165 So. 795 | Miss. | 1936
Lead Opinion
The motion to dismiss is upon the familiar and well-established general procedural principle that a party to a cause cannot accept the benefits of that portion of an indivisible judgment therein which is favorable to him, and at the same time or thereafter prosecute an appeal from such portions of the judgment as militate against him; that an acceptance of a substantial benefit under an indivisible judgment operates as a waiver of the right of appeal therefrom. The argument is that the state highway commission has no right to enter upon and to appropriate to the public use any land of a private owner until three steps have been taken and completed by the commission, namely: First, the institution of a proceeding in eminent domain; second, the prosecution of such proceeding to a judgment of award; and, third, the payment in cash of the amount adjudged as compensation to the owner in the said eminent domain proceeding.
As to all parties having the right to resort to proceedings to take or condemn private property for public use, other than when the state or one of its political sub-divisions *166 is the condemnor, the statement of the general principle contained in the first sentence of the foregoing paragraph is undoubtedly correct, and we must concede the correctness of the necessity of the taking of the first two steps above mentioned when the state highway commission seeks the right to appropriate and to enter upon the land of a private owner without the owner's consent; that is to say, in such a case the commission undoubtedly has no such right of entry into possession until it has first instituted condemnation proceedings, and has prosecuted same to an original judgment of award, for the reason that up to the time of such original trial and judgment, but not thereafter, the owner has the privilege to challenge the right to take the property at all at any price, as is provided under section 1510, Code 1930. It is undisputed that in the case here before us the commission had taken the two first and necessary steps before it entered into possession, and it is undisputed that the owner has not challenged the taking under section 1510.
Therefore the first question for decision is whether it is necessary that the commission shall have taken the third step, namely, the actual payment in cash of the award before going into possession, and that question we shall answer in the negative, under the authority of Hinds County v. Johnson,
It is argued however, that, under section 4998, Code 1930, the only lawful method by which the state highway commission may condemn and thereafter enter into possession of the lands of a private owner is under the general Code chapter on eminent domain, and that section 1494 of that chapter is sufficiently explicit that no condemnor has the right to enter upon and take possession of the condemned property unless and until the amount *167 of the award has been first paid or tendered. This language is no stronger or more explicit, indeed, is not so strong or explicit, as compared with that contained in section 17, Constitution 1890, which, looking alone to its letter, plainly says that "private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law." That language makes no exception and according to the letter thereof includes every condemnor, whatever the character of the condemnor, and yet the court has held in the above-cited language in the Johnson case that, as to the state or its political subdivisions, actual payment in cash first made is not essential; and it requires no argument to demonstrate that a constitutional provision is of equal or even greater force as compared with a statute. And, since the constitutional provision has been and is now construed so as not to require actual cash payment in advance of taking possession in the case of the state or one of its political subdivisions, then a like statutory provision dealing with the identical subject-matter should receive a similar construction. The Johnson case plainly laid down the reason for the requirement in the constitutional section, which reason lies within all the statutes on the subject, that "the requirement of compensation in advance was to insure payment to the owner. It was in the nature of a guaranty against insolvency of the taker of his land. It was to relieve him of the uncertainties and exigencies of an ordinary unpaid claim, subject to be reduced to judgment, resulting in a nulla bona execution. These reasons can have no application or force to the taking of private property for public use by the state or any of its political subdivisions." And the court thereupon simply followed a maxim of legal construction as old as any of the books of the law that when, and to the extent that, the reasons of or for a rule disappear as regards a particular legal situation, *168 the rule to that extent also disappears as applicable to that situation. Cessante ratione legis, cessat ipsa lex.
The state highway commission, under section 170 of the Constitution of 1890, as amended in 1924, is a department or division of the state, and within its constitutional and statutory field of action is there the state itself. The commission is supplied with the funds actually on hand to cover the cost of every road project which, under its administration, has passed to the stage where actual work of construction or reconstruction is to be undertaken. Not only is the full faith and credit of the state pledged to the payment for the lands taken for rights of way for state highways, but the commission actually has the money on hand for the payment of all such rights of way immediately when and whenever the amount therefor is finally fixed or agreed upon. Consequently, when we have held and now reaffirm that the state is not required to first pay in actual cash for property taken by it for public purposes, the holding embraces the state highway commission in respect to lands taken for state highway rights of way. The inevitable further conclusion must follow that, when the commission has instituted the appropriate legal proceedings and the proceeding has validly advanced to the stage where judgment of award has been rendered as here and the owner has in the meantime instituted no inquiry under section 1510, Code 1930, then the commission has the lawful right to take possession of the property without first actually paying to the owner the money adjudged or any other amount of money.
