                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 94-CA-00525-SCT
PRISCILLA OUGHTON
v.
MICHAEL S. GADDIS, THOMAS B. GADDIS, RICHARD SCOTT GADDIS AND EDWIN M.
GADDIS

DATE OF JUDGMENT:                               05/19/94
TRIAL JUDGE:                                    HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED:                      LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         STANLEY T. INGRAM
ATTORNEYS FOR APPELLEES:                        JOE CLAY HAMILTON
                                                DEANNE M. MOSLEY
NATURE OF THE CASE:                             CIVIL - EMINENT DOMAIN
DISPOSITION:                                    REVERSED AND REMANDED - 11/7/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 12/2/96




     BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.


     SMITH, JUSTICE, FOR THE COURT:


¶1. Michael S. Gaddis, Thomas B. Gaddis, Richard S. Gaddis, and Edwin M. Gaddis, [hereinafter
Gaddis brothers], owned a parcel of landlocked property fronting the Chunky River in Lauderdale
County. The Gaddis brothers were granted an easement by the county board of supervisors for
ingress/egress over land owned by Priscilla Oughton, [hereinafter Oughton].

¶2. Oughton sought relief from the supervisor's decision from the Circuit Court of Lauderdale
County. The lower court awarded damages to Oughton by computing the amount of land taken by
the dollar value of the best current use of the entire tract. Oughton argues that the lower court was
incorrect in its computation. Oughton claims that the lower court improperly utilized a general per
acre value based upon a best use as agricultural for the entire tract of land, whereas the value of the
portion of land actually "taken" was much higher than the remainder of the property, because the
"taken"property was riverfront property which had a highest and best use as recreational property.

¶3. Oughton also contends that her expert witness should have been allowed to testify as to the value
of the taken property relative to the other potential uses of the land. Finally, she contends that the
lower court should have awarded damages to cover her cost of erecting a fence on either side of the
easement.

¶4. The Gaddis brothers rebut by arguing that the proper evidentiary predicate was not laid to allow
testimony concerning the land's value if it was developed, and that Oughton failed to show that a
fence was necessary.

¶5. We conclude that the trial court erred is disallowing Oughton's expert testimony and that the
lower court's computation of value, utilizing only a general per acreage value of the entire tract of
land based upon only a single use was incorrect. Property may have several uses as was clearly
indicated by the excluded testimony of Cook, Oughton's expert witness.

¶6. The lower court also erred in holding that there was no showing by Oughton that a fence, located
on either side of the easement was necessary. The lower court failed to factor into consideration the
fact that the vast majority of Oughton's property is best suited for agriculture, that cattle were
pastured thereon until 1991, and that cattle could be pastured on the property again. Nor was
consideration given to the fact that once the easement was constructed a fence was necessary to keep
people out of Oughton's property. We therefore must reverse on both issues.

                                                ISSUES


     I. WHETHER THE LOWER COURT ERRED IN EXCLUDING THE LANDOWNER'S
     EVIDENCE REGARDING THE DIFFERENT PER ACREAGE VALUES OF
     DIFFERENT PARTS OF THE SUBJECT PROPERTY?

     II. WHETHER THE LOWER COURT ERRED IN REFUSING TO AWARD THE
     LANDOWNER THE COSTS OF BUILDING A FENCE ON BOTH SIDES OF THE
     EASEMENT?

                                     STATEMENT OF FACTS

¶7. In April 1991, the Gaddis brothers bought a piece of land which borders the Chunky River in
Lauderdale County, Mississippi. The Gaddis property is shaped like a triangle and consists of 18
acres. On two sides of the Gaddis property is land owned by Priscilla Oughton. The third side is the
Chunky River. In other words, the Gaddis property is legally and factually landlocked, and unless a
bridge is constructed over the Chunky River, the Gaddis brothers have no access to their property.

¶8. The Gaddis brothers paid $15,000 for their property. The intended use of that property was
recreational: hunting, fishing and camping. They eventually erected a small camp site and cleared an
area to place a boat in the River. The remainder of the Gaddis property is used for timber. The
Oughton property, likewise, has been used for various uses: farming, timberland, camping, and
recreation.

¶9. The Gaddis brothers eventually petitioned the county board of supervisors to grant an easement
on the Oughton property to allow them ingress/egress onto their property. The record indicates that
Oughton may not have received proper notice to come to the hearing on this matter. However, in the
case before us, the lack of notice issue is not pressed by either party. At the hearing, the county board
of supervisors granted the easement. When Oughton learned of the decision, she petitioned the lower
court for relief.

