Penrice v. Wallis

37 Miss. 172 | Miss. | 1859

Harris, J.,

delivered the opinion of the court.

The plaintiff in error filed his bill in the Chancery Court of 'Washington county, praying an injunction against the erection of a levee across his premises, until compensation should be made to him for taking and applying his property to the public use, and for other reasons not necessary to be noticed here.

The injunction was granted on the'4th February, 1859. On the 26th February, 1859, defendants filed their answer, in which, among other things, it is stated,' that since the filing of said bill (on the 21st February, 1859), the board of police for said county ordered the sheriff to summon twelve freeholders — a jury — to assess the damages complained of in said bill; that said jury assembled on the 24th February, 1859, and returned a verdict (Exhibit B.); this verdict shows, on it§ face, that the jury “ after talcing into consideration the advantages and disadvantages (of said levee), to the said complainant’, Penrice,” assessed “no damages.”

The answer further states, that defendants consider the old levee very insecure against.the next high water, as the bank of the river has fallen in, to within a few feet of the base of said levee, and that the river is rising rapidly, and prays a dissolution of the injunction.

The chancellor, on hearing the motion to dissolve, in vacation, sustained the motion; from which decision an appeal was prayed and allowed, and the cause brought here.

The first error assigned is, that the chancellor erred in dissolving the injunction. •

This necessarily results from the principles settled by this court in the late cases of Brown v. Beatty, 34 Miss. R. 227, and Isom v. The Miss. Cent. R. R. Co., 36 Miss. 300; unless it could be made to appear that the case falls within the principle of necessity, or of public protection, which demands immediate action, and cannot be made to await the delays necessarily incident to judicial proceedings. It is readily conceded that such public emergencies may exist as will admit of no restraint. Such are the calamities of fire, of war, of pestilence, of famine, where the great principles of self-preservation are as important and as applicable to states or communities as to individuals. And the same principles are equally applicable to impending imminent danger from flood as from fire. But in either case, to justify the abandonment of all attempt at legal redress, the imperative necessity must be at least apparently present. As long as there is ample time and opportunity to resort for remedy to the aid of the law, the plea of necessity affords no excuse, because of its falsity. The answer, in the case before us, really does not present such a plea. It does not pretend to set up such overwhelming necessity,-in the face of the facts- on the record. Indeed, such a position is negatived by the statement in the record, that after the’bill was filed, and the injunction obtained, resort was had to a jury, by order of the board of police; and that jury, pursuing the provisions of. the 6th section of the Act of 1850, instead of giving the plaintiff in error just compensation, in money, for the taking and application of his land to. the public use, according to the command of the Constitution, paid him off in the probable benefits to result'to him from saving his property from a prospective flood.

In the case above cited, upon full deliberation and examination of the conflicting opinions, in the different States of the Union, this c.ourt has pronounced such compensation unconstitutional, and the act directing it, void. We have only to add, that we are satisfied with that opinion, and refer to the reasoning by which it is supported in the cases cited.

Note. — Judge Yerger delivered an»elaborate written opinion on dissolving tbe injunction, in which he held the reverse of the rule laid down in Beatty v. Brown, and Isom v. Miss. Cent. R. R. Co., and in support of this view he cited the following- cases: Penn. R. R. Co. v. Heister, 8 Barr, 445; McMasters v. Commonwealth, 3 Watts, 229-295; Symonds v. City of Cincinnati, 11 Ohio R. 174; People v. Mayor, die., of Brooklyn, 4 Comstock, 419; Freeman Street (matter of), 17 Wend. 649 ; lynch v. Mallony, 4 Denio R. 356 ; Roxford v. Knight, 15 Barb. It. 627; Commonwealth v. Coombs, 2 Mass. 492; Commonwealth v. Sessions of Middlesex, 9 lb. 31; Meacham v. Fitehburg R. R. Co., 4 Cushing, 291; Upton v. South Reading R. R. Co., 8 lb. 600; Luther v. Winnisimmit, 9 lb. 171; Sat-terlee v. Maithewson, 16 Serg. & B,. 179; James River & Kanaivha Co. v. Turner, 9 Leigh. 413; Angelí on Highways, H 115, 116, and notes.

The second error complained of, was the order or decree of the chancellor, allowing the defendants to proceed to construct the levee, after granting the appeal, from the order dissolving the injunction.

This was error : first, for the reason already stated, that “ just compensation” had not heen “ first made and second, because an appeal from an order dissolving an injunction, if allowed, suspends the operation of the decision and decree appealed from, necessarily; else the appeal is allowed and disallowed by the same judgment. Such a decree would be repugnant on its face.

The last error assigned is, that there was not sufficient notice of the motion to dissolve.

The record shows that the parties were both present, by themselves and counsel, on the hearing of the motion. No objection seems to hare been then urged on this point. We think it therefore too late to insist on it here.

Let the order and decree of the court below be reversed, and cause remanded for further proceedings.