121 So. 295 | Miss. | 1929
The appellant garage put in a drain pipe, or tile, on *688 said street next to it, and then cut down on the abutting lot an entrance putting the dirt over the tile drain and into the street in such manner as to raise the side of the street approximately to the level of the center of the street with proper sloping grades so as to make an entrance to the garage easy of access.
There was no order on the minutes of the municipality undertaking to give the garage the right to fill in the street, but no objection was made thereto and such condition remained for a number of years. Finally, the town of Poplarville decided to pave this street, and, in doing so, moved the dirt and gravel placed in the street by the garage to make the street practically level. The city also cut down the street at the center from three inches to ten or eleven inches, varying at different points, and the pavement was laid by the contractor, Boyd, on the original grade at the side of the street as made by Ball, but the center of the street was somewhat lowered, and, as stated above, the dirt and gravel fill, placed by the appellant in the street with the apparent acquiescence of the town, was removed as well as the drain pipe.
The appellant filed suit alleging that it was the owner of the land upon which the building was situated. In the proof it developed that the deed to the house and lot was in the name of J.B. White, individually, and not in the name of the corporation. But the equitable title seems to have been in the appellant, and it was actually using and occupying the garage in the conduct of its business.
The case was submitted to a jury, which found for the appellees.
The principal contention of the appellant is that it should have been granted a peremptory instruction on liability. This is based upon the proposition that the town of Poplarville had consented to appellant making an entrance into the street and to the garage, and that the town, after permitting the same, could not thereafter *689 remove it to the damage of the appellant without compensation in damages, under section 17 of the Constitution.
It is contended by the appellees that the peremptory instruction should not have been granted, and that it was rightfully refused, because the plaintiff had no title to the garage and to the lot upon which it was situated, and, consequently, that it had no standing to bring suit for damages as an abutting property owner; and, second, that the city had the right, at that time, to remove the dirt and gravel, as obstructions, from the street whenever it was deemed necessary or proper, as it had been put there under a temporary arrangement, and that the only way in which a city could change a grade so as to effect the public or property owners was by an order entered upon its minutes made in a proper and legal way.
It appears to us that under section 17 of the Constitution any person whose property is damaged in making improvements, or whose legal rights are invaded in doing so, is entitled to damages. InVicksburg v. Herman,
Different persons may have different interests in abutting property, and, where that is true, each of them is entitled to compensation for his injury. It is the purpose of the constitutional section to give each person having a right of property damages which have accrued to that interest or right of use of property by the improvement or taking, as provided by section 17 of the Constitution. See cases cited in Mississippi Constitutions, *690
pp. 99 to 105; Vicksburg v. Herman, supra; Robinson v.Vicksburg,
We therefore think that the appellant's case, as developed, did not present a case entitling him to recover damages, and that the proof shows that the grade was not *691 lowered beyond the grade established by Ball prior to the erection of the garage and the making of the entrance thereto.
We find no error warranting us in reversing the judgment of the court below, and it will therefore be affirmed.
Affirmed.