City of Jackson v. Wright

• Citation: 151 Miss. 829,119 So. 315
• Decision Date: 17 December 1928
• Docket Number: 27441
• Court: United States State Supreme Court of Mississippi
• Parties: CITY OF JACKSON v. WRIGHT. [*]

119 So. 315

151 Miss. 829

CITY OF JACKSON v. WRIGHT. ^[*]

No. 27441

Supreme Court of Mississippi

December 17, 1928

Division B

APPEAL from circuit court of Hinds county, First district, HON. W H. POTTER, Judge.

Action by Ray Wright against the city of Jackson. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

Morse & Bryan, for appellant.

Cited. Poythress case, 46 So. 139; Cram v. City of Laconia, 71 N.H. 41, 51 A. 635, 57 L. R. A. 282; A. & V. R. Co. et al. v. Turner, 52 So. 261; City of Jackson et al. v Welch et al., 101 So. 361; Town of Wesson v. Swinney, 110 So. 669; Scrutchfield v. Ry. Co., 88 Pa. 1048, 9 L. R. A. (N. S.) 496; 4 McQuillin on Municipal Corporations, 273.

Instruction No. 4 granted for the plaintiff is fatally erroneous and does not lay down for the guidance of the jury the correct rule for determining damages in this case even if the municipality should be liable.

The jury is told that if they believed that the plaintiff bought his property with view to and for the purpose of using the same as business property, and that he had not abandoned such purpose, the measure of damages to the property is the difference in the market value of same, as business property, immediately before and after the closing of Cohea street. In other words, they were told that they might convert the property of plaintiff into business property by simply believing from the evidence that he had bought it for the purpose of using it as such and had not abandoned such purpose. This is not and never has been the law in such cases. It imposed a burden upon the defendant that it could not overcome.

The courts of last resort in this country have uniformly held in such cases that the difference in the market value of the property immediately before the act complained of and immediately after, constitutes the measure, its market value being determined with reference to its reasonable uses. Such reasonable uses are for the jury to determine from the evidence. While perhaps it might be competent to show bona-fide intended uses of property, and its adaptability to such uses, yet there is a vast distinction between the admission of such facts in evidence and a direct, positive charge to the jury to consider particular property as being only of a particular kind. See 20 C. J. 727; Miss., etc., Boom Co. v. Patterson, 98 U.S. 403, 407, 25 L.Ed. 206; Isom v. Mississippi Central Ry. Co., 36 Miss. 300; Meridian v. Higgins, 33 So. 1; 13 R. C. L. 75.

Robertson & Campbell, for appellee.

In order for appellee to be such an abutting property owner as will entitle him to maintain this suit, it is only necessary that his property abut on the closed street, and it is not necessary that it abut upon the closed portion of the street. Poythress v. M. & O. R. R. Co., 46 So. 139; Hinds Co. v. Johnson, 133 Miss. 591, 98 So. 95.

In City of Jackson v. Welch et al., 101 So. 361, and Town of Wesson v. Swinney, 101 So. 669, the property in question not only did not abut upon the closed portion of the street, but did not even abut upon the street closed.

In A. & V. Railroad Company v. Turner, 52 So. 261, the property of Mrs. Turner did not abut upon the closed portion of the street, and, yet, she was allowed to maintain her action.

The principal case relied upon by counsel for appellant in support of their contention that these instructions did not announce the proper rule for the measure of damage, sustains our position. Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206; See, also, Railroad Co. v. Ryan, 8 So. 173; 20 C. J. 769, sec. 228; 10 R. C. L. 130, sec. 113; Alabama Power Co. v. Herzfeld, 114 So. 49, 216 Ala. 671.

Argued orally by Harry M. Bryan, for appellant, and Stokes V. Robertson, for appellee.

OPINION

ETHRIDGE, P.J.

J. Ray Wright, appellee here, plaintiff in the court below, sued the city for damage to property abutting on Cohea street, in the city of Jackson, caused by closing Cohea street between the eastern and western lines of the right of way of the Chicago, St. Louis & New Orleans Railroad Company; thus cutting off plaintiff's means of access from his property to East Cohea street, and to Mill street, which intersects Cohea just east of the right of way of the railroad. The property has a frontage on Cohea street of one hundred twenty-five feet, and runs thence south along the west line of lot twenty-one of the Compromise survey sixty feet, thence east to the east line of lot 22, thence north along the east line of said lot 22, to the point of beginning.

It appears from the record that the city of Jackson, on or about the 19th day of November, 1923, passed an order vacating the street at said point, but undertaking to reserve in the city the fee in the street, should it thereafter decide to reopen the street.

It is further alleged that the grade of said street was laid above the surrounding property, so as to conform to the raise in the roadbed and tracks of the said railroad, made in pursuance of an order of the city requiring the railroad to elevate its tracks through certain parts of the city of Jackson, and to provide underpasses at particular streets, and crossing at other main streets, and vacating other streets across the railroad right of way.

It was alleged that the property, prior to said act by the city, was valued at four thousand dollars, which value was decreased thereby to the extent of two thousand dollars.

It was contended by the city that there was a street or avenue, called Railroad avenue, lying between the right of way of the railroad company and the plaintiff's property, and that by reason thereof the plaintiff was not an abutting owner of property on the street where it was closed, but that the intervening streets, and other streets, enabled the plaintiff to pass to Fortification street on the north, and to Monument street on the south, through which streets he could reach Mill street and other streets in the city. It appears that Mill street is an improved street from Capitol street north through the city, and especially to Fortification street; and it is contended plaintiff had reasonable access to said street, and to other streets in the city, without undue inconvenience.

It appears from the map of the Compromise survey introduced in evidence, that there was a strip marked thereon called "Railroad avenue," apparently about twenty-five feet wide, running both north and south of Cohea street; but the plaintiff testified that he knew nothing of any such street; that while it appeared on the map, it did not exist in reality; that there had been some wagonway along the east side of his property; that it had been filled in and obstructed, and was not open as a passageway. Some of the witnesses testified that there was a kind of a passageway leading north and south, but it does not...