And having advanced the inquiry thus far and pronounced the rules of the substantive law which lie at the foundation of the inquiry, we are now in a position to examine the final question whether, when the commission has taken possession after the award but without first paying the amount of said award, it has lost the right of appeal from that award, so far as concerns *169 the amount thereof. In this ultimate inquiry we are dealing with principles which appertain to the procedural or adjective side of the law. The procedural or adjective law is designed to serve the substantive law, and, when a procedural principle comes into such a conflict with a substantive principle as that, in the particular situation, both cannot stand, and one or the other must give way, then the substantive principle must survive, and the procedural principle must be subordinated to it, or, more properly, it is to be said that another and a more suitable procedural principle must be applied.
If we should say that the commission after the award must not take possession of the land except upon penalty of waiving its right of appeal from the amount of the award, we would reverse the stated rule, and would place a particular procedural rule in a position of dominance over the substantive rule. We have said that, when the proceedings have advanced to the stage indicated, the commission has the right to take possession without first paying the cash for that right. The proceeding when the judgment of award has been made has then progressed to the stage where it has been adjudicated that the taking is for a public purpose and as a public necessity, and, the condemnor being the only appellant, the right of the condemnor to the land has become fixed and established in any event. In such a situation and as to a condemnor who is not required under the substantive law to actually pay the cash before taking possession, the following procedural rule, equally as well established as the one first mentioned, must be brought into operation, namely, the rule that, where the right accepted by the appellant is one to which appellant is undeniably entitled, whatever the result of the appeal, the appellant does not waive the right of appeal by the acceptance of the then incontestable right. 3 C.J., p. 680.
It has been suggested and argued that the cited and *170 quoted portions of the opinion in the Johnson case were not necessary to decision therein, and are contrary to sound constitutional principles, and should now be overruled. The point was fully presented and argued in the Johnson case, and it was made one of the grounds, indeed the principal ground, upon which the decision therein was rested, and it is and was sustained by those among the most persuasive of the authorities which could be presented on constitutional law and as to the particular point. And a more inopportune occasion for the overruling of that opinion could hardly have arisen than just now. Even as this present opinion is being prepared, the Legislature and executive departments of our state government are advancing, with a unanimity of purpose heretofore almost unknown, to the launching of the most ambitious road-building program ever undertaken in this state. Millions are being set aside for the purpose, and it is being required that the greatest possible expedition shall be observed in the furtherance of the program. And while the legislative and executive branches are thus advancing, we of the judicial department are requested by a litigant to turn our faces in the backward direction and to overrule a decision by which it is possible for the highway commission to obtain their rights of way with reasonable promptness and at fair sums, and instead thereof to remit them to long delays in legal proceedings or else to submit to the excessive demands which many property owners make and which would have to be met in order to avoid the delays which would seriously affect the expeditious performance of this great statewide work.
It is said, as it is always urged in these cases, that it is against all just notions of constitutional guaranties, that any man shall be turned out of his property without his compensation therefor being first paid to him. We are declaring the law as we find it; we do not make the law. And if there be any injustice in the declaration in *171 the Johnson case, or as we now reaffirm that case, the Legislature which, even as we write, is now considering this whole highway question, may enact a suitable statute requiring the highway commission or any other department or subdivision of the state to deposit in cash, with its petition to condemn, such a sum as the commission or department or subdivision may deem fair for the property, and which the owner may at once take without prejudice to the rights of either the condemnor or the owner, whether as to the amount later to be fixed by the jury or as to any rights of appeal by either party
Cook and Anderson, JJ., concur.
Motion to dismiss appeal overruled.
Addendum
I am of the opinion that the motion to dismiss the appeal should be sustained. The right of the state highway commission to acquire land for highway purposes without the consent of the owner thereof is conferred and measured by sections 4998 and 1480 et seq., of the Code of 1930, under which it can take possession of land for highway purposes without the consent of the owner when, but not until, it obtains a judgment adjudicating the compensation to be paid therefor and pays the owner the compensation so awarded him. The judgment in such cases, as is the one here rendered, set forth in section 1493 of the Code of 1930, is, after fixing the amount of the award, that "Upon payment of the said award, applicant can enter upon and take possession of the said property and appropriate it to public use as prayed for in the application." We are not concerned here with what power the Legislature might have conferred on the appellant in this connection, but only with what power *172 it did confer on it, for the power conferred is in strict accord with section 17 of the Constitution.
