a year after the Commission
took title to the property. Finding that the Special Court did not err in granting the motion in limine

or in admitting the testimony of the landowner's expert appraiser and that there is substantial

evidence in the record to support the jury's verdict, we affirm the award of compensation.

I.

¶2. On September 8, 1993, the Mississippi Transportation Commission filed a petition in DeSoto

County for the organization of a Special Court of Eminent Domain to consider condemnation of the

Bridgforth property. The Commission's Motion for Order Granting Petitioner Immediate Title and

Possession was granted on December 10, 1993. The independent appraisal of the property as of

September 8, 1993, based on the value of the 4.32 acres taken, the "before" value of the total

property, the "after" value of the total property, and any damages to the remaining property resulting

from the partial taking, was $75,600.

¶3. On April 15, 1994, the landowners filed a Statement of Values, asserting that the fair market

value of the condemned property, as of the date the complaint was filed, was $267,919. They claimed

no damage to the remainder of property and sought compensation in the amount of $267,919.

¶4. On January 11, 1996, the landowners filed a motion in limine to keep from evidence any mention

of the presence or possible presence on the property of any "grave sites, graves, caskets, and/or

human remains." They maintained that there was no evidence to show that the presence or possible

presence of grave sites on the property reasonably would have been known to a hypothetical buyer

and seller at the time of the taking, and further, that no facts had been developed to indicate that such

knowledge would affect the fair market value of the property. In its February 21, 1996 response, the

Commission asserted that the motion in limine should be denied, arguing that the existence of a

cemetery in the area was common knowledge and would have been discovered by a reasonable buyer

and seller. The Commission further contended that the presence of grave sites affected the fair market

value of the property and that the probative value of the evidence of such grave sites outweighed any

possible prejudice. Finding that there was no evidence that either party had any knowledge that there

were any grave sites on the property at the "time of the taking," the Special Judge granted the motion

in limine.

¶5. On June 11, 1996, a jury of the Special Court of Eminent Domain in Tunica County found that

the landowners were entitled to compensation of $267,919 for the taking of the subject property. The

Commission filed its motion for j.n.o.v. and alternate relief on June 18, 1996, asserting that the

Special Court erred in excluding evidence of existence of a cemetery on the property and that the

landowners' expert improperly valued the property. The Special Court overruled the motion in an

August 1, 1996 order.

II.

¶6. The Bridgforth property is a 4.32 acre tract of land at the intersection of Goodman and Pleasant

Hill Roads near Olive Branch in DeSoto County. It is located in a rapidly developing area near

Highways 61 and 78 and was acquired by the Commission on September 8, 1993, for the expansion

of Goodman Road from two to five lanes. The land at issue is part of a larger tract, comprising some

37.25 acres of farm land, that has been in the Bridgforth family since the early 1900s. The plot

involves some thirteen hundred feet of frontage, just short of a quarter of a mile, along Goodman
Road, and approximately one thousand feet of frontage along Pleasant Hill Road.

¶7. Because two adjacent churches and cemeteries were located near the site and there had been

rumors of an "old slave or colored cemetery" on Pleasant Hill Road, the Commission's Environmental

Section looked at the site prior to the letting of any contracts.(2) There were no tombstones or signs

designating a cemetery on the site. The Commission received permission from the landowners to

bush hog the area and found nothing. Metal detectors were used to look for coffin nails, but found

nothing. Although no evidence of any graves or grave sites was found, William York, the

Commission's spokesperson, stated in his deposition that the contractors were directed to work

carefully and remove earth from the construction site in six to eight inch lifts.

¶8. On September 16, 1994, nearly a year after the "quick take" order was entered in December,

1993, construction workers found a coffin handle while working on the Goodman road right-of-way.

Construction was halted and digging down to a level three feet below the natural ground level, five

grave sites were found, at least two of which contained human remains. Further examination of the

site was made with a ground radar penetrating device, revealing one more grave on Goodman Road

and nine potential grave sites on Pleasant Hill Road. Working into the Spring of 1995, a total of eight

grave sites were uncovered on the Goodman Road site by archaeologists from Memphis and the

University of Alabama, after which the area was declared free of graves. Permission was obtained

from chancery court to move the remains to the city cemetery in Hernando.

¶9. Laney Funderburk, whose wife's mother was a Bridgforth, grew up near the property and first

heard rumors about a cemetery on the property after the condemnation proceedings began. He knew

of no rumors about a cemetery surfacing back in the 1960s when Pleasant Hill Road was widened.

David Bridgforth, another family member, who farmed several hundred acres of land around the site

between 1990 and 1995, had never seen any evidence of graves or grave sites when quail hunting on

the land where remains were found. He indicated in his deposition that he first heard rumors about a

cemetery after the right-of-way proceedings began. Barry Bridgforth, Sr. likewise testified that he

had no prior knowledge of any cemetery on the site. He noted, too, that elderly relatives, likewise,

had no knowledge of any graves or grave sites.

¶10. In depositions taken in 1996, several area residents substantiated the rumors the parties had

heard prior to and after the taking. They recalled an old cemetery on the Bridgforth property across

from the schoolhouse once located on Pleasant Hill Road, on the St. Paul's Missionary Baptist

Church and Cemetery property. All had attended the school between the late 1920s and early 1950s.