¶10. A bench trial was held on May 12, 1994. In the lower court, both sides brought expert witnesses
on the value of the land. Alex Smith, a real estate appraiser, testified for the Gaddis brothers that the
highest and best use of the Oughton property was for agriculture and timber production. Smith
arrived at the figure of $450 per acre for the Oughton property by comparing the other agricultural
and timberland properties in that area. Under Smith's analysis, the Oughton property contained 518
acres, which at $450 per acre, resulted in a total value of $233,100. Thus, since the easement was 1.2
acres total, he multiplied $450 against 1.2 acres, and subtracted this amount from the original total
value. However, on cross-examination, Smith admitted that the Gaddis Brothers had paid an average
of $800 an acre, which somehow, he felt was not comparable to the situation at hand.

¶11. Oughton offered proof from Edsel Cook, a real estate appraiser who testified that although
Oughton's land was best used for agricultural and timber purposes, part of the land bordering the
River, had a higher value and was best used for recreation. The Gaddis brothers' attorney objected to
this testimony, and the judge sustained the objection stating that "[t]here can only be one highest and
best use of the entire tract." Later, when considering the issue of the fence costs, the judge again
reiterated this sentiment:

      My understanding of the law that exists in this state is that only one highest and best use can be
      established for a particular parcel of property. It cannot be subdivided or split up and different
      parcels of the property assigned different highest and best uses. The whole parcel must be
      established to have one highest and best use.

¶12. Cook had attempted to testify that the Oughton riverfront property had a market value of $2,
000 per acre, a figure arrived at by looking at the comparable sale of the Gaddis property, which was
similar in size and location to the riverfront property. Cook stated that the riverfront property of
Oughton's lot, containing 11.8 acres, would be damaged by the establishment of an easement because
the proposed easement would run too close to the River and would cut down the size of any riverside
lots that Oughton could sell for use as camping, fishing, or hunting grounds. Therefore, since the
riverfront property with the proposed easement would no longer be suitable for recreational use, the
land would only be suitable for timberland or agricultural use, with a value of $450 per acre. Thus,
Cook calculated the damages to the property after the establishment of the easement at $1,550 an
acre (which is the same as $2,000 minus $450), or approximately, $18,000 in total. Cook concurred
with Smith in that the other parts of the Oughton property, not bordering the Chunky River, had a
highest and best use for agriculture or timberland, and also valued these acres at $450 per acre. Since
the lower court would not allow Cook to testify as to the highest use for the riverfront property apart
from the rest of the property, Cook's testimony was reduced to a parroting of Smith's assessment.

¶13. In regards to the fence, Bobby Shelton, caretaker of the Oughton land, testified that a fence was
necessary to keep people from going onto the land. The lower court found that as the highest and
best use was agricultural and timber production, and since the land did not hold any cows at the
present moment, a fence was not a necessity. The cost of the fence was $5,600 and the lower court
refused to award the cost as damages to Oughton.

                                       DISCUSSION OF LAW
     I. WHETHER THE LOWER COURT ERRED IN EXCLUDING THE LANDOWNER'S
     EVIDENCE REGARDING THE DIFFERENT PER ACREAGE VALUES OF
     DIFFERENT PARTS OF THE SUBJECT PROPERTY?

¶14. Even though the State may be acting in a way so as to benefit only one landlocked property
owner by granting him a private right of way, the State is still exercising its power of eminent domain
in such matters. Quinn v. Holley, 244 Miss. 808, 146 So. 2d 357 (1962). When the State exercises
its power of eminent domain, the damage award that the beneficiary must pay to duly compensate the
victim of the taking includes the fair market value of the land actually taken for the private easement,
and also all damages to the remaining land not included in the taking. Broadhead v. Terpening, 611
So. 2d 949, 955 (Miss. 1992); Trustees of Wade Baptist Church v. Mississippi State Highway
Comm'n, 469 So. 2d 1241 (Miss. 1985) (condemnor is under a heavy and nondelegable duty and
responsibility to pay landowner full fair market value of taken property). Thus, the general formula
reflecting this principle is to calculate the difference between the fair market value of the entire tract
before the taking, and the fair market value of the entire property immediately after the taking.
Potters II v. State Highway Comm'n of Mississippi, 608 So. 2d 1227 (Miss. 1992); Mississippi
State Highway Comm'n v. Hillman, 189 Miss. 850, 198 So. 565 (1940) (calling the subtraction
formula the "before-after" rule). The rationale behind this rule is to account for the damage to the
property remaining after the taking, as well as the value of the land included in the taking. Mississippi
State Highway Comm'n v. Franklin County Timber Co., 488 So. 2d 782 (Miss. 1986).

