Berry v. United Gas Pipe Line Co., 51027

• Decision Date: 11 April 1979
• Docket Number: No. 51027,51027
• Citation: 370 So.2d 235
• Parties: Howard E. BERRY v. UNITED GAS PIPE LINE COMPANY.
• Court: Mississippi Supreme Court

Page 235

370 So.2d 235

Howard E. BERRY v. UNITED GAS PIPE LINE COMPANY.

No. 51027.

Supreme Court of Mississippi.

April 11, 1979.

Rehearing Denied May 16, 1979.

Eubanks, Temple & Hudson, Michael R. Eubanks, Purvis, for appellant.

Brunini, Grantham, Grower & Hewes, Newt P. Harrison, Leslie H. Southwick, Jackson, for appellee.

Before SMITH, P. J., and SUGG and COFER, JJ.

SUGG, Justice, for the Court:

United Gas Pipe Line Company filed a petition to condemn an easement for the purpose of constructing a pipeline across three contiguous parcels of land. Howard E. Berry owned an undivided interest in each parcel, but did not own the same interest in each parcel. Before filing its petition to condemn Berry's undivided interest, United acquired an easement from Berry's cotenants and constructed a pipeline on the easement without acquiring an easement from Berry.

A final judgment was entered in which the parties agreed that Berry was damaged $1,600, by the acquisition of an easement across his property for public use. The final judgment reserved to Berry, by agreement of the parties, the right to bring appropriate actions on the issues reserved to Berry.

The principal issue is whether the value of United's pipeline, placed on Berry's land before institution of the eminent domain proceedings, should be considered in assessing Berry's damages under the "before and after rule." The general rule, that a trespasser who builds on another's land dedicates his structure to the owner, does not apply against an entity having the power of eminent domain which enters as a trespasser and makes improvements for the public purpose for which it was created and given such power. This rule was adopted in Mississippi and the reason for the rule was first stated in L., N. O. and T. R.R. Co. v. Dickson, 63 Miss. 380 (1885). In that case a railroad company entered land as a trespasser and constructed its railroad upon land over which it had not acquired an easement. We hold:

The railroad company was a trespasser in constructing its road upon land over which it had not acquired the right of way, but it still had the right to acquire the right of way unaffected by the liability incurred for its trespass. The trespass committed is not involved in the determination of the due compensation. The continuing right of the company to secure the right of way, in accordance with its charter, and the nature of its entry on the land and annexing chattels to the soil distinguish the case from that of a trespasser who affixes chattels to the freehold, and the rule of the common law, established when railroads were unknown, is not applicable. Answerability by the company for its trespass in the appropriate action, and "due compensation" in the proceedings for condemnation of the right of way, constitute the full measure of the right of the landowner. (63 Miss. at 385).

See also Illinois Central Railroad Co. v. Hoskins, 80 Miss. 730, 32 So. 150 (1902) and Illinois Central Railroad Co. v. LeBlanc, 74 Miss. 650, 21 So. 760 (1897).

In Railroad Co. v. Hoskins, after acknowledging the common law rule that a trespasser who builds on another's land dedicates his structures to the owner, this Court did not apply the common law rule to an entity possessing the power of eminent domain, reasoning as follows:

" . . . This case is not the case of a mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter, and to place these materials on the land taken for a public use materials essential to the very purpose which the state has declared in the grant of the charter. It is true, the entry was a trespass by reason of the omission to do an act required for the security of the citizen, to wit: to make compensation or give security for it. For this injury the citizen is entitled to redress. But his redress cannot extend beyond his injury. It cannot extend to the...