106 So. 83 | Miss. | 1925
Lead Opinion
Appellees, J.R., J.P., Winston, and Virginia Long, brought this action in the circuit court of Noxubee County, against that county (which, for the sake of greater clarity, will be referred to as board of supervisors and board) for damages claimed to have been suffered by *80 them because of the abandonment by the board of supervisors of the public highway in said county designated on the minutes of the board as "Road Link No. 11," upon which appellees' plantation abutted. There was a trial and judgment for appellees for fifteen hundred dollars and costs, from which the board of supervisors prosecutes this appeal.
The principal question in the case, and the only question we deem of sufficient seriousness to call for a discussion by the court, is whether the highway in question had been abandoned as such by the board of supervisors. Notwithstanding that is made the main question in the case in this court, that is not true of the trial in the court below. The abandonment of the highway lay at the very threshold of appellees' case. It was charged in their declaration as the foundation of their right to recover. But on the trial of the case the board's attorney admitted that it had been abandoned and the trial proceeded alone on the question of the amount of recovery. The controlling facts were as follows:
The highway involved was known as "World's Ferry Road" and was designated on the board of supervisors' minutes as "Road Link No. 11." Appellees, contending that the road had been abandoned as a highway by the board, duly presented their claim to the board of supervisors for the damages which they claimed to have suffered because of such abandonment, which claim the board disallowed, and thereupon appellees brought this action in the circuit court, where there was a trial on the pleadings and evidence of the respective parties and a judgment rendered for fifteen hundred dollars.
Appellees alleged in their declaration that in December, 1919, the board of supervisors abandoned and discontinued the highway; that although the order then made to that effect was not entered on the minutes of the board, nevertheless subsequent orders were made by the board which were entered on its minutes to the same effect; that at the January, 1921, meeting of the board, an order was placed on its minutes appointing road overseers *81 for the various public roads of the county which recited, among other things, "Road Link No. 11 discontinued;" that at its January, 1922, meeting in an order on its minutes dealing with the same subject, it was recited, "Road Link No. 11. Road discontinued;" that again, the board in its minutes at its January, 1923, meeting, dealing with the same subject, recited, "Road Link No. 11, discontinued;" and again, at its January, 1924, meeting, the board, dealing with the appointment of road overseers, recited in its order, "Road Link No. 11, discontinued." The minutes of the meetings of the board referred to, in dealing with other road links in the county which had not been abandoned as public roads but over which no overseers were appointed, recited, for illustration, "Road Link No. 12, no appointment." These orders of the board were made exhibits to appellees' declaration. The declaration avers that because of such abandonment appellees' farm lands which abutted on said highway had been damaged; that said highway was the sole and only ingress and egress to and from their plantation; that the improvements on their plantation had been placed there because of and in reference to said highways; and that the discontinuance of said highway and the failure of the board of supervisors to maintain it and have it worked made appellees' lands composing said plantation inaccessible and of much less value than theretofore.
The board did not demur to appellees' declaration, but took issue thereon. During the trial of the case, the court asked this question, addressing the attorney for the board of supervisors:
"Q. You don't deny the abandonment of the road, do you?" To which counsel made this response: "A. No; but we deny any damage."
That question during the further progress of the trial was treated by the court and both parties as having been settled. There was no issue of fact or of law between them thereafter touching the question whether the road had been abandoned. The question was not only not submitted *82 to the jury by the instructions of the court, but the instructions for both the board and appellees directed the jury peremptorily to find a verdict for appellees. This was done in at least two instructions for the board. The only question submitted to the jury was the question of the amount of damages appellees were entitled to.
