93 So. 437 | Miss. | 1922
delivered the opinion of the court.
The appellant owned the Northeast quarter of section 24, township 4, range 3 East, and the appellee owned tim
Defendant admitted substantially the allegations of the bill, except it contended that the agent of Mrs, Whitefort gave permission for it to cross said lands, and denied that said statutes above referred to were unconstitutional and void, and set up in the answer its business and the necessity for constructing said logging road across complainant’s land, but admits that it went upon the land in good faith, and was ready to pay for the right of way; but that after being notified that the complainant would not consent to the construction of its logging line over her land, the lumber company .proceeding in accordance with chapters 258 and 259, Laws of 1920, to have the board of super
The chancellor refused to grant complainant relief, dismissed her bill without prejudice on the theory that the defendant had applied to the board of supervisors to condemn the right of way, being of the opinion that chapters 258 and 259, Laws of 1920, are constitutional, and that the board of supervisors have jurisdiction of the subject-matter, and that the court should not interfere with it. From which decree this appeal is prosecuted.
The question of the constitutionality of chapters 258 and 259, Laws of 1920, is serious, but we do not find it necessary now to decide the constitutionality of such statute. In our opinion the proceedings before the board of supervisors did not present a case coming within the statute. The statute undertakes to grant a right of ay ay where necessary for ingress or egress. We think that under the statute, if it be constitutional, the petitioner, lumber company, must shoAV that it has been unable to obtain a right of way by contract or agreement not only from the party whose property he seeks to invade, but by any other reasonable way he seeks to secure from other persons a right of Avav. In other words, the petition must shoAV on its face that there is no other land over which the lumber company might secure a right of way, and must shoAV effort to obtain such right of Avay from such other OAvner. The petition does not show any reason why such other right of way Avould not be usable for the purpose, nor that it cannot be obtained by grant. The statute does not contemplate granting one citizen or corporation a right of way through the property of another citizen or corporation as a matter of mere convenience or as a mere matter of saving expense. There must be real necessity before private
We think also that the court erred in dismissing the bill, and that it ought to have granted compensation or damages for the invasion of the property already made and for trespasses already perpetrated. If a person or corporation desires to use the property of another person or corporation, they should first acquire a right to do so, either by contract or by any legal method available for securing such right of way; but if they act without a right so to do before proceeding according to law, they are liable in damages for all such acts done without authority of law. In order for the board of supervisors to obtain jurisdiction the petition should set forth the necessary facts to confer jurisdiction. It is a statutory scheme in derogation of common right, and the jurisdictional fact should appear in the face of the petition.
The judgment will be reversed, and the cause remanded, with directions to reinstate the injunction and award damages.
Reversed and remanded.