Pleasant Hill Road, at that time, was a narrow two-lane gravel road, first widened around 1960.

Goodman Road was a dirt road, barely wide enough for two cars to pass. Each remembered seeing

some grave markers in the woods across from the school where, as small children, they had gathered

brush wood for the school. One elderly man, however, stated that he was told there was a cemetery

back where he and the other children gathered wood, but "Wasn't no tombstones there. I ain't never

seen none. There wasn't nothing there, not then. I ain't never seed nothing, and went in there for

years and never seed one."

¶11. When the landowners learned of the rumors, they hired a Memphis archeologist, Guy Weaver,

to investigate. Weaver identified two areas, known as Locus 1 and Locus 2, as possible cemetery

sites. Locus 1 was located on the crest of a ridge northeast of the intersection of Goodman and
Pleasant Hill Roads. It ran north to south, with the northern section located on the Bridgforth's

remainder land and the southern section extending onto the right-of-way. Locus 2, on the next ridge

west of Locus 1, adjacent to Pleasant Hill Road, was located entirely on the Bridgforth remainder

property. Using a combination of probing and backhoe trenches, no positive indications of grave sites

were found in Locus 1. In Locus 2, using the same methods, Weaver found sixteen grave sites, at

which point the landowners requested that he concentrate on finding the boundaries of the cemetery.

He ultimately found thirty-five suspected graves and estimated that there could be as many as 125 to

175 graves if the density of the entire site was the same as that of the area tested.

¶12. The Commission's appraiser, Lucy Griffin, used the comparable sales approach to arrive at her

valuation of the property. She looked for sales of undeveloped tracts of land ranging from ten to

thirty acres. Looking at three sales she believed to be comparable, and making adjustment for size,

location and time of sale, Griffin arrived at a value of $19,000 per acre for the property. She

therefore computed the "before" value of the 37.25 acre tract at $712,900. Reducing the size of the

property by the 4.32 acres taken by the Commission to 33.2 acres, Griffin calculated the "after" value

at $630,800. Subtracting the "after" value from the "before" value, Griffin determined that just

compensation for the property taken was $82,100.(3) She further opined that there was no damage to

the remainder property.

¶13. On cross-examination, it was brought out that only one of the three comparable sales utilized by

Griffin in her computations was made within two years of the taking of the Bridgforth property. The

others were between three and five years prior to the taking. Further, although Griffin assigned a

figure of $19,000 per acre to the Bridgforth property, the three comparable sales she used, after

adjustments, were $21,000, $19,500 and $21,000. It further was pointed out on cross-examination

that the sale of one comparable property was to another family member, another comparable property

was zoned only for industrial and not commercial use, and in the third instance, Griffin neglected to

take into account the most recent sale of the property for $139,000 an acre.

¶14. Don Harris, the landowners' appraiser, also used a comparable sales approach to valuing the

property. As distinguished from Griffin's method of valuing the entire tract at one price per acre,

however, Harris stated that the property had two separate highest and best uses and provided two

sets of comparable sales figures. While the bulk of the property was best suited to future large scale

commercial, such as a shopping center, the highest and best use of the land directly located on the

corner of Goodman and Pleasant Hill Roads, some 5.658 acres, was high density commercial, such as

gas stations, fast food restaurants, banks and motels. He arrived at the 5.658 acre figure, or 246,450

square feet, taking into consideration the access restrictions created by the intersection and

encompassing a property width of 465 feet along Goodman Road and a property depth of 530 feet

along Pleasant Hill Road. Using comparable sales and adjusting them for site characteristics as Griffin

did, Harris arrived at a value estimate for the 5.658 acre high density commercial area of $2.00 per

square foot. For the larger parcel that he characterized as "future commercial large commercial,"

Harris arrived at a dollar value of $1.15 per square foot, based on comparable sales of $1.10 to $1.23

per square foot, and extremes of $1.10 to $1.63 per square foot. Because he thought that the

property could take as long as three years to sell once it was placed on the market, he adjusted the

price downward at rate of ten percent per annum for three years, to $.85 per square foot. He further

adjusted the value downward by $15,453 for the cost of extending sewer service to the property. He

calculated the "before" value of whole tract at $1,746,458. Subtracting the 4.32 acres taken by the
Commission, he arrived at an "after" value of $1,478,539. Harris concluded that the State was taking

95,575 square feet of the high intensity commercial property and 92,604 square feet of the larger

commercial tract. Further allowing for an adjustment for the cost of sewer extensions, he calculated

the just compensation due the landowners for the taking of the property at $267,919.

III.

¶15. The Special Judge granted the Bridgforths' motion in limine to exclude from the eminent domain

proceedings any evidence of the existence or possible existence of grave sites or a cemetery on the

property. In his written opinion and order, the Special Judge stated "[h]owever one looks at this

'problem' the question still reverts to one and only issue and that is -- would a reasonably well

informed buyer and seller have known of the existence or possible existence of graves on the subject

property in September, 1993." The Transportation Commission first contends that the Special Judge

applied the wrong legal standard by looking at what a "reasonably well-informed" buyer and seller

would know rather than parties who were "fully" informed. The Bridgforths, however, assert that the

Transportation Commission is judicially estopped from challenging the use of a legal standard it

espoused throughout the motion hearing and further, that it is procedurally barred from raising on

appeal an issue to which it did not object in the proceedings below.

