Jackson v. Monroe County, 81 So. 787

Jackson v. Monroe County

81 So. 787 | Miss. | 1919

EthRidge,, J.,

delivered the opinion of the court.

The appellant brought suit against the county in the circuit court for damages for changing a public road touching his land in Monroe county so as to throw thé road away from his land and leaving no ingress and egress to his place, in which he alleged that the change of the public road was made without notice to him and that his property was taken for public use without compensation and that he was damaged to the extent of three thousand dollars. The declaration failed to allege that the plaintiff had filed his claim for damages with the board of supervisors and that it had been disallowed prior to the institution of the suit. The declaration was demurred to on several grounds, the first of which is that the declaration fails to show the cause of action. Other grounds of demurrer were that plaintiff had no vested right to a continuance of the public road in front of his residence; nor that the public shall maintain and keep up said road simply for hi's advantage; and that the public interest required that said road be relocated; also that the declaration failed to ‘show that plaintiff did not have a passageway along the old road where the public road was formerly located and that he had a right of condemnation to get across other property to the public road-; that the authority . extended by the county to the railroad company to abolish the railroad crossing where the former public road ran in no manner interfered with, or took away, the right of the plaintiff to have said crossing continued as a private way to get to the public road.

All the grounds of demurrer, except the first one, related to the plaintiff’s right of action against the county for changing the public road. The demurrer was sustained by the trial court and plaintiff declined to plead further. Judgment final was entered against *131the plaintiff. The case was tried below prior to the decision of this court in Morris v. Covington County, 80 So. 337. This case established the plaintiff’s right to damages in case of discontinuance of a public road, as to an abutting property owner, and would control all of the grounds of demurrer other than the- first. The first ground of demurrer, however, is well taken, because section 311, Code of 1906, section 3684, Hemingway’s Code, requires a person having a claim against a county to first present it to the board of supervisors for allowance before any suit may be brought. This statute has been construed by this court to apply to all kinds of claims whether orginating in contract or in tort. Davis v. Lamar County, 107 Miss. 343, 27 So. 619; Polk v. Tunica County, 52 Miss. 422; Kline v. Warren County, 51 Miss. 878; Taylor v. Marion County, 51 Miss. 731; Lawrence County v. Brookhaven, 51 Miss. 68.

It is insisted by the appellant that the case of Copiah County v. Lusk, 77 Miss. 136, 24 So. 972, controls the case at bar, and that this case is authority for the bringing of a suit of this kind without first presenting the claim to the board of supervisors. In this case the decision turned upon the sections' of the Code prescribing methods for obtaining damages for laying out, altering, or changing a public road according to section 3892, Code of 1892, being in the present Code as section 4400, and section 3894, Code of 1892, section 4402, Code of 1906, and would not involve section 311 of the present Code, or section ¿¡92, Code of 1892, requiring the claim against the county to be first presented to the board oí supervisors. We have examined the original record in the case of Copiah County v. Lusk, supra, and found that the record in this case affirmatively shows that the claim against the county was presented to the board of supervisors in Jánuary, 1897, and was disallowed by *132the board. This case, therefore, is not in conflict with Davis v. Lamar County, 107 Miss. 827, 66 So. 210, and other cases holding in accordance with that decision. It was necessary, therefore, for the plaintiff to first present his claim to the board of supervisors for ah lowance before bringing any suit against the county, and, as he failed to do so, he could not recover in the present suit. The judgment of the court will therefore be affirmed without prejudice to the right of the plaintiff to now present his claim to the board of supervisors for allowance and to sue in case of a refusal.

Affirmed.