We hold, in the first place, that the minutes of the board of supervisors show that the highway in question had been abandoned; that the county had surrendered its easement therein; that the public no longer had any interest in the highway. The minutes of boards of supervisors reciting their orders and judgments, like those of justices of the peace, will be looked upon with indulgence. Although they may be unskillfully drawn, if by a fair and reasonable interpretation their meaning can be ascertained, they will be sufficient to answer the requirements of law. Boards of supervisors, it is true, can only act through their minutes. But in this case they have acted through their minutes. In appointing overseers for the public roads of the county, the board of supervisors deal with a part of the jurisdiction conferred on them by section 170 of the Constitution — that of control over roads, bridges, and ferries. All the roads of the county were being dealt with. Probably it would have been more in keeping with regularity to have dealt with the abandonment of the highway in a separate minute; but, on the other hand, if one were trying to ascertain whether a road was a public highway or not, we doubt if the fact could be more readily ascertained than by going to its minutes appointing overseers for the different roads of the county.
And, furthermore, this court is a court of appeal, not a court of original jurisdiction; it is a court organized for the purpose of reviewing the rulings and judgments of the trial courts. As such, this court will not permit the case, as presented to the trial court, to be transformed into an entirely different case in this court. It is contended that the admission of counsel representing the *83 board that the road in question had been abandoned is not binding on the board, because it was an admission beyond the scope of appellees' declaration. As we construe the declaration, it alleged that the road in question had been abandoned as a highway, and as evidence of it there was presented with the declaration the four orders of the board entered in 1921, 1922, 1923, and 1924, reciting that the road had been abandoned as a highway. We do not think the admission of counsel representing the board to that effect was beyond the scope of the declaration, but within its scope and purpose.
The statute expressly gives the counties of this state the right to sue and be sued. When a county sues, or is sued, it stands in court like any other litigant. It is not a favored litigant. It is bound by the admissions and stipulations of its attorneys touching the action to the same extent that an individual would be bound. Appellees' declaration charged that this road had been abandoned; it was the foundation of their case. The board of supervisors, through its counsel, during the trial, made a solemn admission on the record that that was a fact; that it would not be questioned; and then went further and had the court to instruct the jury that appellees were entitled to recover, which instruction, of course, alone was based on the fact that the road had been abandoned.
We find no merit in the other contentions of the board and do not deem the questions raised of sufficient importance to require a discussion by the court.
Affirmed.
Dissenting Opinion
In order to get the contentions clear, I will state the substance of the declaration. The declaration alleged that the board of supervisors of Noxubee county, Miss., did in the year 1919 abandon and discontinue the road in said county and state known as the World's Ferry Road; said road beginning at Ash creek and continuing to *84 World's Ferry, and being known and designated as Road Link No. 11 of said Noxubee County, Miss. Plaintiff alleged that this order does not show upon the minutes of the said board of supervisors of Noxubee County, Miss., but was passed by them at their November or December, 1919, meeting. It is then alleged that on the ____ day of January, 1921, the board of supervisors in regular meeting of said board did adopt an order, a copy of which is attached to plaintiffs' bill, and asked to be considered as a part thereof, to which reference is made as often as is necessary for the purpose of identification and is marked "Exhibit A." Said order shows the appointment of road overseers for the county for said year, and that no overseer was appointed for said Road Link No. 11, but that said road link was discontinued. This order shows on its face that the board was dealing with the appointments of road overseers for the different highways of the county, and that said board was not dealing with the propriety or necessity of abandoning or discontinuing the road. Three other exhibits to the bill of like tenor and effect show on their face that the board was not dealing with the subject of abandoning or discontinuing roads, but were dealing with the appointment of road overseers. The two things are entirely disconnected.
