Berry v. Town of Mendenhall

• Decision Date: 10 March 1913
• Docket Number: 15,778
• Citation: 104 Miss. 94,61 So. 163
• Court: Mississippi Supreme Court
• Parties: R. T. BERRY v. TOWN OF MENDENHALL

61 So. 163

104 Miss. 94

R. T. BERRY v. TOWN OF MENDENHALL

No. 15,778

Supreme Court of Mississippi

March 10, 1913

APPEAL from chancery court of Simpson county, HON. R. E. SHEEHY Chancellor.

Bill by R. T. Berry against the town of Mendenhall. From a decree dismissing the bill, the plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

C. M Whitworth, for appellant.

The board in closing Bay and Magnolia streets acted on a petition signed by all the abutting property owners, that owned property on those streets. This fact is copied in the order entered on the minutes, which recites, towit: "Same showing that all property holders had signed petition as required by section 3336, Mississippi Code 1906, was granted." This petition prays for the vacating and closing of these streets under this section, the only section that gives the board power to act in closing streets, and acting under this section on a petition signed by all the abutting property owners the streets were closed. The transaction is finished and completed. It is said, however that the last clause of the petition, towit: "Same to remain closed until public interest might demand reopening," invalidates the order. This, I contend, is mere verbiage, and does not rise to the dignity of a condition, but if it should be held as such, it is certainly not of that character as to invalidate the order; if it is not and only irregular, then it cannot be rescinded at a subsequent term. The records show jurisdiction of the board over the streets and the abutting property owners, when the petition was presented, and at the time of closing the streets, and there is no prejudicial error disclosed in the proceedings. That being true a presumption of law arises and sustains the judgment or order. See 37 Cyc. 188, 189, also footnote 61, copied, "Coakley v. Boston, etc., R. Co. 159 Mass. 32, 33 N.E. 930; Cheshire Turnpike v. Stevens, 10 N.H. 133, holding that a town cannot discontinue a highway during pleasure, with a reservation of a right to open it at any time, without paying damages. The reservation in such case will be void, and the discontinuance absolute."

The law has been substantially complied with in closing these streets. "Where the law appears to have been properly complied with, immaterial defects in the order will not invalidate it." "An order discontinuing a road, however irregular, cannot be rescinded for that cause at a subsequent term." See 37 Cyc. (vii), 187, 188. 37 Cyc. "B", p. 189, "As a rule it is held that an order or judgment discontinuing a public road must be deemed conclusive so long as it remains in force, and the correctness of a proceeding cannot be attacked collaterally, unless it is void." See 35 So. 111, Keenan v. Harkins, et al.

It is conceded and undisputed that the condition and the same state of facts existed, so far as the public interest is concerned, at the time these streets were ordered closed, as existed at the time these streets were ordered reopened. This being true, the board was estopped from considering the second petition for the reopening of these streets. See 16 Cyc. 685, Judgments. "Two sorts of estoppel arise from the record of a judgment--first from the record considered as memorial or entry of the judgment, and second, from the record considered as a judgment. As a memorial of the fact the rendition of the judgment record imports absolute verity and may be impeached by no one, whether or not a party to the proceeding in which it was made. As a judgment on the other hand the record has the further effect of precluding a reexamination into the truth of the matter decided; but in this aspect it is as a rule binding only upon the parties to the proceeding and their privies. This further and secondary effect of the record considered as a judgment is otherwise known as estoppel by judgment, the matters adjudicated being termed res judicata."

The power of municipalities to close streets is statutory, and when this power is exercised, in the absence of fraud, it is conclusive, and cannot be reviewed. See 37 Cyc. 202, 27 Am. & Eng. Ency. of Law (2 Ed.), p. 113, 114, also Blocker v. State, 72 Miss. 720, 18 So. 388, 27 Am. & Eng. Ency. of Law (2 Ed.), p. 117, quoting the language, "After the power to vacate a street has been duly exercised, the municipality cannot by repeal of the vacating ordinance amend its action in vacating the street."

See Garnley v. Day, 114 Ill. 185, McQuillin's Municipal Ordinance, p. 426. Under the fifth assignment of error the motion to suppress the depositions of the mayor and board of aldermen ought to have been sustained, for they were estopped from considering the second petition and from reopening the streets.

The question of closing these streets was heard at the March term, 1909, of the board when the facts were presented and a final adjudication was had closing them, so it is not in the power of the board to aid Elliot in forcing Berry to sell a certain plat of land or on his refusal to do so to suffer great damages by the opening of these streets. See 28 Cyc. 840 (b-846) in point. 16 Cyc. 786 says: "A party who has, with knowledge of the facts, assumed a particular position in judicial proceedings is estopped to assume a position inconsistent therewith to the prejudice of the adverse party." On page 798, it says:

"Applying the rule against taking inconsistent positions, parties to stipulations and agreements entered into in the course of judicial proceedings are estopped to take positions inconsistent therewith to the prejudice, injury or disadvantage of the party or the person setting up the estoppel." On page 799, 16 Cyc., it says: "A claim made or position taken in a former action or judicial proceeding will estop the party to make an inconsistent claim or to take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party, where the parties are the same, and the same questions are involved." In this litigation, the parties, the questions and the conditions are identical. It will be noted that several months passed before any action was taken by Elliott to have these streets opened. In the meantime Berry had erected his barn garden and orchard on these streets and no objection was made thereto, either by Elliott, the mayor, the board or the marshal, although they were present on several occasions while these improvements were being made, as is shown from the evidence, none of whom ever questioned his right or interposed any objections whatever. See 16 Cyc. 768; Witherspoon v. City of Meridian, 69 Miss. , 6 So. 244.

When these streets were closed there were two parties acting, to wit, all the abutting property owners on one part and the town of Mendenhall by its municipality on the other; so the order closing them was a finality--a res judicata--of the question. This being true, the opening of the streets could only be had under "Eminent Domain Proceedings," as directed under section 3337 of the Code of 1906. It, therefore, follows the action of the board in declaring the reopening of the streets was void, since there is no power or law conferring authority on boards of aldermen to open streets after having closed them permanently. See Illinois Central R. R. Co. v. State, 94 Miss. 759.

In the case of Witherspoon v. City of Meridian, Judge Campbell said, "We are not willing to declare against the doctrine of equitable estoppel to protect individuals against municipalities, under some circumstances. There may be cases where we would not hesitate to use the beneficient doctrine of estoppel in pais against the municipality. We can imagine such a case."

We submit this case under consideration evidently meets in all respects the imaginary case of this learned jurist.

A. M. Edwards and D. C. Enochs, for appellee.

Since this court has said that municipal authorities under the Code chapter on municipalities have the same jurisdiction over the streets as boards of supervisors have over county roads, the case of Hatch v. Monroe County, 56 Miss. 26, is in point as assisting the court in the construction of this order and the effect to give it. The board of supervisors of Monroe county passed an order as follows:

"Ordered that the Black Swamp road from...