80 So. 337 | Miss. | 1918
delivered the opinion of the court.
This is an appeal from a judgment of the circuit court of Covington county, sustaining a demurrer to appellant’s declaration. The question presented for our decision is whether the declaration states a cause of action under the law. The declaration alleges that the board of supervisors of Covington county adopted an order vacating and abandoning a certain public highway leading from the town of Seminary across Okatoma creek to and through the farm of appellant; that appellant contributed to the establishment and maintenance of the highway, which was established and maintained by the county; that the abandonment of said public highway leaves appellant without a way of ingress to and engress from said farm, depriving him of access thereto; that appellant is an abutting landowner on said public highway, and on account of the
The suit is based upon the ground that the vacation and abandonment by the county of the public road abutting on the farm land of appellant is a taking or damaging of »his private property for public use for which due compensation should be made under section 17 of our Constitution.
The defendant below, Covington county, demurred to the declaration on the ground that the county had a lawful right to abandon its public road, and that such abandonment was not the taking or damaging of private property for public use, as there was no taking or damaging of private property within the meaning of the Constitution.
The precise question has never been passed upon by this court. However, the principle involved seems to have been settled by this court. In City of Laurel v. Lowell, 84 Miss. 435, 36 So. 543, it is held that the abandonment or closing of an established street is a taking or damaging of private property for public use within the Constitution, and authorizing compensa
When a public highway is established, the abutting owner acquires a special easement therein in connection with his land for purposes or access to his premises, and this special easement is distinct, and is in addition to the right of user of the road, possessed by him as one of the general public for travel. “The right to a road or street which the landowner possesses as one of the public is different from that which vests in him as an adjoining proprietor, and, it is also distinct and different from his rights as owner of the servient estate. The' right which an abutter enjoys as one of the public and in common with other citizens is not property in such a sense as to entitle him to compensation on the discontinuance of the road or street; but with respect to the right which he has in the highway as • a means of enjoying the free and convient use of his abutting property it -is radically different, for .this right Is a specal one. If this special right is of value — and it is of value if it increases the worth of his abutting premises— then it is property, no matter whether it be of great or small value. Its value may furnish the standard for measuring the compensation, but it cannot change the nature of the right itself. For this reason, we think that the discontinuance or vacation of a street in such a
We think it is a just rule that the abutting landowner on a public highway in the country has a special property right in the easement and free user of the public road for access purposes, and that when he is deprived of this property right by an abandonment of the highway by the county authorities he is entitled to special damages on account of such abandonment, on the same principle that a lot owner in a city is entitled to damages for the abandonment and closing of a street abutting on his property, as in both instances it is the taking or damaging of private property, a special right of easement and user in the road or street, for public use, for which compensation must be made. The particular value of the use and easement in the abutting highway is obvious, especially for purposes of egress, ingress, and access, and when the landowner is deprived of this incidental benefit and advantage by the county, his property is depreciated in value on account thereof, and his private property right has been taken for public use, in that the act of the public authorities in abandoning a road is in the public interest, and presumably for the public advantage, and in that way the abandonment of the road is “the taking or damaging of private property” of the abutting owner “for public use.”
In McCann v. Clarke County, 149 Iowa, 13, 15, 127 N. W. 1011, 1012 (36 L. R. A. [N. S.] 1115), an Iowa case, the court said:
“That the owner of land abutting a country highway may also suffer special damage because of its vacation is too clear for argument. Suppose that a farmer owns forty acres of land that abuts on a highway which furnishes him his only means of getting to his land,
“It goes without saying that the value of the land is materially lessened by cutting off convenient access thereto, just the same as is the value of a city lot.”
The special property right that the abutting landowner has in a public highway is not to be damaged or taken from him without due compensation. The enjoyment of the property and improvements made thereon are to be considered in connection with the advantages of the public highway as a convenient outlet to the land, which is a valuable inducement to its ownership and goes to make up its usefulness and value. The owner has the right to expect that the established public highway will be continued and maintained as such; it is an advantage incident to his property which is indeed a special right going with the land, and which he may expect will continue with the land, and that he will not be deprived thereof for the public use without due compensation therefor. The following. authorities support the views announced, above: Pearsall v. Eaton County Supervisors, 74 Mich. 558, 42 N. W. 77, 4 L. R. A. 193; Peace v. McAdoo, 46 Misc. Rep. 295, 92 N. Y. Supp. 368; King v. Mayor, 102 N. Y. 172, 6 N. E. 395; Kray v. Muggli, 84 Minn. 90, 86 N. W. 882, 54 L. R. A. 473, 87 Am. St. Rep. 332; Butterworth v. Bartlett et al.,
The judgment of the lower court is reversed, and the case remanded.
Reversed and remanded.