The plaintiffs' pleadings expressly state that the order of the board of supervisors was not entered upon the minutes of the board and the other orders were introduced merely as facts in the chain of evidence to show an abandonment in fact without an order being entered upon the minutes of the board. The admissions of abandonment referred to in the majority opinion were made under a misapprehension of the facts, all of which were shown to the circuit judge on motion for a new trial, and there is no change of the case from that made before the lower court, because, when an admission is made under a mistake of fact and is made manifest to the court before the case is finally concluded in the court, the court should set it aside where it is manifest that a wrong result has been reached in the trial, and it is strictly within *85 the province of this court to review the action of the trial judge on the motion for a new trial seasonably made. Regardless of whether the admission was made under mistake, however, it should not go beyond the scope of the pleading, and the result of the majority opinion is to extend the admission beyond the scope of the declaration. The pleadings are construed most strongly against the pleader, and the express statement that the order was not entered upon the minutes must be taken as true, as there was no effort at any stage of the trial to amend the declaration.
In Smith v. Tallahatchie County,
In Morris v. Covington County,
"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 *86 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. Rowell,
"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'" — citing 2 Elliott on Roads and Streets (3d Ed.), section 1180.
In Jackson v. Monroe County,
In the case of City of Laurel v. Rowell,
"When people build on the side of, and with reference to, a public street, they acquire an easement in its free user by them and the public and in the resultant value of such user. This is property, and cannot be taken from them or damaged by closing the street, except upon compensation first paid. The closing of the street is a taking of the easement for the public use in the purview of our Constitution."
And at page 441 of 84 Miss., 36 So. 543, the court said:
"Countless oppressions of private citizens, too poor, too ignorant, or too humble to excite attention or enlist the advocacy of the influential, never see the sunlight of the courts of law. Many schemes which are hatched in `the perfumed chambers of the great' are feathered and winged in these councils, to the injury of the lowly and the poor. They must be held in with a tight rein at the bar of the people sitting in the persons of their judges in their solemn tribunals of justice. All the citizens of a town have the right to have their public thoroughfares, streets, or alleys, whether acquired by dedication or user, kept open for their own use and the use of visiting strangers who come for commerce or social intercourse. They should never be closed except when plainly for the public good, and cannot then be *88 closed except upon compensation first paid for any damage to abutting proprietors."
In the record before us there is no evidence and no minutes of the board of supervisors to reflect that the board ever took into consideration the public necessity or convenience in closing the highway. It gave no notice of any such intention so far as the proof in the record shows, and it is not suggested that any such notice was ever given. It is insisted, however, that this is a matter entirely for the board, and that the citizen is limited to the recovery of damages, and that he has no right to a hearing upon the question of closing the road or highway. Such argument is squarely in the teeth of section 14 of the Constitution, which provides that no person shall be deprived of life, liberty, or property without due process of law. The citizen might not want the highway closed. The necessity in fact might not arise warranting its being closed. The citizen might be able fully to show that the closing of the highway would be a public calamity as well as a private injury to property owners having property abutting thereon. There is no right to act arbitrarily in the matter. It cannot be the law that the board of supervisors of one county can obstruct a highway or roadway of the county without notice to any one. The board must act upon reason, and its action must be a judicial action adjudging jurisdictional facts, and before the board adjudges these facts, some notice must be given to the abutting property owners and should be given to the general public.
It is contended that there is no authority for such notice. If that be true, then no road or highway can be discontinued until the legislature provides a procedure. But in my opinion section 4400, Code of 1906, Hemingway's Code, section 7080, may be construed as a statute providing a procedure. The words "altered or changed" in said statute are certainly broad enough to embrace the abandonment or discontinuance of a public highway, and in my opinion should be given that construction which *89 would make it embrace a proceeding to abandon or discontinue a highway.
In Craft v. De Soto County,
Section 170 of our Constitution gives boards of supervisors jurisdiction over roads, ferries, and bridges, and I cannot see the difference in this constitutional jurisdiction and proceedings to lay out a public road, and the proceedings to abandon or discontinue a public road.
Our courts have generally held that the board minutes or records must show jurisdictional facts, and that an order made by the board without showing such facts is void. It seems to me that the present case is in direct conflict with the case of Craft v. De Soto County.