The appellant accepted the benefit of the judgment appealed from by taking possession of the land thereunder, and thereby accepted also its burden, for the judgment is an entirety. Moreover, one of the rights of a defendant in an eminent domain proceeding is to have the jury view the land in order to determine the value thereof, and the amount of damages the defendant will sustain from the use thereof by the appellant. Should this appeal be allowed and result in the reversal of the judgment and the new trial the appellant seeks, this right of the appellees may be seriously impaired because of the changed condition of the land caused by the appellant's activities thereon.
McGowen, J., concurs in this opinion.
Addendum
The appeal should be dismissed because the highway commission took possession and changed the situation thus cutting off the right of having the jury view the land as provided in the chapter on eminent domain, section 1490, Code 1930.
It is manifest that the appellees were materially prejudiced in their rights by this course of action on the part of the highway commission. The right to have a jury view the premises, should a new trial be granted, is wiped out by the action of the highway commission. This right of viewing the premises is a very valuable right to both parties. A jury is able, from observation and experience, to determine the character of the property and to what uses it might be put by the owner, and can better judge of the value of the property to the owner than would be possible from the mere opinions and testimony of witnesses. The highway commission *173 had no right to enter upon the premises until the judgment of condemnation had been satisfied by the payment of money either to the property owner or into court.
The state highway commission is given the power of eminent domain by section 4998, Code of 1930, which, among other things, provides: "Said commission in case it shall be unable to agree with the owners of land containing road building material or for any additional land necessary for widening any existing public highways, or laying out a new public highway, or changing the route of an existing public highway, as provided for in the foregoing part of this section, said commission shall be authorized to condemn any land needed for either of said purposes, as is fully set forth in this section and the proceedings to acquire such lands by condemnation shall be in conformity with the statutes on the subject of `Eminent Domain.' The power of `Eminent Domain' being hereby expressly conferred upon said commission for that purpose."
The state, of course, had a right, in conferring the power of eminent domain, to provide a method and manner therefor not inconsistent with the Constitution, and to impose such restrictions and limitations as it thought proper, and having adopted for the highway commission the chapter on eminent domain imposes upon it the observance of that chapter. Under the section above quoted, the highway commission does not have the right to take possession until the compensation fixed by the jury is paid. Having failed to pay it and having taken possession, it should not be allowed to appeal from the verdict of the jury.
There are a number of cases decided by this court holding that a party abandons the appeal, or will be held to have waived the right to appeal, when he takes an inconsistent attitude with the rights of the litigants or accepts the benefit of a judgment. In Adams v. Carter, *174
In Kemper County v. Neville,
In Alabama M.R. Co. v. Mallett,
In Humphreys County v. Cashin,
The whole purpose of our statutory scheme with reference to suits by and against the state and its sub-divisions *176 is to place them on an equality of rights in all procedural matters. By section 6002, Code 1930, it is provided that the state shall be entitled to bring all actions and all remedies to which individuals are entitled in a given state of case, and may maintain actions of unlawful entry and detainer in all cases, at its option, for the recovery of land. And by section 6004, counties are given like rights. The manifest purpose of these sections is to put the state and its subdivisions on a plane of exact equality with those who litigate with it. And, as stated in the Cashin case, unless the statute makes an exception, the same rules will be applied to the state in its litigation as to other litigants.
It appears to me that it necessarily follows from the facts herein stated and the cases referred to that the appeal should be dismissed.
While I am of the opinion that the appeal should be dismissed for the reasons above stated, and think that the case of Hinds County v. Johnson,
It will be seen that the court did not commit itself to the doctrine that possession could be taken before payment.
