Berry v. Southern Pine Elec. Power Ass'n

• Decision Date: 22 November 1954
• Docket Number: No. 39307,39307
• Parties: , 58 A.L.R.2d 508 H. L. BERRY v. SOUTHERN PINE ELECTRIC POWER ASSOCIATION, and State Highway Commission.
• Court: Mississippi Supreme Court

Page 212

76 So.2d 212

222 Miss. 260, 58 A.L.R.2d 508

H. L. BERRY v. SOUTHERN PINE ELECTRIC POWER ASSOCIATION, and State Highway

Commission.

No. 39307.

Supreme Court of Mississippi.

Nov. 22, 1954.

Dale & Wilson, Prentiss, for appellant.

Evon A. Ford, Taylorsville, Hugh McIntosh, Collins, for appellees.

McGEHEE, Chief Justice.

It is sought in this suit of the appellant H. L. Berry to recover damages, both actual and punitive, from the appellee Southern Pine Electric Power Association, and to obtain a mandatory injunction so as to require such Electric Power Association to remove certain poles and electric power lines from a right-of-way sold and conveyed by the appellant and his wife for highway purposes to the appellee Mississippi State Highway Commission, on March 13, 1939. The proof disclosed that the poles and electric power lines were placed on the highway right-of-way during the latter part of the year 1951 over the written protest of the appellant as abutting landowner but in reliance upon a written permit from the State Highway Commission.

The bill of complaint alleges that the right-of-way conveyed to the appellee Mississippi State Highway Commission by the appellant and his wife consisted of 'a strip of land 100 feet in width, extending through, over, on and across' the lands of the appellant consisting of approximately 86 acres, and was for 'a proposed highway as now surveyed and shown by the plans of said highway of file in the office of the State Highway Department at Jackson, Mississippi, and known as State Project No. 13-1500-C (1)' between the towns of Prentiss in Jefferson Davis County and Mendenhall in Simpson County, Mississippi. The proposed highway is what is now known as State Highway No. 13, which runs in a general north and south direction and passes through the Gwinville Gas Field and the village of Gwinville, Mississippi, in Jefferson Davis County.

The remaining lands of the appellant H. L. Berry have a frontage of approximately one-quarter of a mile on the east side of this paved highway. Directly across the highway from Berry's land there are located 12 or 13 nice residences facing to the east on the highway, together with the gas plant of the Southern Natural Gas Company where approximately 150 men are employed. There is a postoffice and store in the village, and the proof discloses without dispute that the property of Berry along the highway is as suitable for residential purposes as is the land across the highway and in front thereof, unless made less so because the appellee Electric Power Association has its poles and high voltage power lines on the east side of the highway right-of-way, and along in front of the Berry property. He testified that these high powered transmission lines being strung on poles about 25 feet high were considered dangerous in that they may fall or be blown down, and that as now located they would interfere with television and radio reception, and with the result that the fair cash market value of his land was reduced from $12,000 to $10,000 by reason of the location of the said high-powered lines between his one-quarter mile frontage on the highway and the paved portion thereof.

The appellant introduced a local citizen who claimed to be familiar with the fair cash market value of the land before and after this additional burden or servitude was imposed by the construction of this high-powered electric line; this witness thought that the residential sites of Berry's property fronting the highway were rendered at least $100 less valuable per lot by reason of the presence of the electric power line.

One witness for the defense, who lived about 15 miles from the land, expressed the opinion that Berry's property was not damaged by reason of the presence of these electric power lines. There were four of these lines, three of which carried 13,000 volts.

The trial judge rendered no express finding of fact on the conflict in the testimony as to whether or not the Berry property had been damaged, and since it is manifest from the great weight of the testimony that actual damage to the market value of the abutting property was shown we conclude that the decree dismissing the bill of complaint with prejudice was based upon the contention of the defendants that the complainant was without remedy even though the market value of his property may have been substantially reduced by reason of the location of the electric power line on the highway right-of-way, upon the theory that the appellee Electric Power Association was authorized and empowered by statute to place its electric power line on the highway subject only to the approval of the State Highway Commission and without regard to any objection on the part of the abutting landowner.

