City of Jackson v. Merchants' Bank & Trust Co.

• Decision Date: 15 January 1917
• Docket Number: 18564
• Citation: 112 Miss. 537,73 So. 573
• Parties: CITY OF JACKSON v. MERCHANTS BANK & TRUST COMPANY
• Court: Mississippi Supreme Court

73 So. 573

112 Miss. 537

CITY OF JACKSON v. MERCHANTS BANK & TRUST COMPANY

No. 18564

Supreme Court of Mississippi

January 15, 1917

Division A

APPEAL from the chancery court of Hinds county, HON. O. B. TAYLOR Chancellor.

Bill by the Merchants Bank & Trust Company against the City of Jackson. From a decree granting relief in part both sides appeal.

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

Decree affirmed.

Wm Hemmingway, for appellant.

Granting that estoppel applies to municipal corporations, the act must be within the scope of the authority of its officers. (28th Cyc., 465.)

In only two cases has the doctrine of estoppel even been hinted at by our court. They are Witherspoon v. Meridian, 69 Miss. 288, 13 So. 843; Vicksburg v. Marshall, 59 Miss. 563. In the Witherspoon case the court said it was conceivable that estoppel might arise, and in the Marshall case it said it was possible as to certain persons the city was estopped to deny the correctness of a doubtful survey but did not say it was estopped as to appellee, Marshall.

In the Marshall case the people had built on the line on which Marshall had also built. The attempt of the city was to force him back and place him out of line with the buildings previously constructed. In this case the city is attempting to make the Merchants Bank & Trust Company get back on the line with the other property-owners.

The city found it necessary when they paved Robinson street to establish the grade by an ordinance. It is true they would have to get their information from a survey. If it is necessary to establish a grade by an ordinance, how much more necessary is it that property lines should be acted on by the council?

Unless the courts prevent the councils and boards of aldermen from disregarding the rights of the public on streets, it might be very easy for certain of these people to acquire a preference in these streets. The streets might be closed for the purpose of some one to construct a building on it.

It must be borne in mind that this building was constructed in 1906, and in 1908 acting by ordinances, sidewalks were laid on the north side of Robinson street from Short street to the city limits on the line claimed to be correct by the city, showing no intent of the city to acquiesce in the line on which this building was constructed, and was due notice to any one encroaching on the street that the city intended to claim the full width from the city limits to Capitol street.

Can the city be estopped by an unauthorized act of a city employee, it being also an act which the power to perform cannot be delegated by the legislative body of the city, when the party dealing with the city had knowledge of the condition and is charged with the knowledge of the power of the agents of the city? There is no evidence to show that the city made any compensation to the abutting property-owners at any time.

Appellee and cross-appellant either wholly misconceives or deliberately evades appellant's and cross-appellee's theory of this case. The brief of appellee and cross-appellant is neither responsive to the state of facts nor the authorities cited as sustaining its contention.

In quoting from the decision in the case of Witherspoon v. The City of Meridian, 69 Miss. 288, 13 So. 843, attorneys for the appellee come to a period too soon. Judge CAMPBELL who wrote the decision in that case added to the quotation of the attorneys "but this is not one."

The state of facts in the case of Krause v. The city of El Paso, 101 Texas, 211, 14 L. R. A. (N. S.) 582, is in nowise parallel with the state of facts in the case at bar for the reason that Mrs. Lewis, through her agent with knowledge accepted the line in the face of and in spite of positive admitted present knowledge of the fact that the line so accepted was an encroachment upon the street as dedicated, marked out by monuments, accepted by the public and used as a highway.

In addition to this, the rule in Texas bearing upon the operation of the statute of limitation is different from the Mississippi rule. The doctrines of equitable estoppel and the limitation of action are analogous. In Texas the statute of limitation operates against a municipality. See Elliott on Roads and Streets, Vol. 2, paragraph 4187, note 73. Upon a checking of the cases as authority for the proposition, that a municipality can be equitable estopped, develops that fact that many of the cases so cited arise in those states in which the doctrine of the operation of the statute of limitation against municipalities has been adopted. In Iowa the statute of limitation operates against municipalities; In Illinois and Montana title can be acquired by prescription. Oliver v. Synhorst, 48 Oregon, 293, 7 L. R. A. (N. S.) 243, and note cited as authority to sustain the doctrine announced in Vol. 10, Ruling Case Law, pages 712-713, has been superceded by the latter case of the City of Portland v. Poulson Lumber Company, 46 L. R. A. (N. S.), page 1311, which last case was followed by the learned chancellor in the decree rendered by him in this cause.

In Mississippi the statute of limitation does not operate against a municipality. Because of its very nature the doctrine of stare decisis does not apply to an equitable estoppel against a municipality.