In Warren County v. Mastronardi,
Prior to the Constitution of 1890, abutting property owners had no right in the road that was recognized as a property right. At least such seems to be the effect of the decision in Nicholson v. Stockett, Walk. 67, but that case held that where there was a property right the Constitution required notice and a hearing. This case was contrary to practically the whole trend of judicial decision upon the rights of abutting property owners upon highways and streets. See 29 C.J. 523, section 234 et seq., and notes; 15 Am. Eng. Enc. L., p. 404 et seq. *90
In the case of Hatch v. Monroe County,
"Ordered that the Black Swamp Road, from Aberdeen to Dr. Ward's ginhouse, be discontinued as a public road, and that the overseer, J.B. Genber, be relieved from duty on said road; also, ordered that said road be kept open as a private right of way."
This road traversed a section of land belonging to Hatch, and after the passage of the foregoing order, she inclosed the road within her fields and cultivated it for agricultural purposes. On the 3d day of April, 1877, the board rescinded "so much of said order as discontinued said road as a public road." And on the 7th of August, 1877, the board appointed an overseer of the road, and assigned him hands for working the same. He proceeded to remove the fencing on the road, and to put it in condition for travel by the public; and the appellant, Hatch, enjoined the overseer and the board from opening the road. The court held that the board had the right so to do. That case is directly contrary to the result reached in the present case. In the Hatch case there was an order discontinuing the road as a public road. After making the order the board adjourned and more than two years thereafter reopened the road, and it is manifest that the power to do so was that the board had power to discontinue the working of the road and reserve the right of way. The road was not worked, yet it was not abandoned in the eyes of the law. In the present case the board merely discontinued working the road. Manifestly the *91 right of way was left for the use of any person who saw proper to use it and keep it in repair. The evidence in the case before us was not predicated upon the difference of value of the place with the worked road and its value with an unworked right of way, but the evidence for the plaintiff proceeded upon the theory that there was a complete abandonment of the road and that it had reverted to the property owners abutting thereon. Some of the evidence for the plaintiff pertained to the cost of buying a right of way from their property for a public highway.
It is said in the majority opinion that the county was cut off because it obtained an instruction to the jury to find for the plaintiff for nominal damages, and that he could not shift his theory from a recognition of that right there to a denial of it here. The court ignored the fact that the court below refused the county the following instruction:
"The court instructs the jury for defendant that a public highway is the name given to the right of the public to travel over the lands of another. The right may be acquired by the public in either of the following ways: (1) By dedication; (2) by condemnation; (3) by user for ten years. And if the jury believe from the evidence in this case that any of the roads testified about in this case have been used by the general public for ten years or more, with a claim of right to go over said roads, then said roads are public highways and cannot be legally closed to the public by the owners of the land through which the road runs."
The court ignores the fact that the plaintiff had obtained a peremptory instruction for nominal damages and in addition any amount resulting from depreciation in the fair market value of the lands of the plaintiff by reason of the abandonment by the county of the World's Ferry Public Road through the lands of the plaintiff. In other words, after the plaintiff had obtained a peremptory instruction and the defendant had been refused the instruction set out above, which was its first instruction, it had a right to shape its case according to the law *92 which the court below had ruled to be applicable, and it should not in any sense be regarded as an estoppel or as an adoption voluntarily of a legal theory. The record shows throughout that the county was contesting the plaintiff's right to recover damages, and inasmuch as the plaintiff was allowed damages for the right of way on the theory that the right of way had reverted to the property owners, and that consequently the plaintiff had no means of ingress and egress to and from his property, the judgment should be set aside and the case tried on the law.
Section 17 of the Constitution has wholly changed the right of the board of supervisors to discontinue a highway without a hearing and the payment of damages to the property owners. It certainly would be promotive of the public welfare to hold that the board could not discontinue and abandon a public highway without notice to the public, and I desire to call the attention of the legislature to the question so that some appropriate scheme for the protection of the public, as well as of the property owners abutting the highways, may be adopted.