¶16. Throughout the motion in limine proceedings, the Transportation Commission consistently

maintained that the correct legal standard for the court to apply was that of the "reasonable" buyer

and seller. Paragraph 2 of the Commission's response to the Bridgforths' motion in limine clearly

states: "A reasonable buyer and seller would have discovered the cemetery. The cemetery's existence

was common knowledge." At the motion hearing, the Commission's attorneys reiterated their reliance

on the "reasonably well-informed standard." However, the landowners' argument that the

Commission is judicially estopped from asserting that a wrong legal standard was employed is

without merit. Judicial estoppel is applicable where there has been more than one lawsuit between the

same parties and one party knowingly asserts a position inconsistent with that taken in the prior

litigation. State ex rel. Holmes v. Griffin, 667 So. 2d 1319, 1324 (Miss. 1995); Hoover v. State, 552

So. 2d 834, 838 (Miss. 1989). The Commission is not now asserting a position inconsistent with one

taken in separate litigation with the landowners; rather, it is merely taking a different position than it

took earlier in the same case. It cannot be said, therefore, that the Commission is judicially estopped

from raising this argument on appeal.

¶17. The Special Court of Eminent Domain, however, should not be found in error for looking at

valuation in terms of what the buyer and seller reasonably would have known at the time of the

taking. In the takings context, this Court has defined fair market value as "the sales price that would

be negotiated between knowledgeable and self-interested persons, one who wants to purchase and

one who wants to sell, the seller being under no obligation or compulsion to sell, and the buyer being

under no necessity of having the property." Potters II v. State Highway Comm'n of Mississippi, 608

So. 2d 1227, 1231 (Miss. 1992). In Oughton v. Gaddis, 683 So. 2d 390 (Miss. 1996), where the

highest and best use of land to be taken so as to provide access to a land-locked property was at

issue, we reiterated that "to make the fair market value assessment, 'all the facts as to the condition of

the property and its surroundings, its improvements and capabilities, may be shown and considered in

estimating its value.'" Oughton, 683 So. 2d at 393-394 (quoting Mississippi State Highway

Comm'n v. Hillman, 189 Miss. 850, 870, 198 So. 565, 571 (1940)). The Commission relies on Bear
Creek Water Ass'n, Inc. v. Town of Madison, 416 So. 2d 399 (Miss. 1982), where not land, but the

valuation of a going business and its certificate of public convenience and necessity was at issue. In

that case, this Court stated that "the determination of fair market value necessarily requires that both

the purchaser and the seller be fully informed of all circumstances involving the value and use of the

property so that an approximation of its present worth might be determined." Bear Creek, 416 So.

2d at 403. As the landowners point out, the Court also stated that it is important to consider, as of

the date of the taking, "all of the factors that a businessman or concern would reasonably consider in

determining Bear Creek's value in an open market." Id. at 402. The Special Court should not be held

in error for considering what a reasonably well-informed buyer and seller would have known at the

time of the taking; nothing in our case law imparts the level of omniscience the Commission now

seeks to impose.

IV.

¶18. The Transportation Commission further argues that if this Court should find that the Special

Judge was correct in making an inquiry into whether a "reasonably well-informed buyer and seller"

would have known about the cemetery, it should have been handled as a matter of conditional

relevancy pursuant to Miss. R. Evid. 104(b).(4) The issue was raised, however, not as an evidentiary

ruling at trial, but as a motion in limine to exclude evidence.

¶19. The primary purpose of the motion in limine is to exclude evidence that would be highly

prejudicial to the moving party. Gifford v. Four-County Electric Power Ass'n, 615 So. 2d 1166,

1172 (Miss. 1992). Therefore, a motion in limine should be granted only when "(1) the material or

evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer,

reference, or statements made during trial concerning the material will tend to prejudice the jury."

Whittley v. City of Meridian, 530 So. 2d 1341, 1344 (Miss. 1988)(quoting State v. Quick, 226 Kan.

308, 311, 747 P.2d 1108 (1979)). See also, McCord v. Gulf Guaranty Life Insurance Co. 698 So.

2d 89, 91 (Miss. 1997); Davis v. Neshoba County General Hospital, 611 So. 2d 904, 906 (Miss.

1992).

¶20. Asked at the motion in limine hearing why a reasonably well-informed buyer and seller would

want to know of the existence of a cemetery on the subject property, Gary Williams, an Eminent

Domain Specialist for the Commission, responded:

Well, number one: the stigma associated with commercial enterprise building on the property,

or in an [sic] cemetery area could cast them in the light of not only maybe doing something

illegal, but it could cast them in an uncaring light. People, typically people who have had their

forbearers [sic] buried there could take a strong exception to it, and even boycott the

commercial facility.

