110 So. 669 | Miss. | 1926
Appellee's action was based on section 17 of the Constitution, which prohibits the taking or damaging of private property for public use except on due compensation being made to the owner; and section 3336, Code of 1906 (section 5833, Hemingway's Code), which authorizes a municipality to close streets and alleys, but providing that due compensation shall first be made to abutting landowners upon such streets and alleys. The Illinois Central Railroad runs in a northerly and southerly direction through the town of Wesson, the appellant. Appellee owns a lot in a block situated on the east side of the railroad. Appellee's property abuts a street on the west. This street runs north and south, and on the west side of appellee's lot, and adjoins the right of way of the railroad. The block in which appellee's lot is situated is bounded on all four sides by streets, and appellee's lot abuts on three of these streets, the one on the west, the one on the south, and the one on the east. There was a street coming from the west through the town, which was one of its main thoroughfares, crossing the railroad at a point about one hundred feet northeast of the northeast corner of appellee's lot. This street entered the north and south street on the west side of appellee's lot. A large part of the travel on this street coming from the west went south on the street bordering appellee's lot on the west, and a large part of the travel going north on the latter street to the railroad crossing passed appellee's lot. He had a mercantile establishment on his lot. The frequency of the travel on the street west of *871 his lot brought trade to appellee's store. The municipal authorities of the town closed the street coming from the west to the point where it crossed the railroad and entered the north and south street west of appellee's lot, and substituted for that railroad crossing another on a street several hundred feet in a southerly direction from appellee's lot. The result was that a large part of the traveling public which had theretofore passed along the street in front of appellee's lot on the west was diverted to the new street crossing. It will be observed from this statement of the case that appellee's property does not abut on the closed street. The closed street enters a street on which appellee's property does abut, but it enters it at a point something like one hundred feet northeast of the northeast corner of appellee's lot.
We think the question involved is ruled by Poythress v.Railroad Co.,
It follows from these facts that the court should have granted appellant's request for a directed verdict.
Reversed, and judgment here for appellant.