Lead Opinion
On SUGGESTION OE EeBOE.
delivered the opinion of the court on suggestion of error.
Aрpellees state in their brief on suggestion of error, “For obvious reasons, the appellant herein might well *106 be justifiеd iu conceiving that tlie judgment of tbe Court is mucb less favorable than a decree bolding tbe instruments to convey an easement alone, and it would appear that tbe appellants as well as tbe appellee аre entitled to a determination of tbis question.” Tbis suggestion isfavorably received.
It is urged that tbe Statute provides for аcquisition of ‘ ‘ lands ’ ’ by other means, to-wit by gift or otherwise. Code 1942, Sections 8023, 8038. Yet, in all events it must-be “necessary for a statе highway system” or for tbe purpose of obtaining “road building materials” or for tbe promotion of “tbe safety and cоnvenience of traffic.”
Code 1942, Sections 8023, 8038, authorizes tbe Commission “to obtain and pay for rights of way,” and to tbis end “may condemn ... or acquire by gift or purchase lands containing road building materials . . . to condemn or to acquire by gift оr purchase lands necessary for tbe safety and convenience of traffic.” The extent of authority in tbe сited sections contemplates tbe acquisition of rights of way to tbe end that a highway system may be constructed аnd maintained. That it may so acquire “land or other property” is to be interpreted in tbe light of a means by which it may аttain its ordained end, to wit, that such lands “be necessary for a state highway system. ’ ’
We are of the opinion that the purpose of our highway statutes, Code 1942, Title 30, is the acquisition of lands solely for highway purposes. It would attribute unwisdom to thе Legislature to construe the power delegated to the Commission as to divest a landowner of interests which thе Commission in turn could not exploit. Were the language of the grant of power in Sections 8023 and 8038 ambiguous, well known principles would be invoked to construe them in the light of the evident purpose of the Legislature. If there were no definition of the estate which the Commission is empowered to acquire, no more property may be taken thаn the public use requires. Nicholson v. Board of Mississippi
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Levee Commissioners et al.,
We are unable to detect any difference between the rights acquired by the Commission through purchase for highway purposes and those acquired by condemnation, which is the Commission’s resort to the same end after negоtiations for purchase have failed. We have held that rights acquired by eminent domain differ not at all from those obtained by prescription, and these are in both cases only an easement. Campbell v. Covington County,
We are of the opinion therefore that in this case the appellee acquired no more than it was empowered to acquire, that is to say, a right of way or easement. That the amount paid therefor may approximate the value of the fee is not here important for as stated in Nicholson v. Board of Mississippi Levee Commissioners, supra, at the time the deeds were executed “the damage to the owner, in practical effect, was approximatеly the same whether the fee or an easement was taken.” We do not find Dantzler v. Mississippi State Highway Commission,
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We notice, finally, tlie appellee’s contention that appellant is without right to raisе the point that the Commission exceeded its authority, and that only the State can complain. The principlе invoked is unquestioned in cases where parties other than the State itself seek to challenge corporate acts as ultra vires. But, here we are met with a case where the complaint is by the State through its Commission. By its bill to remove clouds, it raised the point. Appellants demurred. We conclude that the cases cited to supрort this contention are not applicable. Yet, see Southern Realty Company v. Tchula Cooperаtive Stores,
Our former opinion, which found sufficient support in the merits of defendant’s cross-bill, did not advance further into this fundamental inquiry. We are now of the opinion that, as suggested by appellee, this is a proper occasion to examine, as respects highway construction, the extent of the powers of the Commission in the light of the purрoses of the Statute. The estate acquired by appellee is measured by the language, not of the deeds, but of the Statutes. Abercrombie v. Simmons,
For the reasons above stated, our former opinion is withdrawn, and there being nо necessity to reform the deeds from appellants to the appellee, our former judgment herein will be sеt aside and bill of complaint dismissed.
So ordered.
Concurrence Opinion
*109 Concurring Opinion
delivered a concurring opinion.
I concur in the opinion and judgment now rendered; also in the withdrawal of the former opinion herein for the reason that the judgment now rendered makes the reformation of the deed from the appellants to the ap-pellee unnecessary.