Indeed, Williams further testified that when the Commission knew of a cemetery in the path of a

planned road, it would shrink the right-of-way, locate around the site, or as a last resort, move the

graves. But for the cost of moving any graves or human remains found, however, no other evidence

was given that the presence of graves or grave sites on the property might have an impact on its

market value. There is no probative value to the discovery of grave sites in the Goodman Road rightof-way nearly a year after it was taken by the Commission in a trial to determine the adequacy of

compensation paid for the "quick take." Further, at the time of the taking, the parties had made
reasonable efforts to substantiate rumors of a cemetery and found no evidence. If the evidence was

not relevant and had no probative value that would outweigh any prejudicial effect upon the jury, it

would not be admissible. Further, if the pre-trial publicity about the discovery of the grave sites was

sufficiently prejudicial to warrant a change of venue from DeSoto to Tunica County, introduction of

evidence of their discovery at trial, likewise, would have to be considered prejudicial. We therefore

do not hold the Special Court in error for granting the motion in limine.

IV.

¶21. The Transportation Commission next asserts that even if the Special Court utilized the correct

legal standard and that it was the proper entity to determine whether a reasonably well-informed

buyer and seller would have known of the existence or possible existence of a cemetery on the

property, its finding that a reasonably well-informed buyer and seller would not have known of this

cemetery was an abuse of discretion. In support of its argument, the Commission emphasizes facts

which came to light after the time of the taking and transfer of title to the Commission. Without

citing any authority, the Commission further stated:

The landowners and the Court emphasized the fact that the Highway Department sent its

environmental people to the scene and could not confirm the existence of a cemetery. However,

we do not look to the actions of the condemning authority. Rather, we look to a hypothetical

buyer and seller. Based upon all of the facts set forth in the statement of facts, the evidence is

overwhelming that a reasonably well informed buyer and seller would have known of the

existence or possible existence of the cemetery.

¶22. The record indicates that there was no physical or documentary evidence of a cemetery or grave

sites on the property; to wit, no sign, no headstones and no deeds or other written records on file

anywhere. Landowners, family members who have known the property for nearly a century, knew

nothing of any graves or grave sites on the property. Because of the proximity of two churches and

adjoining cemeteries, the Commission's Environmental Section physically examined the site prior to

the taking and found no evidence of graves or grave sites.(5) Its efforts, including bush hogging the

property and using a metal detector, revealed nothing. Commission personnel acknowledged that

rumors, many of which came to light only after the taking, of a cemetery or grave site could not be

substantiated. Moreover, the landowners also made every possible effort to investigate reports of a

cemetery on the property after they became aware of the rumors which surfaced after the taking.

Most of those rumors, as well as the recollections(6)of the individuals who attended the school on

Pleasant Hill Road in the 1930s, 1940s and 1950s, indicated that any possible grave sites probably

would be on the Pleasant Hill Road side of the property, not along Goodman Road, where the actual

grave sites were uncovered during construction. The landowners, too, hired an archeologist who

discovered suspected grave sites on their property near the Commission's right-of-way on Pleasant

Hill Road, but not actually on the land acquired by the State. Further, they contacted Mildred Scott, a

local genealogist who is active in a group that keeps up the old cemeteries in the county.(7) Finally,

despite all of these efforts by both the Commission and the landowners, some of the grave sites on

the condemned property were revealed only after construction was halted and the area was

investigated even more extensively.

¶23. It appears from the record that despite the extraordinary efforts of both the Commission and the
landowners to ascertain whether there was a cemetery or graves or grave sites on the property, no

actual evidence appeared until construction was in progress, well after the date of the taking. While

both buyer and seller, who, to say the very least, were reasonably well-informed, might have had

knowledge of rumors of a cemetery, graves or grave sites on the property, there was no evidence at

the time of the taking to substantiate those rumors, despite efforts made to explore the area because

of the proximity of old churches and cemeteries. Furthermore, talk of an old cemetery centered

around the site on the Bridgforth property on Pleasant Hill Road, on land not taken by the

Commission, not the Goodman Road right-way-of-way, where the grave sites actually were found

during construction. The Special Judge did not abuse his discretion in the findings made.

V.

¶24. The Highway Commission next asserts that there was insufficient evidence to support the jury

verdict, thus warranting a j.n.o.v., or, in the alternative, that the verdict was contrary to the

substantial weight of the evidence and a new trial should be granted. Further, although no effort has

been made to relate the law to the facts of the case, the Commission has gone to great lengths to set

out for this Court the law on remittiturs and additurs. The Commission's evidentiary argument is twofold: that the testimony of the landowner's expert is based on an imaginary tract and further, that the

expert's opinion did not properly apply the before and after rule. The landowners, in response, rely on

this Court's decisions in Oughton v. Gaddis, 683 So. 2d 390, 394 (Miss. 1996) and Mississippi State

Highway Comm'n v. Hancock, 309 So. 2d 867, 870-871 (Miss. 1975), asserting that Harris

properly assigned different values to different parts of the property. Further, they contend that there

is no evidence of bias, passion, prejudice or any other improper motive so as to warrant the granting

of a remittitur to the Commission.

