84 Miss. 435 | Miss. | 1904
delivered the opinion of the court.
When people build on the side of, and with reference to, a public street, they acquire an easement in its free user by them and the public and in the resultant value of such user. This is property, and cannot he taken from them or damaged by closing the street, except upon compensation first paid. The closing of the street is a taking of the easement for the public use in the purview of our constitution. If this be not true, three out of five of a municipal board, as in this case, may work ruin at will on property holders. Moreover, we think this record shows that the closing of Post street was in order to put appellant corporation in possession of it, and this is ultra vires and intolerable. Smith v. McDowell, 148 Ill., 51 (35 N. E., 141; 22 L. R. A., 393; 1 Am. & Eng. Ency. Law, 225-226); Moose v. Carson, 7 L. R. A., 548, and notes; Elliott, Roads and Streets, sec. 877; 2 Smith, Mun. Corp., sec. 1215. Three out of five of a municipal board cannot, nor can the whole hoard, do what, very clearly, the Legislature itself, the only fountain of its authority, is powerless to do. The tendency of these hoards throughout the country is to usurp pow
The chancellor was right in refusing to dissolve the injunction. This being on appeal to settle the principles of the case, we affirm at appellants’ costs in this court, and remand for further proceedings.