Humphreys County v. Washington County

90 So. 710 | Miss. | 1921

Smith, C. J.,

delivered the opinion of the court.

This is an action at law in which the appellee is the plaintiff and the appellant the defendant. The declaration alleges, in substance: That one Duggan has recovered from the appellant a judgment for damages sustained by him because of the construction of a public road through bis premises situated in territory formerly in Washington county, but now in Humphreys county and which was begun before, but completed after, the organization of Hum-phreys county. That on the organization of Humphreys county a contract was entered into between the counties of Washington and Humphreys, stipulating among other things, that:

“The county of Humphreys assumes all liabilities incident to the road project for the work done subsequent to its organization through that portion of Washington county which was included within the boundaries of Hum-phreys county, and said Washington county is authorized to alter the plans of Washington county highway district so as to eliminate from its project that portion of the Ar-cola-Belzoni' road which lies within the confines of Hum-phreys county; it being agreed and understood that neither Washington county nor the highway commission of Washington county is to construct the highway through Hum-phreys county originally in the plan of the highway commission of Washington county as approved by the board of supervisors of said county.”

That the damages recovered from the appellee by Dug-gan arose out of the construction of the road through his premises, and that liability therefor Avas assumed by the appellee under this contract. The execution of this contract was authorized by chapter 349, Laws of 1918, and after its execution it was ratified by chapter 581, Laws of 1920.

A demurrer interposed to this declaration was sustained, but on appeal to this court the judgment sustaining the demurrer Avas reversed, and the cause was remanded for a trial on the merits. Washington County v. Humphreys County, 89 So. 145. On the trial of the cause after its return to the court béloAV the appellant sought in various ways, but was not permitted by the court, to confine the appellee to a recovery for damages inflicted upon Duggan’s land by “work done subsequent to” the organization of Humphreys county. At the close of the evidence the appellant also requested and was refused an instruction directing the jury to return a verdict in its favor; the ground of the request being that it appears without conflict from the evidence that the damages sustained by Duggan resulted wholly from work done on the road prior to the organization of Humphreys county.

The court below committed no error in declining to so restrict the appellee’s recovery and in refusing the appellant’s request for a peremptory instruction, for on the former appeal herein Division B of this court held: First, that by this contract Humphreys county assumed liability for all damages growing out of the laying out and construction of this road within the territory included in Humphreys county; second, that Duggan could have sued either Washington or Humphreys county in the first instance, and that, having recovered from Washington county, it could recover in a suit against Humphreys county; and, third, that the measure of Duggan’s and consequently of Washington county’s, damages is the difference in the value of the land immediately before the taking and its value immediately after the taking, plus the value of the strip actually taken, plus loss of crops by reason of the taking and work during the year of the construction.

The appellee has filed several cross-assignments of error, the only one of which is seriously pressed is that setting forth the overruling by the court below of the following motion made by it after the rendition of the verdict and before judgment was rendered thereon:

“Now comes the plaintiff herein by its attorney and moves the court that the verdict herein which was for the plaintiff in the sum of three thousand five hundred dollars carry with it six per cent, interest per annum from June 1, 1918, the same being the date of the conversion of the land herein, and that said interest be added to such verdict as the amount of the judgment herein.”

Interest on the amount of damages assessed in actions for injuries to or destruction of property is not provided for by section 2678, Code of 1906; Hemingway’s Code, section 2075 et seq., but, conceding for tbe sake of the argument that interest on such damages is recoverable although not provided for by the statute (Railroad Co. v. Haynes, 64 Miss. 604, 1 So. 765 ; 16 A. & E. Ency. of Law [2d Ed.] p. 1027), no instruction directing the jury to include such interest in the damages awarded it was requested by the appellee; consequently it cannot complain at the jury’s failure so to do. Moreover, the verdict here in question is for a fixed sum in an action for unliquidated damages, and, for aught that appears to the contrary, the jury may have included interest therein.

Affirmed.