¶25. The jury was presented with two different valuations of the property. The Commission's

appraiser, Lucy Griffin, valued the property taken at $19,000 an acre, based on the comparable sales

approach to valuation. She valued the entire parcel on general commercial use and arrived at a value

for the property taken at $82,100. On cross-examination, the properties used for her comparable

sales were assailed by the landowners on the basis of distance in time from the date of the taking,

differences in zoning, and less than arms length transactions.

¶26. Harris, the landowner's appraiser, in contrast, looked at the highest and best use of the property,

assigning a higher value to that part of the land immediately adjacent to the intersection of Goodman

and Pleasant Hill which was suitable for high intensity commercial development. Thus, he used two

sets of comparable sales figures: one, on large scale future commercial development; the other, on

high density commercial use. He assigned a value of $2.00 per square foot to the small area suited for

high intensity commercial development and $.85 per square foot to the large scale commercial area.

On cross-examination, the Commission attempted to discredit his assignment of different uses to the

property.

A. Harris' Testimony

¶27. The admission of testimony is within the discretion of the trial court and will be reversed only

where there is an abuse of that discretion. Mississippi Transportation Comm'n v. Fires, 693 So. 2d

917, 920 (Miss. 1997); Terrain Enterprises, Inc. v. Mockbee, 654 So. 2d 1122, 1228 (Miss. 1995).

Where a court has exercised its discretion in such a way that it misperceives the correct legal
standard for the admission of evidence, the deference customarily afforded the lower court will be

precluded because the error has become one of law. Fires, 693 So. 2d at 920; Bean v. Broussard,

587 So. 2d 908, 913 (Miss. 1991).

¶28. The Commission first argues that Harris' valuation of the subject property is based upon an

imaginary tract of land with an unbelievably high price per square foot. They cite Mississippi State

Highway Comm'n v. Valentine, 239 Miss. 890, 124 So. 2d 690 (1960), for the proposition that:

It is the duty of this Court to determine whether there is any reasonable, believable evidence

which will support the verdict in this case. A proper exercise of the judicial function does not

require us to believe the incredible. Appellees' witnesses are competent to testify, but because of

the extreme, unreasonable, and unsupported valuations which they placed on the land, as

analyzed above, their testimony has little probative value.

239 Miss. at 895- 96, 124 So. 2d at 692 (citations omitted). The Commission focuses on Harris'

testimony on cross-examination, where he was questioned about the "imaginary tract" to which he

had assigned a higher value. Harris' testimony on direct examination laid a foundation for the

assignment of a higher value to that land bordering the intersection as well as for the delineation of

that particular square footage to which he assigned a value based on high intensity commercial use.

¶29. As distinguished from the Commission's appraisal based on a single per acreage value for the

total property,(8) this Court has stated that a piece of property "can have several highest and best

uses, and that its value should not be calculated based upon the value of the dominant use. Our case

law does not require that property have a constant per acreage value based upon a single best use."

Oughton v. Gaddis, 683 So. 2d 390, 395 (Miss. 1996)(emphasis added). In Oughton, where we

found that the lower court erred in finding that the property at issue had only one use: either

agricultural or recreational and in disallowing testimony that the area where the easement was to be

laid was part of the more valuable river front property, several cases from other jurisdictions were

noted with approval for the proposition that:

When the highest and best use of the property is not uniform throughout the tract in question,

an appraiser may testify to the highest and best use for the different portions of the full tract

involved. This rule makes sense in light of the purpose of the "just compensation" provision in

the constitutions. . . .

Here, the State seeks to take a portion of the full tract that includes a larger percentage of

buildable, nonwetland property than does the tract as a whole. Consequently, the application

here of the State's proposed rule, that an appraiser must offer only one valuation considering the

total value of the entire parcel, would misrepresent the value of the specific land portion to be

taken.

Dep't of Transp. v. HP/Meachum Land Ltd. Partnership, 245 Ill. App. 3d 252, 185 Ill. Dec.

351, 614 N.E. 2d 485, 488 (1993) (citations omitted). "[G]enerally the market value of the

particular part of a tract expropriated is determined by the actual market value of the portion

taken, and not by its average per-acre or square-foot value as a pro rata portion of the parent

tract." State Through Dept. of Highways v. LeDoux, 184 So. 2d 604, 610 (La. Ct. App. 1966)

.
Oughton, 683 So. 2d at 395. This is consistent with a long line of Mississippi cases which recognize

that a property might have more than one highest and best use. See Dennis v. City Council of

Greenville, 646 So. 2d 1290, 1293 (Miss. 1994)(property can have "various uses"); Potters II, 608

So. 2d at 1233("Within commercial properties, there are many uses of differing values."); Daniels v.

Board of Supervisors of Clarke County, 323 So. 2d 748, 749 (Miss. 1975)(property valuation not

limited to present use, "but with reference to any use to which it is reasonably adapted"); Mississippi

State Highway Comm'n v. Hancock, 309 So. 2d 867 (Miss. 1975)(property's value enhanced by its

adaptability to different uses); Mississippi State Highway Comm'n v. Brooks, 239 Miss. 308, 316-

317, 123 So. 2d 423 (1960)(property taken should be valued not just with reference to present use,

but to highest and best use); State Highway Comm'n v. Brown, 176 Miss. 23, 33, 168 So. 277, 279

(1936)(property may have several uses or purposes and consideration must be given to fair market

value of each).