The court can look at the facts in this case and do pure justice to the public, unhampered and untrammeled by prior utterances of the court even had they been statements of the law and not obiter dicta as they were.

Mayes, Wells, May & Sanders, for appellee.

This case is controlled by the beneficent doctrine of estoppel in pais against the municipality, the city of Jackson, appellant herein, as was correctly held by the chancellor. But the chancellor erred in limiting the city's estoppel to such time as the building as at present constructed should remain standing.

The rule governing this case is succinctly stated in Volume 10, Ruling Case Law, pages 712 and 713, as follows:

"Consequently courts in many cases have applied the rule that a municipality may be equitably estopped, as against an abutting owner on a highway, street or alley, who has been encouraged or permitted to make improvements on his property with reference "to what he believed in good faith to be the correct line, from establishing the true line, if its establishment would necessitate the removal of such improvements or result in their irremediable injury."

And in support of this statement of the rule, the following cases are cited: Note 3. Carlinville v. Castle, 177 Ill. 105, 52 N.E. 383, 69 A. S. R. 212; Lee v. Harris, 206 Ill. 428, 69 N.E. 230, 99 A. S. R. 176; Peoria v. Central Nat. Bank, 224 Ill. 43, 79 N.E. 286, 120 A. S. R. 258; Pella v. Scholte, 24 Ia. 283, 95 Am. Dec. 729; Smith v. Osage, 80 Ia. 84, 45 N.W. 404, 8 L. R. A. 633; Von Tobel v. Lewistown, 41 Mont. 226, 108 P. 910, 137 A. S. R. 733; Oliver v. Synhorst, 48 Ore. 292, 86 P. 376, L. R. A. (N. S.) 243 and note. Notes: 18 L. R. A. 147, 36 L. R. A. (N. S.) 1057.

Immediately following the statement of the above general rule, the author continues: "Especially when the city has run the street line, will it be estopped to change such line to the correct position so as to necessitate the destruction of a building erected in accordance with the line so run."

In support of this announcement is cited the case of Krause v. El Paso, 101 Tex. 211, 106 S.W. 121, 130 A. S. R. 831, 14 L. R. A. (N. S.) 582, and this case is highly interesting and instructive; almost identical in its facts, except that the facts of the instant case called even more strongly for the application of the principle than in the Krause case.

The rule is stated in 3 McQuillan on Municipal Corporations, sec. 1398, pages 2973, 2974, 2975, 2976; 2 Dillon on Municipal Corporations (4 Ed.), section 675; Von Tobel v. City of Lewistown, 41 Mont. 226, 108 P. 910, 137 A. S. R. 737; Vicksburg v. Marshall, 59 Miss. 563; Witherspoon v. Meridian, 69 Miss. 288, 13 So. 843; Webb v. Dempolis, 95 Ala. 116, 13 So. 289, 21 L. R. A. 62, 44 L. R. A. 407; Mobile v. Sullivan Timber Co., 129 F. 298, 63 C. C. A. 412; Philadelphia Mfg. & Tr. Co. v. Omaha, 63 Neb. 280, 93 Am. St. Rep. 412, 88 N.W. 523; Simplot v. Chicago M. & S. Ry. Co., 5 McCrary, 158, 16 F. 350; Ralston v. Weston, 46 W.Va. 544, 76 Am. St. Rep. 834, 33 S.W. 326.

The doctrine here stated is well supported by many well considered cases, from which we cite the following: City of Big Rapids v. Comstock, 65 Mich. 78, 31 N.W. 811; Peoria v. Johnson, 56 Ill. 45; Lee v. Mound Station, 118 Ill. 304, 8 N.E. 759; Carlinville v. Castle, 177 Ill. 105, 69 Am. St. Rep. 212, 52 N.E. 383; Jordan v. City of Chenoa, 166 Ill. 530, 47 N.E. 531; Simplot v. Dubuque, 49 Iowa 630; Paine Lumber Co. v. Oshkosh, 89 Wis. 449, 61 N.W. 1108. Why should a municipal corporation which has led a citizen into error and caused him to expend large sums of money in the erection of permanent improvements upon a portion of the highway, after twenty years' occupancy, be permitted to destroy the improvements without compensation, simply to assert a legal right? A sense of justice common to all civilized people revolts at such a rule of legalized wrong.

The court will perceive that our complaint of the chancellor's decree is the limitation of the time fixed by the decree of the city's estoppel. We maintain that our title to the narrow strip of land in question should be confirmed and quieted perpetually. As was done by our court in the case of Vicksburg v. Marshall, supra, and in the other cases cited in support of the statement in Volume 10 R. C. L. supra.

We respectfully submit that the chancellor's decree should be affirmed on direct appeal and reversed on cross-appeal and final decree...