46 Miss. 1 | Miss. | 1871
Emilie Frederic, widow of Lewis A. Frederic, deceased, and the children and heirs of said deceased, in 1870 filed their bill in the chancery court of Jackson county, against the New Orleans, Mobile & Chattanooga Eailroad Company, an incorporated company under the laws of the states of Alabama and Mississippi, to restrain said company from proceeding, under their charter, to acquire the lands of the complainants for the use of the company. The bill states that the decedent, in his life time, was the owner of a tract of land on the east bank of the Pascagoula river, having a front on said river of two hundred and thirty-eight feet,
Complainants do not object to the location of said road, nor to the right of way through said land, one hundred feet wide, and they state that the Pascagoula is a navigable stream, and that the front of complainants’ property is a high bank upon said river, with deep water close to the shore; and they, as owners of said land, have riparian rights upon the shore and river which are of great value to them, and of which they have the right of use and enjoyment.
It is conceded that the railroad company have the right, by their charter, to acquire lands for depots, stations and turnouts, but under this power it is charged that the company have proceeded to appropriate the whole of the river front to said property, from the shore easterly about one thousand feet, and have also acquired other property on the north of said line six hundred and fifty feet wide, under the pretense that the same is necessary for a depot or station; and under this pretense are ascertaining their right and power, under their charter, to acquire property upon the
Among the interrogatories propounded in the bill to which answers are demanded of the company, is this, viz.: “Whetherthe said lands of” the complainants, “imme
The company demurred to tlie bill, stating numerous causes tlierefor, the more important excepting to the bill, because it alleges the property in suit to be a homestead; because the gravamen of the bill is the right to the land on the bank of East Pascagoula river, a navigable stream, between high and low-water mark, which belongs to the public and not to complainants; because the bill shows ample remedy at law; and other causes involving a construction of the act of the legislature incorporating the railroad company. The demurrer was overruled, and the defendants appealed, assigning for error the decree overruling the demurrer. In view ‘of the facts admitted by the demurrer, that all the owners of the land in controversy were not served with notice of the proceedings of the railroad company to appraise the same, with a view to its condemnation and appropriation by the company as required by the charter, we have concluded to remand this case in order to have it heard on its merits. There are several questions of grave importance involved, which we can better determine upon a full understanding of all the facts, should the case come again to this court. We recognize the riparian rights claimed by the complainant, and the assertion of the bill in connection therewith, that the railroad company are experimenting upon their power under the charter to obtain rights not conferred and not necessary, and more lands than are required for depot purposes, as involving questions of merit upon which we now express no opinion, further than that they are important. One of the adjudications referred to by counsel for appellants, as bearing upon the case at bar, is that of Morgan & Harrison v. Reading, 5 Smedes & Marsh. 366, in which Ch. J. Sharkey delivered one of his able and learned opinions, sustaining the right of the owner of the land on the bank of the river to the thread of the stream, subject only to a right of passage thereon as a highway when the stream admits it. We are also referred to the
From these adjudications,* the rights of the complainants upon the bank of the stream and to the land under water, with their incidents, are easily deducible, as well as the power of the sovereign authority over private property. See, also, 34 Miss. 228; 36 ib. 300; 37 ib. 173; Bouv. Law Dic., title Riparian Rights, and cases there cited.
Curran v. Shattuck, 24 Cal. 427, was an action to enjoin the defendant from proceeding as an overseer of roads to open a highway over the lands of plaintiff. The latter denied that he had any notice of the proceedings of the road commissioners, which, being admitted, the court sustained the injunction, saying: “It cannot with propriety be urged, that the injunction in this case will prevent the laying out of a road at any future time over the lands of the plaintiff; for, notwithstanding the proceedings that have been had before the board, whether the proper steps are taken to acquire the right of way, and that right has been secured, the road may be opened, and the present injunction will not be operative against the exercise of the rights thus acquired.”
In the case at bar, as in the one last quoted, notice to the parties interested is a prerequisite, without which the proceeding is void. The company, invested with the extraordinary power to appropriate private property, a power which
Notifying, according to the bill, admitted by the demurrer, only one of the joint owners of the land involved, and thereupon proceeding to the appraisement and confirmation of the report, the company, by notice, claims the occupants to be tenants at will thereto. In restraining the further proceeding of the company, in such a case, the writ of injunction is performing its most gracious mission. 2 Story’s Eq. Jur., §§ 694, 698, 700, 701, 730, 861-872; Petit v. Shepherd, 5 Paige, 493; Burt v. Cassedy, 12 Ala. 734; Eden on Injunctions, ch. 1; 1 Madd. Ch. Pr.; 1 Ves. Jr. 284; 5 ib. 293, 618; 7 ib. 413; 1 Bro. Ch. 124; 3 ib. 15, note 1; 2 Swans. 159, note; 2 Pet. 95.
All statutory modes of divesting titles must be strictly followed. He who relies for a title upon an extraordinary mode of acquisition given him, not by the will of the owner, expressed or implied, but against his will and by the mandate of the law, must show for his warrant a strict compliance with those statutory rules from which his title accrues. The power confirmed must be executed precisely as it is given, and any departure will vitiate the whole proceeding. Busby v. Mountain Lake Water Co., 13 Cal. 306; Sedgwick on Stat. and Const. Law, 319; Cruger v. Hudson River R. Co., 12 N. Y. 190, and several cases in this state.
' It is no answer to the injunction to say there is ample remedy at law. The complainants are menaced in their title and possession by a quasi legal proceeding, and by a
Regarding railroads as public improvements, and their builders as public benefactors, nevertheless, holding an even balance of the scales of justice between them and the humblest citizen, the latter as well as the former must be protected in their legal rights. That the construction of the railroad is a great public enterprise cannot be invoked in justification of the violation of private rights, though it may be conceded, that in such cases an injunction is not a matter of absolute right, but depends upon a consideration of all the equities of the case. Bruce v. The Del. & Hudson Canal Co., 19 Barb. 371; Ely v. City of Rochester, 26 ib. 133; Creanor v. Nelson, 23 Cal. 464.
The justice of the injunction, upon the case presented, seems to be sustained by reason, the adjudications, and the constitutional guaranty that no person shall be deprived of his property, except by due process of law.
The decree overruling the demurrer is aíñrmed, with leave to defendant to answer within forty days from this date.