¶30. As discussed in Fires, condemned land "should be appraised with reference to any use to which

it is reasonably adapted, and therefore, the best or most valuable use to which the property could

reasonably be expected to be adapted is the use which should be considered, regardless of the current

use of the property." Fires, 693 So. 2d at 922; Brooks, 239 Miss. at 316- 317, 123 So.2d at 427.

Further,

[t]o warrant admission of testimony as to the value for purposes other than that which the land

is being put, or to which use is limited by ordinance at the time of the taking, the owner must

first show: (1) that the property is adaptable to the other use; (2) that it is reasonably probable

that the property will be put to the other use within the immediate future, or within a reasonable

time; (3) and that the market value of the land has been enhanced by the other use for which it

is adaptable.

Fires, 693 So. 2d at 922 (citing Mississippi State Highway Comm'n v. Rogers, 236 Miss. 800, 112

So. 2d 250 (1959)). The potential for development is a factor to be considered in determining the

value of the property. Paulk v. Housing Authority of the City of Tupelo, 204 So. 2d 153, 155

(Miss. 1967). However, "'[m]ere speculative uses cannot be considered.'" Mississippi State Highway

Comm'n v. Wagley, 231 So. 2d 507, 509 (Miss. 1970)(quoting Brooks, 239 Miss. at 316, 123 So.

2d at 427). "There must be a present demand for the land for such purpose or a reasonable

expectation of such demand in the near future." Brooks, 239 Miss. at 317, 123 So. 2d at 427;

Redevelopment Authority of the City of Meridian v. Holsomback, 291 So. 2d 712, 714 (Miss.

1974).

¶31. Harris' testimony was neither speculative nor inconsistent with the present zoning of the land.

Our case law recognizes that a parcel of land might have more than one highest and best use. Indeed,

Harris provided an adequate foundation for the delineation he made between that part of the property

to which he assigned a higher value and that to which the lower large scale commercial valuation was

applicable. Further, as discussed infra, Harris' valuation was proper pursuant to Hancock and

Oughton.

B. Hancock

¶32. The Commission further asserts that Mississippi State Highway Comm'n v. Hancock, 309 So.
2d 867 (Miss. 1975), which this Court reaffirmed in Oughton, supra, is inapplicable because, as

distinguished from the case sub judice, where the land could be used either for agricultural purposes

or residential development, there is only one highest and best use of the land now at issue:

commercial. However, as we recognized in Potters II, "[w]ithin commercial properties, there are

many uses of differing values." 608 So. 2d at 1233. Indeed, Harris testified that while the larger

parcel was suitable for future commercial sales, the highest and best use of the 5.658 acres at the

intersection was high intensity commercial, such as service stations, motels, and fast food restaurants.

His findings, too, were well within the parameters of the property's zoning for commercial use.

¶33. Next, the Commission suggests that even if Hancock is applicable, then it is bad law and should

be overruled. The Commission argues that "[i]n all cases where a road is widened, the portion of the

property adjacent to the highway is always the most valuable, particularly in a commercial situation.

If we view the law as the Court in Hancock did then the Court would always pay the landowner an

inflated value for the commercial footage even though the landowner has the same frontage after

condemnation." In essence, the Commission's objection to Hancock appears to be based on its

reinforcement of the principle that fair market value should be paid for property taken.

¶34. In Hancock, the Commission condemned property on either side of Highway 49 to widen it to

four lanes. While the larger parcel from which the land was taken was used for agricultural purposes,

there was evidence that the highest and best use for the land along the highway was rural residential.

Hancock, 309 So. 2d at 868-869. Thus, the Commission championed a valuation based on $300 to

$350 an acre based on agricultural use of the entire parcel. The landowner, however, introduced

evidence that anywhere from 100 to 280 acres of the 1,359 acre larger parcel was valued at $1,250

per acre for residential use. Id. The Hancock Court found that this evidence was both relevant and

competent, and properly before the jury to consider its weight and credibility. Id. at 870. It

summarized the Commission's argument as follows:

Apparently, the appellant is actually contending the testimony of the witnesses for the

landowners has no probative value because they failed to take into consideration the fact that

following the widening of the highway, the landowners have other land that is now classified as

farm land, which can afterwards be substituted for the residential property taken. Thus, the

landowners will still have as much residential property as they had before the taking.

Consequently, the appellant argues that the appraisers could only value the land taken as farm

land. We find no merit in this contention.

Hancock, 309 So. 2d at 870-871. This is essentially the same argument the Commission appears to

make in the case sub judice in its assertion that the landowners still have the same high intensity

commercial acreage they did before, even though they have less land for large scale commercial

development. However, as we further explained in Hancock,

The rule in this state is that when a part of a larger tract of land is taken for public use, the

owners should be awarded the difference between the fair market value of the whole tract

immediately before the taking and the fair market value of the remaining property immediately

after the taking, without considering the general benefits or injuries to the use of the taken land.