The other case, Joslin Mfg. Co. v. Providence,
In Thompson v. Grand Gulf R. B. Co., 3 How (Miss.) 240, 34 Am. Dec. 81, the Constitution (Const. 1832, art. 1, sec. 13) was held to require payment to precede the taking of the property. In the first headnote, it is stated: "Under that provision of the bill of rights which declares, that `no person's property shall be taken or applied to public use without the consent of the legislature, and without a just compensation first made therefor,' the compensation must precede the seizure of the property for public uses." The court, at page 247 of the Mississippi Report of this case, said: "Several objections are made to the regularity of the proceedings of the circuit court, but it will be unnecessary to notice them in detail, as the case must be disposed of on the grave question of the constitutionality of the charter, taken and relied upon in the argument. That part of the charter which is said to conflict with the constitution, is the latter clause of the first section of the amendment. The ground taken arises under the provision in the bill of rights, which declares that `no person's property shall be taken or applied to public use without the consent *179 of the legislature, and without just compensation first made therefor.' It is insisted that the compensation should be first made, and that a judgment is not compensation. On the other hand it is said that it is sufficient for the legislature to provide the means by which compensation is to be acquired. To determine between the constitution and the legislature, is often embarrassing, and always demands a cautious and deliberate investigation. In the inquiry is involved the highest function of the judicial department. The acts of the legislature should be sustained if possible; the constitution must be preserved inviolate. We have approached this question under a due sense of its importance, and have given to it such investigation as the limit of our time would admit, and we are entirely satisfied with the correctness of the result to which that investigation has led. It is a sound rule in construing constitutions, that no word is to be rejected or disregarded which may have a material bearing on the rights of the citizen, and such construction should be given as will best protect private rights, because constitutions are limitations, which confine each department of the government to the exercise of such powers only as have been delegated. The word `first,' used in the bill of rights, cannot be regarded as useless; nor are we at liberty to suppose that it was inserted without design or by accident. The sentence is perfectly intelligible as it stands, and in accordance with first principles. By regarding the word `first' as material, there can be no difficulty in carrying the provision into execution by proper legislation; but by rejecting it, and assuming the position that it is sufficient for the legislature to provide the means or the mode of obtaining compensation, the provision might be wholly defeated, and owners compelled to part with their property without compensation. If the law be sustainable, it must operate generally, there is no exception to it," On page 248, the court further said: "We cannot *180 presume that the convention intended that this right should be exercised unless on terms the most favorable to individuals. Life, liberty and property are three great objects of governmental protection, and we must infer that due precaution has been used for the protection of each of them. To divest the right to property without ample compensation, would be unjust. The judgment in this case is not compensation. A judgment is but a security for compensation or satisfaction, which may or may not prove productive." The court here, in construing the provision, has expressly held that a judgment is not payment or compensation.
In Isom v. Mississippi Cent. R. Co.,
This doctrine has been announced in several other cases. See Penrice v. Wallis,
This decision was rendered in October, 1876, after the construction had been placed upon the Constitution in the cases of Thompson v. Grand Gulf R. B. Co., and Isom v. Mississippi Cent. R. Co., supra. The Constitution of 1869 had been adopted with the construction integrated in the Constitution, thereby becoming a part of it.
In Board of Levee Com'rs v. Dancy,
Where a statute or constitution, which has been construed by the Supreme Court, is re-enacted without material *185
change, and the same question again arises, the construction is controlling. Shotwell v. Covington,
See, also, upon this proposition of due payment being first made, Brownsville v. Cavazos,
It will be noted, from a comparison of section 17 of the Mississippi Constitution with the Fifth Amendment to the United States Constitution, that it does not require payment to be first made. The decision of the United States Supreme Court above referred to therefore shows that the Court recognized the force and effect of words directing the payment before the taking. Something is said in Judge Griffith's opinion about the requirements of progress and the progressive spirit of the Legislature. I desire to be understood as favoring progress when it can be made consistently with constitutional rights. I indulge a liberal attitude toward the state in all its agencies, within their rightful spheres. But, in my opinion, true progress is made by respecting the constitutional rights of citizens and restraining the sovereign from acts of spoliation and injustice. *186
The power of eminent domain can only be used for the purposes of the state. The use must be a public use. and it does not matter whether the state has delegated the power of eminent domain to a public or a semipublic agency, it is still the state acting. The state alone has the power to act in taking from the citizen his property for a public use. It is held, both by this state and by the United States, that a citizen cannot be deprived of his property for a private purpose. The state's promise to pay is not money, as held in the cases referred to, and it is demonstrated that such promise is not equivalent to money by the fact that, in the case of State of Mississippi v. Johnson,
Addendum
The highway proposed to be laid out across this property entered it near the southwest corner and proceeded in a northeasterly direction, being one hundred feet wide, and, at the point approaching Highway No. 80, it was flared out so as to make a frontage of two hundred feet on said highway.
