City of Jackson v. Welch, 101 So. 361

City of Jackson v. Welch

101 So. 361 | Miss. | 1924

Holden, J.,

delivered the opinion of the court.

This is a chancery suit involving the question of closing what is termed “Short street,” a strip of land claimed by the complainants to be a street running north- and south between Capitol street and Pearl street, immediately west of the Illinois Central right of way in Jackson, Miss.

The precise point involved is whether or not the complainants, who were the Morrisons in the original bill, are such abutting owners on this alleged Short street as would give them the right to prevent its abandonment and closing by its different owners, Welch and others, *234appellees. The original complainants, the Morrisons, own the property abutting on the south side of Pearl street, opposite the. point where the said Short street intersects Pearl street and ends, and, by virtue of ownership of this abutting property on Pearl street, the Morrisons contend that they are thus abutting owners on Short street, and have the right to prohibit the closing of Short street. t

The city of Jackson, being made a defendant in the original bill, answered and confessed the right of the Morrisons to prevent the dosing of the street, and also filed a cross-bill against Welch and the other owners of the land comprising Short street, praying that this street be left open for the public use. The appellees, Welch and others, pleaded to the cross-complainants ’ bill,- and set up the fact that the question of the ownership of the land comprising Short street had been adjudicated, and the title decreed in Welch and others in a former suit brought against the city of Jackson by Welch and others, in which the court decreed there was no such public street as Short street, and that the title to the land comprising Short street was clearly in Welch and others; and upon this plea of res judicata, and the suggestion of stare decisis, the lower court in the present case dismissed the cross-complainants’ bill; whereupon the city of Jackson appeals now, which accounts for this case being styled City of Jackson v. Welch et al.

In the case before us Welch and others demurred to the original complaint of the Morrisons, which demurrer was sustained by the chancellor, and it seems the whole case is now on appeal before us.

The demurrer of the appellees Welch and others presented several grounds for dismissal of the bill, but we shall discuss only one, because we assume the chancellor sustained the demurrer upon this ground namely, that the Morrisons are not such abutting owners, if they are in fact abutting owners, on Short street, as would legally *235entitle them to prohibit the closing of Short street as against the appellees who own in fee simple the land comprising the alleged street. So, then, the main question presented for decision is whether or not the Morrisons are abutting owners on Short street, and have such a. special interest in the use of that street as would warrant them in asking the courts to interfere with its closing.

It is our opinion the Morrisons have no legal right to complain against the closing of this so-called Short street. Their property lying on the south side of Pearl street abuts on Pearl street, from and by which street they have adequate access to their property, which access is not destroyed by the closing* of Short street, lying wholly north of Pearl street. We shall concede for the purposes of discussion, though not deciding that the property of the Morrisons abutting on the south side of Pearl street is1 property also abutting on Short street, since it is at the point on the south side of Pearl street where Short street enters Pearl street from the north, yet the abutting ownership is not such as gives the owners the right to complain about the closing of Short street, because the Morrisons own no property abutting on the closed portion of Short street. That portion of Short street extending across Pearl street southwardly to and abruptly against the Morrison property (if, indeed, it can be said that Short street does extend across Pearl street) is not closed, but remains open giving* full access, ingress, and egress to the Morrison property on Pearl street.

And, further, the Morrisons are not such abutting owners on Short street as gives them a special user for access purposes to their property as would specially damage them if it is closed up, but the injury tliey would suffer on account of closing* the street is such damage as would be shared in by all of the public, which is a general interest or common easement, the deprivation of which *236would be suffered by the general public along with the Morrisons, and therefore the Morrisons cannot, as one of the general public, complain against the closing of the street.

In order for a landowner to have a just complaint against the abandonment or closing of an abutting street, he must have'a special easement in the use of the street in connection with his property for access purposes; that is, he must be specially damaged in connection with an outlet and inlet to his property, otherwise he has no more interest in the street than that enjoyed by the general public for travel, and cannot prevent its closing by the owners or the public authorities. Poythress v. Railroad Go., 92 Miss. 638, 46 So. 139.; 29 C. J. p. 547.

The underlying principle, as we understand it, which gives the abutting owner the right to keep' the street open, is based upon the theory that he has a special easement or right of user in the street, other than that enjoyed as one of the general public, in connection with access to his property; and that when you close the street and prevent egress and ingress to and from his property you specially damage him; and this can be done only by public authorities upon due compensation being paid to cover the special damages suffered by depreciation of the value of his property. Morris v. Covington County, 118 Miss. 875, 80 So. 337; City of Laurel v. Row-ell, 84 Miss. 435, 36 So. '543; Clinton v. Turner, 95' Miss. 594, 52 So. 261; 13 R. C. L., section 125; 29 C. J., section 263, p. 547.

As we have pointed out above, the Morrisons have no special interest in the use of Short street for access purposes to their property, because they border on Pearl street, a prominent thoroug’hfare now open, and which was in existence before the alleged Short street was known. Therefore the closing of the street does not deprive them of reasonable and adequate access to their property, and, as said in the Poythress Case, 92 Miss. 638, 46 So. 139:

*237“Poythress [Morrison] is not an abutting landowner upon this street, entitling him to have compensation first made to him before the closing of the street, ' . . .

as he owns no property abutting the closed portion.” Hence we respectfully repeat that, if the Morrisons are in fact abutting owners on Short street, still they have no complaint on account of its closing because they do not abut on that portion of the street which was closed.

Now as to the cross-bill filed by the city of Jackson, we think it very clear that the bill is nothing more than an effort to reopen and relitigate the question of the ownership of the land comprising Short street, which was decided in favor of Welch and others, appellees, • in 1922, appealed to this court, and affirmed. The questions presented by the cross-complainant, the city of Jackson, are res judicata, and the chancellor was correct in so holding. See City of Jackson v. C. Welch (Miss.), 91 So. 403.

We therefore conclude that, since the Morrisons had no such interest as an abutting owner on Short street as would give them the right to maintain this suit, and the city of Jackson having already been concluded by the former litigation, we think the decree of the lower court should be affirmed:

Affirmed.