This rule leaves no room for a deduction for any enhancement of the remaining land due to

the nature of the facility to be built on the land taken. Furthermore, the landowner is entitled to
due compensation not only for the value of the property actually taken, but also for the

damages, if any, which may result to the landowner as a consequence of the taking without any

deduction therefrom on account of any supposed benefits incident to public use for which the

application is made. Pearl River Water Supply District v. Wood, 252 Miss. 580, 172 So. 2d

196 (1965) and Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So.

565 (1940).

Although approaching it in a novel manner, what appellant is contending amounts to nothing

more than a contention that the widening of the highway will enhance the value of other land

not taken and consequently, it is entitled to a set off of the value of the enhancement from the

value of the land taken. While this is the rule in some jurisdictions, it is not the rule in this

state.

Hancock, 309 So. 2d at 871 (emphasis added). See also State Highway Commission v. Chatham,

173 Miss. 427, 433, 161 So. 674 (1935)("the rule in this state is familiar to all that when a part of the

property so enhanced in value is to be taken for the public improvement, no deduction is to be made

out of the value of the part taken on account of the enhancement to the value of the remainder not

taken."). We find no merit or authority for the Commission's invitation to overrule Hancock, save its

apparent desire to pay less than fair market value for properties taken.

C. The Jury's Award

¶35. In State Highway Comm'n of Mississippi v. Havard, 508 So. 2d 1099 (Miss. 1987), this Court

quite thoroughly set forth the standard of review for jury verdicts in eminent domain cases as follows:

As in the case of any other jury determination of damages, we are not at liberty to order a new

trial unless the verdict is so at variance with the evidence as to shock the conscience of the

court. Except where the verdict is grossly excessive and evinces bias, passion and prejudice by

the jury, we have no authority to require the prevailing party to submit to a second adjudication.

This rule applies in eminent domain cases as in others. See, e.g., Mississippi State Highway

Commission v. Franklin County Timber Co., Inc., 488 So. 2d 782, 787 (Miss. 1986);

Trustees of Wade Baptist Church v. Mississippi State Highway Commission, 469 So. 2d

1241, 1245 (Miss. 1985); Mississippi State Highway Commission v. Baker, 241 Miss. 738,

133 So. 2d 277, 278-79 (1961); Mississippi State Highway Commission v. Ellzey, 240 Miss.

689, 128 So. 2d 561, 562 (1961).

We are particularly loathe to disturb a jury's eminent domain award where, as here, the jury has

personally viewed the premises. Ellis v. Mississippi State Highway Commission, 487 So. 2d

1339, 1342 (Miss. 1986); Mississippi State Highway Commission v. Terry, 288 So. 2d 465,

466 (Miss. 1974); Mississippi State Highway Commission v. Turnipseed, 236 Miss. 764, 766-

67, 111 So. 2d 925, 926 (1959). We have gone so far as to suggest that, where the jury has

viewed the property being taken, any substantial evidence in the record supporting the jury's

damage assessment will preclude reversal in this Court. Mississippi State Highway

Commission v. Franklin County Timber Co., Inc., 488 So. 2d at 787; City of Jackson v.

Landrum, 217 Miss. 10, 63 So. 2d 391 (1953).

Havard, 508 So.2d at 1105. In the case sub judice, the jury traveled from Tunica County to DeSoto
County to view the property. It was presented with the testimony of two expert witnesses. One

valued the property as a total parcel with only one possible use, using comparable sales figures that

were largely discredited on cross-examination. See Fires, 693 So. 2d at 923("this Court encourages

the judge to allow liberal cross-examination to permit testing of the true utility of comparable sales. .

. [h]owever, if the evidence shows that the comparables are entirely different from the property

taken, then the valuation should be discredited."). The other testified that the property had more than

one highest and best use; that part of it was suitable for large-scale commercial development and

part, at the intersection of Goodman and Pleasant Hill Roads, should be valued at the higher price

commanded by high intensity commercial property. Among the many comparable sales figures

presented was the January, 1992 sale of a high intensity parcel across the intersection from the

landowners' property for an adjusted price of $3.67 per square foot. There is substantial evidence in

the record to support the jury's findings. Further, we cannot say, nor does the Commission present

any evidence to suggest, that the jury's award is the result of bias, passion or prejudice, or that it

should shock the conscience of this Court.

V.

¶36. The Special Court of Eminent Domain properly granted the landowner's motion in limine to

keep from the jury evidence of graves and grave sites found on the site after the Commission received

title to the land pursuant to our statutory "quick take" procedure. Efforts were made to investigate

rumors known to the parties about an old cemetery on Pleasant Hill Road, but no actual evidence of

any grave sites on Goodman Road actually came to light until at least a year after the taking. As to

those rumors circulating at the time of the taking, an abandoned cemetery ultimately was found on

Pleasant Hill Road well after the taking --on the landowners' remaining property, and not on the

Commission's right-of-way. Valuation is based on factors known at the time of the taking. The

discovery of graves and grave sites during construction is not relevant to the valuation of the

property at the time of the taking and further, the pre-trial publicity the discovery generated was

sufficiently prejudicial to warrant a change of venue. Under the facts of this case, the Special Court

properly kept the evidence from the jury.