Prior to the trial of this cause in the county court where the proceeding was instituted, the property of Mrs. Petit lying north of the Highway No. 80, and having a frontage of sixty feet and a depth of two hundred thirty-five feet, had been sold by her to the State Highway Commission at and for the sum of three thousand two hundred dollars. There was a residence on this property which she was permitted to remove, and the proof tends to show that seven hundred dollars of said three thousand two hundred dollars was for the purpose of having said house moved and repaired thereafter, and two thousand five hundred dollars was to pay for the land. There was also a purchase by the State Highway Commission from one Hawkins of a lot with forty-eight feet frontage lying north of the highway, at a consideration of forty dollars per front foot.
On the trial of the cause, the price of these two lots was offered in evidence, and all the witnesses testifying for the property owners based their opinions as to values and damages upon the price of these two lots. The *188 admission of such testimony was objected to by the appellant, but such objection was overruled.
The owners of property condemned testified that the only way they could value the property was by taking this sale price of the Petit and Hawkins property as a basis, and several witnesses based their judgment of the valuation upon this sale price and its comparison with the property of the appellees. One witness introduced by the State Highway Commission testified that the price paid for the Petit and Hawkins property was grossly excessive.
There was no proof as to whether or not the purchase made by the State Highway Commission was voluntary, or whether the sale by the property owners was voluntary and uninfluenced by the fact that the property was to be condemned by eminent domain proceedings.
There was testimony that the laying out of the highway, as described in the application, would destroy the property for dairy purposes; would necessitate the appellees removing their residence; and that, owing to the situation of the property not taken, it would be difficult to sell it as residence property, and its value therefor would be greatly damaged, if not entirely destroyed. It seems that there had been no other sales of property in that immediate community for some time, and none are shown since 1928.
So, as the record stands, there was no definite, legal basis for finding the damage except by basing it upon the sale price of the Pettitt and Hawkins property.
It is, of course, well settled in this state that benefits shared by a property owner in common with the general public are not to be considered or set off against a property owner's claim for damages.
The property in the case at bar was viewed by the jury, and their view, in connection with the testimony, caused them to render a verdict for five thousand dollars. *189
It is difficult to state, from the testimony, exactly how the appellees' property compared with that lying north of the highway which it had purchased. There is some testimony indicating a similarity, and it is manifest that all the parties testifying were influenced, to some extent, by the sales price of the property lying north of the highway.
The great majority of the courts that have passed upon this question have held that sales values or prices made in condemnation purchases to avoid litigation are not voluntary within the meaning of the law. 10 R.C.L., p. 220 et seq., sec. 188. The courts of New Jersey, Louisiana, and Massachusetts seem to admit evidence of sales made to avoid condemnation proceedings, and sales of like property near the time, to show the value of the property sold to avoid litigation. The reasoning of these authorities is that sales made in contemplation of condemnation proceedings to avoid the uncertainties thereof are not admissible, not being free and voluntary, and there being no meeting of minds as to what is a reasonable and fair value of the property involved, apart from the necessities of the case. One may be willing to take less rather than go through with a lawsuit and take the risks of a jury verdict. On the other hand, the condemnor may be willing to pay more than the actual, fair value of the property to avoid the uncertainties of litigation.
We prefer, in this case, not to lay down any definite and fixed rule upon that question, but we believe that before such evidence is offered and received, if it may be done at all, which we do not here decide, there must be preliminary proof, as a condition precedent to the reception of such evidence, that the parties considering sales were uninfluenced by prospective litigation, and that the minds of the parties on each side met upon the basis of what the actual value was. In other words, the proof must show that the person who has a desire *190 to sell would be willing to take the amount paid regardless of condemnation, and the buyer must be willing to pay the amount for the property taken regardless of prospective litigation.
In condemnation proceedings, a wide latitude is allowed under the law as to values, and usually intelligent and experienced witnesses, having knowledge of property and the uses to which it may be put, and who can give their opinions as to valuations, may be selected. It is not necessary that there should be actual sales made in the particular locality where the condemnation is being had for values to be ascertained, but the judgment of people familiar with property and its value, and with the uses to which such property may be put, will fix such values.
The property here involved is within the corporate limits of the city of Meridian, and we are satisfied that many witnesses may be obtained who are thoroughly familiar with the value of property in that locality, and the uses to which it may be put, and who can, from their knowledge and experience in and around the city, give intelligent and just opinions as to values, without considering sales of adjacent lands probably made for the purpose of avoiding litigation.
We are very reluctant to reverse this judgment, because the highway has been laid out and the road constructed; but we are satisfied that the court below was in error in admitting proof of the two sales under the evidence. The judgment will, therefore, be reversed and the cause remanded.
Reversed and remanded. *191