     When any person shall desire to have a private road laid out through the land of another, when
     necessary for ingress and egress, he shall apply by petition, stating the facts and reasons, to the
     board of supervisors of the county, which shall, the owner of the land being notified at least five
     days before, determine the reasonableness of the application. If the petition be granted, the same
     proceedings shall be had thereon as in the case of a public road; but the damages assessed shall
     be paid by the person applying for the private road, and he shall pay all the costs and expenses
     incurred in the proceedings.

Miss. Code Ann. § 65-7-201 (1972). The value of land condemned is the fair market value others
would pay for the entire land without the easement or right-of-way outlets across other lands. Pearl
River Valley Water Supply Dist. v. Brown, 254 Miss 685, 182 So. 2d 384 (1966). In order 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." Hillman, 189 Miss. at 850, 870, 198 So. at 571. The lower court is not limited to just the
property's highest and best use for the moment, but may consider the value of the property with
reference to any use for which the property is reasonably adaptable. Potters II, 608 So. 2d at 1227
(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); Mississippi State Highway
Comm'n v. Hancock, 309 So. 2d 867 (Miss. 1975) (part of condemned land had residential purposes
as highest and best use, and other part as farmland, with differing values depending on the purpose);
State Highway Comm'n v. Brown, 176 Miss. 23, 33, 168 So. 277, 299 (1936) (property may have
several available uses and purposes, and consideration must be given to the fair market value of each
use and purpose).

¶15. Closest on point to the case at bar are Mississippi State Highway Comm'n v. Brooks, 239
Miss. 308, 123 So. 2d 423 (1960), and Mississippi State Highway Comm'n v. Hancock, 309 So. 2d
867 (Miss. 1975). In Brooks, the land involved in the eminent domain proceeding had previously
been used for farming and cattle raising. However, several adjacent properties surrounding the
Brooks tract had recently been developed for residential uses. Thus, the landowner's expert witness
was allowed to testify that the property had as a highest and best use residential development. This
Court affirmed the lower court's damages award to the landowner as it was deemed that the land was
adaptable to residential purposes. Brooks, 123 So. 2d at 317, 427. In Hancock, the expert made a
proffer that the value of the land fluctuated as the use and purpose changed, and that when the best
use for the condemned land was rural residential, the price was a higher cost per acreage than when
the best use was agriculture. Hancock, 309 So. 2d at 869. There, the State contended that there
could be only one highest and best use of the property, that being farming since widening the
highway would still have left the same amount of land bordering the highway to use as rural
residential property. This Court rejected that argument and approved of the property owner's expert's
testimony that the subject property was adaptable to two uses. Id. at 870.

¶16. Recently, this Court made a similar pronouncement in Dennis v. City Council of Greenville,
646 So. 2d 1290 (Miss. 1994). There, this Court found the lower court erroneously excluded
landowners' evidence relating to comparable sales of property supporting appraised value based upon
the use of the property in the manner for which it had been zoned while admitting the city's evidence
of appraisal based on the use of the property in a manner inconsistent with its present zoning. In
reflecting upon the lower court's error, we noted that "[i]n seeking value, we assume that our
rational, wealth-maximizing buyer and seller will inform themselves of various uses of the property
and will trade by reference to the most profitable use." Dennis 646 So. 2d 1293, (citing Potters II,
608 So. 2d at 1232-33). In other words, the majority recognized that a property can have "various
uses."

¶17. Here, the lower court held that the Oughton property could be used for one purpose only--
either agriculture or recreational, and that the uses could not be subdivided. The judge cited no
authority for this proposition, nor do the Gaddis brothers in their brief. Mississippi law on this issue is
at best scarce. If anything, the law seems to imply that whatever purposes to which the land is
adaptable are admissible as its highest and best uses. See Brooks, Brown; Daniels; Potters II;
Hancock; Dennis. There is no longer a basis for the lower court's conclusion that a piece of property
may be suitable for two purposes- agriculture and timber, but not three - agriculture, timber and
recreation. Here, the record indicates that the Gaddis brothers were certainly using their property for
recreational purposes. Because the record also indicates that the Oughton property was not much
different than the Gaddis property, it is clear that certain portions of the condemned property were
clearly adaptable to recreational uses, as well. Moreover, the very fact that the Gaddis brothers paid
over $800 an acre for comparable land clearly indicates that the value of their land is different in
different areas. Because all parties agreed that the properties which were used for agriculture are not
worth more than $450 an acre, it would stand to reason that the Gaddis brothers' average acreage
price for their property was almost twice this average, in order to incorporate the costs of the
riverfront property also contained in their plot.

     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, 614 N.E.2d 485, 488 (Ill. App. Ct. 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).

