City of Greenwood v. Gwin

• Decision Date: 04 March 1929
• Docket Number: 27649
• Citation: 121 So. 160,153 Miss. 517
• Court: Mississippi Supreme Court
• Parties: CITY OF GREENWOOD v. GWIN et al. [*]

121 So. 160

153 Miss. 517

CITY OF GREENWOOD v. GWIN et al. ^[*]

No. 27649

Supreme Court of Mississippi

March 4, 1929

(En Banc.)

1. EMINENT DOMAIN. Constitution does not authorize court to determine public necessity for taking property (Constitution 1890, section 17).

Constitution 1890, section 17, does not authorize court to determine public necessity for taking property.

2. EMINENT DOMAIN. Decision of mayor and commissioners regarding public necessity for condemnation was conclusive, absent fraud or abuse of discretion.

Decision of mayor and commissioners regarding public necessity for taking by condemnation equal right with individual owner of easement to construct and maintain waterworks and sewerage system under streets, alleys, and avenues of addition to city was conclusive, unless brought about by fraud or abuse of discretion.

3. EMINENT DOMAIN. Property devoted to public use may be again taken for public use.

Property already devoted to public use may be again taken or damaged for public use.

4. EMINENT DOMAIN. City could not be compelled to condemn complainants' whole right to construct swerage system where public necessity only required equal easement with that of complainants (Constitution 1890, section 17; Hemingway's Code 1927, sections 1560--1583).

Under Constitution 1890, section 17, city could not be compelled to condemn complainants' whole right to construct and maintain waterworks and sewerage system under streets alleys, and avenues of addition to city in proceeding under Code 1906, sections 1854--1877 (Hemingway's Code 1927 sections 1560--1583), where public necessity required only the condemnation of an equal easement with that of complainants.

5. EMINENT DOMAIN. In city's proceeding to condemn in part right to construct waterworks system, complainants were entitled to compensation for part of easement taken and damages resulting as consequence (Constitution 1890, section 17; Hemingway's Code 1927, section 1571).

In proceeding by city to condemn in part right of complainants to construct and maintain waterworks and sewerage system under streets, alleys, and avenues, of addition to city complainants were entitled, under Constitution 1890, section 17, and Code 1906, section 1865 (Hemingway's Code 1927 section 1571), to compensation not only for part of their easement actually taken as specified in eminent domain application, but in addition damages resulting to them as consequence of taking.

6. EMINENT DOMAIN. City's application to condemn right to construct waterworks system sufficiently described rights sought to be condemned (Hemingway's Code 1927, sections 1560--1583).

In proceeding under Code 1906, sections 1854--1877 (Hemingway's Code 1927, sections 1560--1583), city's application to condemn right to construct and maintain waterworks and sewerage system under streets, alleys, and avenues of addition to city sufficiently described right sought to be condemned, where it was described as right and easement under all streets, boulevards, alleys, and avenues not to exceed ten feet in diameter by their length, the space to be filled by one or more pipes or sewers to be laid in one or more places, and to be done in such manner as not to interfere with carrying and conveying of water and sewerage in pipes, mains, and laterals laid or to be laid by complainant, etc.

ETHRIDGE, J., dissenting.

HON. HARVEY MCGEHEE, Chancellor.

APPEAL from chancery court of Leflore county., HON. HARVEY MCGEHEE, Chancellor.

Suit by S. L. Gwin and others against the city of Greenwood. A temporary injunction was issued, and a motion to dissolve the injunction was overruled. From the decree, defendant appeals. Reversed, injunction dissolved, and bill dismissed.

Reversed, injunction dissolved, and appellees' bill dismissed.

Alfred Stoner and A. H. Bell, for appellant.

