Burkett v. Ross

• Decision Date: 26 March 1956
• Docket Number: No. 40070,40070
• Citation: 86 So.2d 33,227 Miss. 315
• Parties: E. E. BURKETT et ux. v. Robert M. ROSS, Executor of the Estate of T. E. Ross, Deceased, et al.
• Court: Mississippi Supreme Court

Page 33

86 So.2d 33

227 Miss. 315

E. E. BURKETT et ux. v. Robert M. ROSS, Executor of the Estate of T. E. Ross, Deceased, et al.

No. 40070.

Supreme Court of Mississippi.

March 26, 1956.

M. M. Roberts, Hattiesburg, for appellant.

Gray & Montague, Hattiesburg, for appellees.

McGEHEE, Chief Justice.

On March 25, 1955, the appellees Robert M. Ross, Executor of the Estate of T. E. Ross, deceased, Frank D. Montague and Bonnie Jean Montague, by Frank D. Montague, her attorney in fact, filed their petition in the Chancery Court of Forrest County to vacate a part of a subdivision of Forrest County, Mississippi, located about one mile west of Mississippi Southern College at Hattiesburg, but outside the corporate limits of the said municipality.

The petition as it relates to any rights of the appellants, E. E. Burkett and wife, the only defendants in the petition, seeks to have vacated 40th Avenue, twenty-five feet in width running north and south on the west side of Blocks 7 and 8 of the Pinecrest Second Survey. The defendants E. E. Burkett and wife own forty acres of land adjacent to the western boundary line of the said 40th Avenue, which is the boundary line between Lamar and Forrest Counties. Their residence faces the said avenue toward the east. Said defendants have resided on their property for more than twenty years and during all of that period their land has fronted on 40th Avenue for a distance of 1320 feet. West 4th Street, twenty-five feet in width, forms the northern boundary of Block 7, Mabel Street, fifty feet in width, forms the southern boundary of Block 7, and is between Blocks 7 and 8; and Montague Boulevard is a wider street, and all three of these streets extend westward across 40th Avenue to the Burkett property.

Both Blocks 7 and 8, the lots in which are unimproved, and all that portion of 40th Avenue on which the Burkett property fronts, is sought to be vacated pursuant to the petition in that behalf, except where the said three streets extend across 40th Avenue to the Burkett property.

It is proposed that 40th Avenue along the entire eastern boundary of the Burkett property be vacated and that the land embraced therein be awarded to the petitioners as owners of Blocks 7 and 8 so that the eastern end of all of the lots in Blocks 7 and 8 be extended across the said avenue to the Burkett property to make room for the widening of a twenty-foot street to a forty-five foot street, extending from north to south through the center of the said Blocks 7 and 8, and without the petitioners offering to pay any compensation to the Burketts for the depreciation of their property which they claim will result from the closing of 40th Avenue, and the awarding of the land embraced therein to the petitioners in its entirety.

40th Avenue was dedicated to public use in the platting of the Pinecrest Second Survey more than twenty years ago, during all of which time it has been open to the access of the Burketts and the general public, but unimproved. It will be noted that this is not a proceeding by the Board of Supervisors of Forrest County to close this avenue, located outside the corporate limits of the City of Hattiesburg, as aforesaid, and in the interest of the public welfare, but is a proceeding for the benefit of private persons in order that the twenty-four lots in Block 7 and the twenty-four lots in Block 8 may be rendered more valuable and easier to sell by having a forty-five foot street instead of a twenty-foot street running from the north of Block 7 through the center thereof, leaving twelve lots on each side of said proposed widened street, and running from north to south through the center of Block 8 to a twenty-foot alley so as to leave nine lots on each side thereof, and which alley forms the northern boundary of the other six lots in Block 8 which face Montague Boulevard on the south.

It is contended by the appellees that the closing of 40th Avenue as proposed will not result in the taking or damaging of any property of the Burketts within the contemplation of Section 17 of our State Constitution, and that there will remain to them a method of ingress to, and egress from, their property through the twenty-five foot street on the north of Block 7 which extends to the northeast corner of the Burkett property, through Mabel Street between Blocks 7 and 8, through the twenty-foot alley in the southern part of Block 8, and through Montague Boulevard on the south side of Block 8, which extends to the southeast corner of their land, the said Mabel Street extending to their land so as to intersect the eastern boundary of their property about half way from the northeast to the southeast corner thereof. Whereas the Burketts contend that they are entitled to access to their property along the entire eastern boundary thereof as now afforded to them by 40th Avenue.

The trial court sustained the petition vacating the said...