Board of Sup'rs of Covington County v. State Highway Commission
| Decision Date | 18 March 1940 |
| Docket Number | 34092 |
| Citation | 194 So. 743,188 Miss. 274 |
| Parties | BOARD OF SUP'RS OF COVINGTON COUNTY v. STATE HIGHWAY COMMISSION |
| Court | Mississippi Supreme Court |
APPEAL from the chancery court of Covington county HON. BEN STEVENS Judge.
Suit by the Board of Supervisors of Covington County against the State Highway Commission for damages for constructing road across school land. From an adverse judgment, complainant appeals. Affirmed.
Judgment affirmed.
W. U Corley, of Collins, for appellant.
The question of the right of the complainant to institute this suit, for timber and soil properties having been settled, by the payment for the timber and the soil removed, we are now narrowed to the question of the right of the State Highway Commission, as an arm of the state government, to appropriate sixteenth section land to public use, without compensation or, has it the right to compensate by way of sale such lands, and appropriate to public use? We want to make it clear, that the sixteenth section of lands here involved, is not the property of the State of Mississippi, and that the title thereto, is not vested in the State of Mississippi. On the contrary, the title is vested in the state as trustee only, for the use of the inhabitants of the respective townships in which such such sixteenth section happens to be located.
Jones v. Madison County, 72 Miss. 777.
School lands are for the benefit of the township, and the legislature has no right to divert it to any other purpose.
Morton v. Grenada Male and Female Academies, 8 S. & M. 773; Chamberlain v. Lawrence County, 71 Miss. 949.
Board of Supervisors may sue for timber.
Dantzler Lbr. Co. v. State, 97 Miss. 355.
Board cannot lease for oil.
Gulf Refining Co. v. Terry, 163 Miss. 869; Jackson County v. Worth, 127 Miss. 813.
Timber sale by a lessee is void.
Warren County v. Gans, 80 Miss. 76.
The lessee cannot sell.
Jefferson Davis County v. Simrall Lbr. Co., 94 Miss. 530, 538; Jackson Naval Stores Co. v. Tootle, 96 Miss. 486.
A lease carries only such rights and privileges as a leasehold estate.
Moss Point Lbr. Co. v. Harrison County, 89 Miss. 448; Bridgforth v. Middleton, 186 So. 837.
In dealing with the question of the disposition of sixteenth sections, the court held in Weiler v. Monroe County, 76 Miss. 492, wherein it corrected its former opinion, "There never was power to sell in fee; we have been wholly unable to find any such legislative authority".
The title to sixteenth sections school lands in the state, in trust, for the support of the public schools of the township in which they are located.
Jeff Davis County v. Simrall Lbr. Co., 94 Miss. 530, 538; Amite County v. Steen, 72 Miss. 567; Carroll County v. Estes, 72 Miss. 173; Forsdick v. Tallahatchie County, 76 Miss. 662; Code of 1930, secs. 6756, 6757, 6759, 6760, 6775, 6777.
With all these precautions taken by the legislature, how can a mistake be made to wander into the idea, that a corporation, even though it be an arm of the state government, can appropriate lands, held in trust to public use, either with or without compensation? Can it be allowed over all these safeguards to override the statutes, the Constitution, and all the rulings and decisions of the courts, including this court, and take a 100-foot strip, one mile in length without consulting any one, much less to secure permission?
It is a well settled rule, that the beneficiary can follow the trust property and retake either the property or the value or proceeds thereof from the trustee.
Johns v. Williams, 66 Miss. 350, 6 So. 207; McCloud v. First National Bank et al., 42 Miss. 99; Morrison et al. v. Kinstra et ux., 55 Miss. 71; Isom, Treasurer, v. First National Bank et al., 52 Miss. 902; Wood v. Stafford, 50 Miss. 370.
The legislature may convey public property in trust. This being true, Congress or the Cession Act could likewise do so.
Sinking Fund v. Walker, 6. How. 143.
A trustee is bound to use reasonable diligence in preserving the estate for his beneficiary.
Joor v. Williams, 38 Miss. 546.
Equity exacts fidelity and loyalty to their principals from agents and fiduciaries and will strip from them every advantage obtained from a breach of trust, and will turn over to the principal upon just terms the fruit of any transaction involving a branch of good faith.