Section 17 of the State Constitution of 1890 provides, among other things, that: 'Private property shall not be taken or damaged for public use, except on due compensation * * * made to the owner or owners thereof, in a manner to be prescribed by law * * *.'

This Court held in the case of Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162, and in State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345, 6 So.2d 468, that Section 17 of our State Constitution is self-executing. The Court had theretofore held in the case of Hill v. Woodward, 100 Miss. 879, 57 So. 294, 39 A.L.R.,N.S., 538, that a guarantee in the constitution can not be overridden by the public policy of the State.

The Legislature has declared, with full authority so to do, a public policy of encouraging the development of the oil and gas and electric power industries in this State by giving them the right to build or construct pipe lines and electric power lines 'along or across highways, * * *, and public lands. * * *' The Legislature has authorized this to be done without regard to whether a landowner may be damaged thereby, and without regard to whether the landowner consents thereto or not. This, too, was a legitimate exercise of the legislative power, but as we held in the case of Willmut Gas & Oil Co. v. Covington County, Miss., 71 So.2d 184, 189, 'we can not assume that the legislature intended by the enactment of Sec. 2780 [Code of 1942] to violate the constitution. On the contrary, the presumption is that that body intended to comply with the organic law, and the statute should be given a reasonable interpretation which is consistent with that presumed intent and which would permit the upholding of the act.'

Section 2780, Code of 1942, which found its origin in Chapter 291, Laws of 1922, provides among other things as follows:

'All companies, associations of persons, municipalities, associations of municipalities, or natural gas districts, incorporated or organized for the purpose of building or constructing pipe lines and applicances for the conveying and distribution of oil or gas or for the purpose of constructing, maintaining and operating lines for transmitting electricity for lighting, heating and power purposes, are hereby empowered to exercise the right of eminent domain in the manner now provided by law, and to build and construct the said pipe lines and appliances along or across highways, * * * and public lands. * * * all such companies, associations of persons, municipalities, associations of municipalities or natural gas districts shall be responsble in damages for any injury caused by such construction or use thereof.'

Chapter 291, Laws of 1922, contains the last provision above quoted and has been brought forward as Section 2780, Code of 1942. This is one of the statutes relied upon by the appellee Electric Power Association as a defense of liability in the case at bar; and it is argued that when the appellant, H. L. Berry, executed his deed of conveyance of the right-of-way to the Mississippi State Highway Commission on March 13, 1939, he is deemed to have executed the conveyance with this statute of 1922 read into the same. Even so, the statute assured him that all such companies or associations should be responsible in damages for any injuries caused by the construction or use of an electric power line over the land described in the conveyance.

We should assume that the State Highway Commission in paying out the funds of the Highway Department did not intend to pay him for a second easement (not needed for highway purposes) to be utilized by an electric power company some twelve years later. So far as the actual intention of the parties to the conveyance is concerned, the grantor testified that the construction of an electric power line on the right-of-way was neither mentioned nor taken into consideration in determining the price or consideration that the State Highway Commission was to pay him for the right-of-way. His testimony to that effect is undisputed in the record. If he is to be bound by Chapter 291, Laws of 1922, wherein electric power companies or associations were authorized and empowered to build or construct their lines along a highway right-of-way, then it follows that such companies or associations in relying upon this statute are invoking the same in the light of their responsibility to pay any 'damages for any injuries caused by such construction or use thereof.'

The appellee Electric Power Association also invokes as a defense Subsection (f) of Section 8038, Code of 1942, brought forward from Chapter 47, Laws of 1930, granting the State Highway Commission the authority:

'To make proper and reasonable rules, regulations and ordinances for the placing, erection, removal or relocation of telephone, telegraph or other poles; sign boards, fences, gas, water, sewage, oil or pipe lines, and other obstructions that may in the opinion of the Mississippi Highway Commission contribute to the hazard upon any of the state highways, or in any way interfere with the ordinary travel, upon such highways, or the construction, or reconstruction or maintenance thereof, and to make reasonable rules...