The petition for eminent domain shows on its face that the city was seeking the organization of a court of eminent domain as provided by the code chapter on that subject. It will be observed that the city was merely proceeding to have all damages that cross-complainant might sustain, assessed to him by a jury of fair and impartial men. It is, of course, conclusively presumed that such a jury, if legally organized and instructed, will award full and complete damages for all injury. We were enjoined from even beginning the organization of the jury, having been restrained before the return day. The supplemental cross-bill praying injunction does not seek to restrain the city from using the property, but from having the damages assessed by a court of eminent domain and prays that the chancery court assess past and future damages. It will be observed that the cross-complainant, by this supplemental bill seeks redress for alleged past torts in chancery and in effect prays that the chancery court make of itself a court of eminent domain for the purpose of assessing damages that will be sustained by cross-complainant on account of laying pipes in the streets. "The exercise of the right of eminent domain cannot be decreed in equity either on original or cross-bill. The course to pursue is in the manner and in the special tribunal prescribed by chapter 40 of the Code of 1892. That is exclusive. Section 1679." Mobile, J. & K. R. R. v. Hoye, 87 Miss. 571, 40 So. 5. This case is directly in point. Sec. 1679, Code 1892, referred to above is brought forward as sec. 1560, Hemingway's Code 1927.

Our court has held that if a chancellor should entertain jurisdiction and thus usurp the powers of an eminent domain court and assess damages, such proceeding would be absolutely void and that on appeal the situation would not be helped by sec. 147 of the Constitution, which provides that the supreme court shall not reverse a decree of a chancery or circuit court on the ground of want of jurisdiction to render the judgment or decree. "The constitution does not help the proceeding. By the common law the circuit court had no jurisdiction of eminent domain proceedings, nor did the chancery court, by its institution in this state, have such jurisdiction, and the proceedings are entirely void because not in conformity with the powers conferred." Board of Levee Commissioners v. Brooks, 76 Miss. 635.

Appellees took the position and argued that the city could not condemn the right to lay water pipes under the street unless the city also condemned and purchased the old pipes that were laid by the original owners. In other words, that the city should be compelled to condemn and purchase more than it could use or needed. The ordinance passed by the mayor and councilmen of Greenwood adjudicated the fact that the city needed for public purposes only the joint right to lay its pipes under the streets, alleys, avenues and boulevard of the Boulevard addition. This fact having been adjudicated by the authorities of the city, we submit, that it must be conclusively presumed that the public has no need for the old pipes that are under these streets. In Winslow v. B. & O. R. R. Co., 28 App. D. C. 126, the court said: "Private property cannot be taken for public use unless there is a necessity for such taking, for the taking of property when not at all necessary for a public use, or the taking of more property than is necessary for a given public purpose, is, in effect, a taking for private use."

The petition seeks only the joint right to lay pipes in these streets. To condemn for the purpose of obtaining the joint right to lay pipes under the streets will affect the appellee only, but a condemnation of the pipes that were put into the addition eighteen years ago or the acquirement by the city of the exclusive right to lay pipes under the streets would take away from those who bought the right to be supplied with water through the old pipes, a right of more or less value, which value would increase and grow as the owners of the lots and water rights testified in an eminent domain court.

In the eminent domain proceeding the appellee has a right, and the city concedes his right to recover full and complete damages, but on the other hand, the city contends that it is the duty of the city's governing body to protect the citizens by condemning and purchasing no more than the city can use. Not only is the defendant in an eminent domain proceeding entitled to recover the actual value of the property taken for public use, but the instruction required by statute to be given to the eminent domain jury, informs the jury that they are required to assess in favor of the defendant all damages which may result to him as a consequence of the taking. Sec. 1571, Hem. Code 1927; Sixth Ave. R. R. Co. v. Kerr, 72 N.Y. 330. The award includes all damages, direct and consequential. Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; Yazoo v. Lefoldt, 87 Miss. 317, 39 So. 459; Brahan v. Meridian Tel. Co., 97 Miss. 326, 52 So. 585.

The basis of eminent domain is "public necessity." If all the property attempted to be condemned is not necessary for public purposes, then the condemnation, as to the property not necessary, would fail. If the city in the case at bar, had attempted to condemn and take over the old water pipes, the appellees could have defeated the proceeding by showing that only a right of way through the street was necessary. To attempt to condemn more than is necessary for public use, is to bring a proceeding in violation of the Constitution. Under our Constitution private property may be taken only for public use. See numerous authorities cited in 60 L. R. A. 191. The governing authorities of the city adjudicated that the pipes were not needed for public use and their adjudication is conclusive. Sec. 17, Constitution of Mississippi provides in part as follows: "The question whether the...