Gillenwaters v. Miller, 49 Miss. 150; Pressly v. Ellis, 48 Miss. 574; Coffin v. Bramlitt, 42 Miss. 194.
In the case at bar, we have no constitutional requirement of the state for such taking for a state highway; this particular section of land has been split in twain, without compensation, and devoted to the use of the public, when it is not even permissible to use funds derived from one such section to the use of the inhabitants of another township. It is not possible for the inhabitants to be educated from this highway, that they cannot reach, or get into.
City of Edwardsville v. Madison County, 96 N.E. 238.
As a rule, property already taken for a public use cannot be appropriated to a different public use, unless the legislative intent that it be so taken is shown, expressly or by necessary implication.
City of Moline v. Green et al., 96 N.E. 911; 15 Cyc. 611; Fort Wayne v. Ry. Co., 132 Ind. 558, 32 Am. St. Rep. 277.
And even with legislative authority, where the property intended to be used is trust property, as here, there is the limitation that bars it.
We submit that if the state highway had taken from the Board of Supervisors, or its treasury, one thousand dollars of sixteenth section funds of 16-8-15 and appropriated it to building a highway and the Board had allowed it, there would be some recovery on bonds, and we see no distinction. So, we assert with confidence that our reasoning is correct, and this case should be reversed.
E. R. Holmes, Jr., Assistant Attorney-General, for appellee.
The Board of Supervisors does not have the right to sell sixteenth section lands, but this court must see that it is sometimes necessary, in laying out and constructing a comprehensive system of state highways, to cross sixteenth section lands with such highways. In fact, it would be a serious damage to the value of sixteenth section lands if no state highways ran through or could run through them. But section 211 of the Constitution provides that sixteenth section lands shall not be sold. How then can a right-of-way across such lands for the proper and adequate construction and maintenance of a comprehensive system of state highways be obtained?
Section 17 of the Constitution of 1890 says that private property cannot be taken or damaged unless just compensation is made therefor, but sixteenth section lands are not private property. Sixteenth section lands are public property and this public property cannot be sold. We contend, therefore, that this public property can be taken and used for the construction and maintenance of state highways in a proper case without compensation therefor, and that such taking will not violate section 17 of the Constitution or section 211 of the Constitution.
The case of Washington County v. Board of Mississippi Levee Commissioners, 171 Miss. 80, 156 So. 872, decided this proposition, and, in our opinion, is absolute authorty for the statements just made. There is no distinction between that case and the instant case.
The court held in the Levee case that whole sixteenth sections might be used or destroyed in the construction of levees without any compensation to the Board of Supervisors of the County. We firmly believe that in this, a highway case, the court should hold that sixteenth sections might be improved by the location and construction of a highway through the section without any compensation to the county.
On this theory, the State Highway Commission has been operating for ten years. The interests of private lessees have always been paid for, but the sixteenth sections have been crossed without compensation to the several boards of supervisors in every instance. Thousands of miles of roads, forming in the whole a comprehensive system of state highways, have been re-located and reconstructed in the state of Mississippi, and necessarily hundreds of acres of sixteenth section lands have been crossed in the construction of such highways. If, after ten years of such departmental custom, usage, and construction, this court holds that the boards of supervisors must be compensated for the use of sixteenth section lands for highway purposes, the State Highway Commission will, in compensation therefor, pay out hundreds or thousands of dollars for rights already acquired. We think that in following the authority of the Levee Board case and in following the departmental construction and practice this court should hold that sixteenth section lands may be taken and used in a proper case for highway purposes. There is no intimation or allegation in this record of abuse of discretion or of the improper use of sixteenth section lands so taken.
The Board of Supervisors of Covington County brought suit against the State Highway Commission for alleged damages in laying out a road across the sixteenth section--township 8 north, range 15 west, in Covington County.
The bill of complaint set forth that: The sixteenth section lands were acquired, in trust, for the use and benefit of the inhabitants of the township; that the board of supervisors had been vested with control of the lands for the benefit of the inhabitants; that the sale of such lands was prohibited by section 211 of the Constitution; and that the board of supervisors cannot give title or any equity in such lands other than the existing lease, as the same is reserved always and for all time...
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