Volume 238 — Mississippi Reports

<bold>1. Eminent domain — damages — loss of shade trees.</bold> Landowners were entitled to damages for the loss of shade trees in front of their residence, as the result of taking of a strip of land for highway purposes. <bold>2. Eminent domain — damages — to water well.</bold> Landowners could not recover damages for injury to their well based on fact that their neighbors were deprived of use of drinking water from well due to a lowering of the level thereof following certain highway grading work. <bold>3. Eminent domain — damages — award of $4,200 grossly</bold> <bold>excessive.</bold> In action by State Highway Commission to condemn a strip of land for highway purposes, evidence was insufficient to sustain award of $4,200 damages for taking of strip of land in question, destruction of two shade trees, and damage, if any, to landowner's well. Headnotes as approved by McGehee, C.J.

<bold>1. Board of Supervisors — authority to change boundary line</bold> <bold>between supervisors' districts — order regular and valid on</bold> <bold>its face not subject to collateral attack.</bold> As board of supervisors had statutory authority to make order, by unanimous vote, changing boundary line between supervisors' districts, its order so doing which was valid on its face, where minutes disclosed that order had been signed by all members of board, was not subject to collateral attack, and Chancery Court erred when it, on complaint of electors alleging that one supervisor had actually not been present when order was voted, enjoined action in changing boundary lines and when it subsequently overruled demurrers to amended bill of complaint filed on relation of district attorney, seeking to set aside the order. Headnote as approved by McGehee, C.J.

<bold>1. Equity — mortgages — Chancellor's findings — cancellation on</bold> <bold>record of deed of trust and vendor's lien allegedly obtained</bold> <bold>through fraud and undue influence, and falsely stating debt</bold> <bold>had been paid, set aside on conflicting evidence.</bold> In suit in equity to vacate cancellation on records by complainant of deed of trust and a vendor's lien which complainant held on a tract of land on ground that defendants obtained cancellation through fraud and undue influence when a substantial sum remained unpaid, wherein trial court was presented with opposing views as to whether defendants' debt to complainant had been paid, and whether complainant had been subjected to undue influence and fraud exerted upon her by defendants to obtain the cancellation, conflicting issues of fact were for trial court to decide. <bold>2. Payment — nonpayment — burden of proof.</bold> Where complainant sought to cancel release of debt on ground that cancellation had been obtained through fraud and undue influence by defendants who falsely stated that debt had been paid, fact of nonpayment was an element of complainant's cause of action, and burden of proving nonpayment, denied by defendants, rested on complainant. Headnotes as approved by Ethridge, J.

<bold>1. Evidence — oral testimony not competent to prove terms and</bold> <bold>provisions of owner's automobile liability policy.</bold> In action by passenger in automobile against owner for injuries sustained in automobile accident, oral testimony was not competent to prove terms and provisions of owner's automobile liability policy. <bold>2. Evidence — court erred in denying passenger's motion for</bold> <bold>subpoena duces tecum to require owner to produce policy for</bold> <bold>inspection and for introduction in evidence.</bold> Where passenger in automobile brought action against owner for injuries sustained in automobile accident, and owner pleaded in bar of the suit a release, which was signed by passenger, and for which passenger had received $500 from insurance company, and passenger sought to avoid the release, on ground that there was no consideration for the release, because insurance<page_number>Page 644</page_number> company was allegedly obligated by automobile liability policy to pay medical expenses of $500 without regard to whether there was any negligence, Circuit Court erred in denying passenger's motion for subpoena duces tecum to require owner to produce policy for inspection and for introduction in evidence. Headnotes as approved by McGehee, C.J.

<bold>1. Eminent domain — award of $12,000 not excessive.</bold> In proceeding to condemn land for limited access highway, judgment awarding $12,000 to owners whose original tract was five or six acres and who would have left only about one and one-half acres containing their home was affirmed by equally divided Court. Headnote as approved by Hall, J.

<bold>1. Damages — motor vehicles — collision — evidence sufficient to</bold> <bold>sustain verdict that plaintiff suffered no injury in</bold> <bold>collision.</bold> In action by taxicab driver for damages for alleged whiplash injury to neck arising out of collision of taxicab with defendant's truck, evidence was sufficient to sustain verdict that plaintiff suffered no injury in collision. <bold>2. Motor vehicles — collision — negligence — peremptory</bold> <bold>instruction — where there was evidence which would sustain</bold> <bold>jury finding that plaintiff suffered no injury in collision,</bold> <bold>plaintiff's peremptory was properly refused.</bold> Where collision between two vehicles was caused by negligence of defendant's employee, but there was evidence which would sustain a finding by jury that plaintiff was not injured in collision, plaintiff's request that jury be peremptorily instructed to find for him was properly refused. Headnotes as approved by Lee, J.