¶18. This Court holds that the lower court was in error for excluding Cook's testimony that the
Oughton land where the easement was being laid, was in a more valuable region than the agricultural
land which was the dominant part of the property. In the lower court, the Gaddis brothers' attorney
objected to Cook's evaluation on the basis that proper foundation was not laid for Cook's estimate
that the riverfront property was valued at $2,000. Cook responded that he arrived at this figure by
determining the amount paid for the property by the Gaddis brothers. This amount averaged over
$800 an acre, thus, indicating the combination of a higher priced riverfront tract coupled with a lower
priced agriculture tract. At that point, the lower court judge did not state whether this foundation
was improper or insufficient. Rather, he merely went on to state that he did not think the law would
allow for more than one highest and best use for the property. In fact, we hold the foundation laid
was sufficient.

¶19. Having found that a proper foundation was laid for introducing such a figure for the riverfront
property, Cook's excluded testimony should have been allowed. We further hold that the lower
court's interpretation of the law was incorrect. See Pearl River Valley Water Supply Dist. v. Brown,
254 Miss. 685,182 So. 2d 384 (1966) (evidence admissible when highest and best use is not
speculative). It is completely plausible that a piece of property, especially one as large as the Oughton
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. Thus, based on both Mississippi case law, as well as the
case law of other jurisdictions touching upon this issue, we find the lower court to be in error. Cook's
testimony valuing the riverfront property at $2,000 per acre was proper and accurate, especially
considering the fact that the Gaddis brothers practically identical adjacent property, also used for
hunting, camping and recreation, had been purchased at a similar price per acre. The similarities and
use of the riverfront properties by the Gaddis brothers and Oughton makes Cook's excluded
testimony not only relevant and admissible, but also accurate and very compelling. Oughton's claims
are of merit, thus reversal is required.

     II. WHETHER THE LOWER COURT ERRED IN REFUSING TO AWARD THE
     LANDOWNER THE COSTS OF BUILDING A FENCE ON BOTH SIDES OF THE
     EASEMENT?

¶20. Oughton ceased using her property for raising cattle in 1991. Thus, the lower court, while
admitting that the only possible highest or best use for the property was agriculture or timberland,
denied the costs of a fence because no cattle were present on the Oughton property.

¶21. "The cost of fencing . . . should be taken into consideration in awarding compensation, but only
where such fencing . . . is necessary." 29A C.J.S. Eminent Domain § 152(b) (1992). In Sullivan v.
Board of Supervisors of Lafayette County, 58 Miss. 790 (Miss. 1881), this Court affirmed the lower
court's decision to require the State to pay for a fence to be erected on both sides of an easement.
The costs of building a fence is a factor to be considered in determining the market value of the land.
Hillman, 189 Miss. at 871, 198 So. at 571 (1940). If keeping cattle within properties is the concern
behind the fence, the necessity of building a fence cannot be "too remote." Schlit v. Clark, 114 Miss.
354, 362-63, 75 So. 130, 131 (1917).

¶22. On its face, the circuit court's decision might appear to be correct, as the fence is not a current
necessity to keep in cattle. However, considering the testimony that the Oughton property has been
used for raising cattle in the near past, and the lower court itself acknowledged that agriculture would
be a highest and best use, it is not "too remote" that the land will once again be used for cattle
raising. Once the roadway easement is constructed, if Oughton decided to graze cattle on her
property again, a fence to keep cattle out of the roadway would clearly constitute a necessity as
Oughton would no longer be able to rely upon the river to deter cattle much like a fence. The lower
court on remand should consider this factor.

¶23. Additionally, there appears to be another factor which must be considered by the trial court. The
testimony of Bobby Shelton indicated that after the easement is established there will not be sufficient
remaining land for Oughton to develop riverfront lots for use as hunting, camping, or recreation.
Oughton's proof also showed the need to keep people out of her property along the newly
constructed easement. Considering this Court's opinion in Sullivan where the State was required to
pay for the erection of a fence on both sides of the highway scheduled to be constructed, the need for
a fence in the case sub judice is not speculative, and in fact, seems to be a necessity. Thus, as the
lower court did not even "factor" in the necessity for a fence, apparently ignoring this proof, this
issue is also remanded for a new trial.

                                           CONCLUSION

¶24. The lower court erred on the issue of the land use and in excluding Cook's testimony. Real
property can have more than one highest and best use, as was clearly the case here. Because land
itself is not always uniform, so can its uses may vary depending upon differences within the property.
In order to effect, full compensation, all of the highest and best uses of a property must be taken into
account when calculating damages. The lower court erred in failing to consider the proof of the
necessity of the fence both for keeping cattle in and people out. The necessity of a fence must be
taken into account as a factor in calculating damages, thus, this issue is remanded to the trial court.
This case is reversed and remanded to the lower court for further proceedings consistent with this
opinion.

¶25. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS
AND MILLS, JJ., CONCUR.