¶37. The testimony of the landowners' appraiser, Don Harris, was properly admitted. His testimony

was not speculative and he provided an adequate foundation for the appraisal of two distinct highest

and best uses of the land. Hancock, indeed, is applicable to the case sub judice and we decline the

Commission's invitation to overrule it. Finally, there is substantial evidence in the record to support

the jury's award to the landowners. We therefore affirm the decision of the Special Court of Eminent

Domain.

¶38. JUDGMENT IS AFFIRMED.

SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, MILLS AND WALLER, JJ.,

CONCUR. PRATHER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED

BY SMITH, J.

PRATHER, CHIEF JUSTICE, DISSENTING:
¶39. I respectfully dissent. In my view, this Court has already spoken on the issue of the standard

properly employed in the case at bar. As noted by the majority, this Court held in Bear Creek Water

Ass'n v. Town of Madison, 416 So.2d 399, 403 (Miss. 1982) that "the determination of fair market

value necessarily requires that both the purchaser and the seller be fully informed of all circumstances

involving the value and use of the property so that an approximation of its present worth might be

determined." The majority distinguishes Bear Creek based on the fact that Bear Creek involved the

valuation of a going business, but I read nothing in the central holding of Bear Creek which reserves

the "fully informed" standard to cases involving a "going business." To the contrary, this Court in

Bear Creek held that the "fully informed" standard should be utilized in the valuation of "property."

¶40. I therefore consider the "fully informed" standard to be applicable to the case at bar, and not the

"reasonably well-informed" standard utilized by the trial court. Any doubt in this regard is removed

by the fact that, in setting forth the "fully informed" standard in Bear Creek, this Court approvingly

cited Wheeler v. State Highway Comm., 212 Miss. 606, 55 So.2d 225 (1951) and Mississippi State

Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565 (1940). This Court in Wheeler held that

"[t)]he jury has a right to take into consideration any element which will affect the fair market value

of the land remaining." Wheeler, 212 Miss. at 614, 55 So. 2d at 227. This Court in Hillman similarly

held that "[a]ll the facts as to the condition of the property (land) and its surroundings, its

improvements and capabilities, may be shown and considered in estimating its value'." Hillman, 189

Miss. at 870, 198 So. 2d 571 (citations omitted).

¶41. I see very little room for uncertainty in this Court's holdings that "any element which will affect

the fair market value of the land remaining" and "all the facts as to the condition of the property" may

be considered by the jury in determining the value of property. There is clear evidence in the record

that the existence of a cemetery under property may affect the value of the property, and this

evidence was relevant under Bear Creek/Wheeler/Hillman. In my view, the jury should therefore

have been permitted to consider the existence of the cemetery in valuing the property in question, and

the trial judge's failure to permit the jury to do so constitutes reversible error. I would reverse and

remand for a new trial, and I must respectfully dissent.

SMITH, J., JOINS THIS OPINION.

1. As a result of the pre-trial publicity arising from the MDOT's discovery of grave sites in the

Goodman Road right-of-way in September, 1994, both parties sought a change of venue for the

proceedings. Although the Commission subsequently filed a motion to withdraw its motion for

change of venue, the Special Court overruled that motion and granted the change of venue to Tunica

County on July 10, 1995.

2. At trial, an offer of proof was made that the Commission's appraiser, Lucy Griffin, heard rumors of

graves or grave sites on the property in 1991 or 1992 and wrote a memo to the Jackson office.

3. Subsequently, on April 11, 1997, the Commission filed an Amended Statement of Values declaring

the fair market value of the property, as of September 8, 1993, to be $64,700. The price was

amended downward to compensate for the cost of moving the graves found in the Goodman Road
right-of-way.

4. The Commission contends that the case law interpreting Rule 104(b) is "nebulous and in need of

clarity." In as much as the issue was not before the lower court, our inquiry today is limited to the

propriety of the Special Court's granting of the motion in limine.

5. Miss. Code Ann. § 39-7-22 (1996), the Antiquities Law, provides for the survey of publiclyfunded construction sites for historically significant sites and landmarks.

6. Depositions of residents were taken in May, 1996, to supplement the Commission's response to the

landowners' motion in limine.

7. Miss. Code Ann. § 39-5-19 (1996) gives county boards of supervisors the authority to restore and

maintain abandoned cemeteries with any historic significance once a certificate is issued by the

Department of Archives and History.

8. The entire property is zoned C-4, planned commercial, which encompasses the whole gamut of

commercial uses from outdoor recreation to carry-out restaurants. This Court has noted that

"property must not be evaluated as though the rezoning were already an accomplished fact. It must

be evaluated under the restrictions of the existing zoning and consideration given to the impact

upon market value of the likelihood of a change in zoning." Mississippi State Highway Comm'n v.

Wagley, 231 So. 2d 507, 509(Miss. 1970)(emphasis in original)(quoting Nichols on Eminent

Domain, Market Value, § 12.322(1)(1962)). Harris' evaluation took into consideration commercial

land uses that were well within the parameters of the zoning designation.