*1 230

sequence for the same result would if be these reached correspondents agents local ap- were in fact the. pellee; opinion may light and the read of this assumption.

Overruled. Rand et al. v. Mississippi State Commission. (In Suggestion Banc. Jan. 1941. of Error Overruled Feb. 1941.) So. 374.

[199 No. 34287.] Thompson Gulfport, Mize, appellants. & Mize, of *2 Attorney-General, Holmes, Jr., E. R. Assistant Gulfport, White Morse, & Smith, and Geo. R. all of appellee. *3 Argued orally by Thompson, Robert W. appellants, *4 by George E,

and Morse, S. E. Smith, R. Holmes, and R. appellee. Jr., for J., opinion

Griffith, delivered the of the court. This in case, all respects, substantial is similar to Dantzler v. Mississippi State Commission, 190

234 judg- day and the decided; Miss. ment So. remanded for the cause the will be reversed and paragraph ground final in the and on stated reason the opinion the in the Dantzler case. present point which in case There raised is one was and contention case, in the Dantzler that is but not plans specifications, together with testi- and mony highway engineers, that there will of the disclose be between lane on north for traffic west-bound and a narrow to the for east-bound traffic south plans neutral is to be and that in area, sodded,- which places pavement, in called there are to be widened parking bays, distance bus convenient intervals of for at Ap- stops temporary parking and the of automobiles. pellant says, argument, as we understand the that these highway are not within domain or construction improvement, and that the not Commission is authorized to condemn land to used in that manner. strips heavily high-

Neutral between on lanes travelled ways approved high- have an become in modern feature way construction and maintenance; and counsel does point any jurisdiction any case in wherein the authority to avail of such feature ever been has called question. preparation in And and maintenance of parking bays stops temporary parking and are so manifestly greater safety an incident to and convenience highway argument, beyond in service that no the state- necessary authority ment, is high- to sustain the of the way provide commission them.

Something been has said the discussions of the case plans specifications about the fact that were not original attached petition. to or filed with the In the present plans specifications case the brought were response into the case files to a motion for a bill of particulars; but without this the was sufficient. “That is certain which can be made certain means description petition. or references contained in the petition may The map plat refer to a or attached or on

235 description will be public . . and the . records, 2 by references.” made out such if it can be sufficient pp. pp. 957, 20 C. J., Domain, 979, 980; Eminent Lewis 958. will the briefs which matters are discussed in

Other probably trial, or else are covered arise in another not Mississippi High- in either in the Dantzler case or State way v. 189 Miss. 198 So. 565. Hillman, Commission

Reversed and remanded. opinion. concurring

Smith, C. J., delivered a The in this case the same reserva- contains to tions the owner the land be to taken limita- and by petitioner on the tions use thereof as in Dantzler Mississippi v. Commission, State 190 Miss. day repeat

199 So. 367 this decided, and I will not what except I may necessary there said insofar as be it so to do. holding

I concur in that error was committed admitting trial court in the evidence set forth in the controlling opinion, but not that it committed no other error.

The peti- reservations and limitations set forth in the brought tion were judgment, into the as in the Dantzler jury case, and as there appellant’s also, fixed compensation at one dollar. appellants say

The county that the only court erred not admitting evidence, but also in dismissing proceeding (1) because; of the reservations and limita- appellee’s petition; tions (2) appellee made attempt agree no compensation with him on the he should receive for (3) being land; the land was not taken for purpose; a (4) for one other reason hereinatfer to be set forth. My views on the questions first of these fully are set

forth in the Dantzler case, I so that will come at once to the second. petition alleges been the Commission has

1. The price agree with the defendant on the unable to paid right-of-way I over the land, easement argument, purpose will allegation assume, for requirement Section 4998 of satisfies *6 assumption, the Code. With that in this the discloses respect right a in to institute this the Commission proceeding, and forth me in the for the reasons set county authority case, Dantzler the court without was inquire allegation. to into the truth the of continuing I that, as if am mistaken to"

But, as appellant plea proceeding filed a in abatement of alleging appellee attempt agree that the had no made to compensation paid him with on be him for the taking plea of land. order to raise an on issue In a in abatement of an a action, defendant file must either replication presents a demurrer or a thereto. The first an allegations jury, court, issue of law for the if second, it denies presents plea,

of the an issue of fact for the provided by unless, as Section Code a jury waived, is be must decided before the trial of begins. the main replica- issue Neither a demurrer anor plea tion filed was to this in abatement, but without objection, judge the trial heard evidence thereon and plea. overruled the This evidence discloses all appellee appellant did was to tender the written a instru- conveying appellee ment to the the easement over the property sought here for the consideration of one dollar request sign with that he it, which he declined to do. appellant The evidence for the was that the land was “considerably worth more than dollar;” one that for the appellee may parties was that it was not. It be that the agreement could have reached an in matter, but appear that does not plea from the evidence on the in appears abatement. All that appel- therefrom is that the lant “sign was told to on the dotted line,” and that he declined to do so. There was evidence introduced later, jury when the appellant’s was called on to fix the com- that, taking com- pensation pensation to what the land as for the any it had if evidence, but that should be, plea intro- bearing have been abatement, in should on the be considered tried, and cannot when issue was duced plea plea lies, here abatement, if such a thereon. The by the evidence. was sustained sought public taken

2. Whether the land was county purposes not for the determination was appear proceeding, as will court eminent domain my opinion am but, from taken in the Dantzler if mis- case, I that,

as to discloses that to be evidence it was proper highway purposes devoted to therefore public purpose. appellant’s remaining complaint

3. The is of the alle- gation petition brought county in the forward into- judgment court’s that: “The above easement is con- purpose highway improvement, demned for the construction, reconstruction, use, maintenance and the plans improvement for said are.now on file in the office *7 Highway Department of the State at Jackson, Missis- sippi, Chancery County, and the Clerk’s of said Office subject only changes to minor Highway such as the State may necessary.” Commission deem It will be observed allegation petition that tins of the Highway limits the public Commission to the construction the of road to plans department’s the therefor file on in the office and in chancery the office of County. clerk of Harrison allegation evidently placed The petition was in the for purpose influencing jury of fixing appel- compensation. lant’s proper place It had 'no in the petition for contemplate the statute does not that coun- Highway ties and the Department, taking when land highway purposes, should limit the construction highway particular plan, to a and when highway is paved, to be any particular as this one is, character paving. of In other words, contemplates the statute Highway Department counties and the shall have a. constructing free hand in the character highway of a that. nearly and welfare. interest conforms to the most requirement may day on fail one satisfies this What appellant’s I next. not whether the on the am sure do so petition. may be in the It reached this defect demurrer proper it from the is that motion to strike a question, may, raising it but be that as method for petition. allegation have been in the should not Suggestion Error. oe On sug- opinion of the court on Roberds, J., delivered gestion error. of day reversed former term case was

At of this a admission and remanded because of erroneous of testi- appellants, by mony in the court below. Counsel for urge express opinion suggestion on error, us to an alleged originally assigned again other errors, now suggestion among raised in the which was a error, made remark counsel for the Commission during jury the voir dire examination of the to this effect, “It will be shown that there is Ten Thousand mortgage property mortgagee, Dollar on this and the Mr. objection highway being along has no to built Eaton, remanding there.” had We assumed the case prejudicial likely or this, remark, similar would not on trial, that, therefore, made another it was necessary express opinion for us to an thereon.

Suggestion of error overruled. Murphrer et al. v.

Ammons *8 (In May Suggestion Banc. 1941. of Error Overruled June 1941.) (2d) So. No.

[2 555. 34374.]