City of Jackson v. Welch

• Decision Date: 22 September 1924
• Docket Number: 24110
• Court: Mississippi Supreme Court
• Parties: CITY OF JACKSON et al. v. WELCH et al

101 So. 361

136 Miss. 223

CITY OF JACKSON et al. v. WELCH et al

No. 24110

Supreme Court of Mississippi

September 22, 1924

Division A

1. MUNICIPAL CORPORATIONS. Abutting owners may not complain of closing of another street.

Owners of property abutting on certain street, from and by which they have adequate access to their property, which access is not destroyed by closing of another street intersecting first street and ending at such, property, cannot complain of closing of such other street.

2. MUNICIPAL CORPORATIONS. Abutting owner cannot complain of closing of street unless he has special easement for access purposes.

Abutting owner cannot complain of abandonment or closing of street unless he has special easement in use of such street in connection with his property for access purposes.

3 JUDGMENT. Judgment adjudicating ownership of land comprising street held res judicata in subsequent suit to prevent closing of street.

Judgment in action between city and private parties adjudicating title in land comprising certain street to be in such parties, held res judicata in subsequent action between same parties in which city sought to prevent closing of such street.

HON. V J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Suit by the Morrisons against city of Jackson, C. Welch and others in which the city of Jackson filed cross-bill against other defendants. Demurrer of defendants Welch and others to original complaint was sustained and the city of Jackson's bill was dismissed, and the city of Jackson appeals. Affirmed.

Decree affirmed.

H. Chalmers Alexander and J. H. Brumby, for appellant.

What is meant by abutting property? If the property of the Morrisons, wherein Elizabeth Morrison, a minor, has undivided interest, abuts on or is concerned in the user and welfare of Short street, then the learned court below incorrectly dismissed the bill. In the case of Congress street running southward from Fortification street down to the New Capitol property, where does Congress street stop in so far as the northern portion of the New Capitol grounds is concerned? Does not Congress street come on southward into the territory and area of High street (which runs east and west) and stop only at the sidewalk curb, bounding the northern portion of the Capitol grounds? Does the mere fact that we say that one must cross High street in coming southward along Congress street to reach the Capitol grounds, preclude the idea that in crossing, one is yet still also in the area of Congress street? If a decree went forth that High street should be closed, but North Congress street be left open would not the area of Congress street all the way up to the northern curb of the Capitol grounds yet remain open? Have not the Capitol grounds an interest, so to speak, in the keeping open of Congress street all the way to the very curb of the Capitol grounds?

Short street connects Capitol and Pearl streets. The Morrison property is on the southern side of Pearl street, and one standing at the eastern end of the property can look northward up Short street. Now, where is the southern end of Short street? Does Short street come merely southward until it touches the northern boundary of the eastward flowing Pearl street? Why say that the area where the two streets superimpose is exclusively the area of one street instead of the area of the other street? There are a score or more of streets coming into other streets but not going on further, but instead, making the union like the middle part or horizontal connecting part of the English capital letter "H," or like the section of the two parts of the capital letter "T." And one cannot say that the area where they impose is the area of one rather than the area of the other. Where the railroad track of the I. C. R. R. crosses the railroad track of the A. & V. R. R., can one stand there and say that this is property of the one railroad and not of the other? Remove one railroad track and the crossing disappears, but not the other railroad track. It remains. Likewise, remove Pearl street, for argument, obliterate it, or close it, but let Short street remain; and it certainly follows that one who walks along Short street should have the right while still in Short street to go right up to the curb of the Morrison property. The learned court below stated definitely that the Morrison property did not abut on Short street, hence that Elizabeth Morrison was not a necessary party to the proceedings had in the Welch suit wherein the court had adjudicated the non-existence of Short street, hence that she and her mother and brother had no interest and have no interest in law in either the closing or the keeping open of Short street. See Clinton v. Turner, 95 Miss. 597; Jackson v. Monroe County, 81 So. 788, 120 Miss. 125.

In conclusion it is our view that as the official records of Hinds county, bearing the antiquity of over thirty years with the legal presumption thereto pertaining, show that Short street has existed for many years; and as the sworn bill of complaint shows the Morrisons and especially the minor, Elizabeth Morrison, to own valuable real property injured by the closing of Short street; and as the court has never rendered any decision in any case pertaining to Short street or its existence or nonexistence, in which Elizabeth Morrison is a party; and as Elizabeth Morrison has done nothing to estop herself from the exercise of her right to a day in court and trial on the merits; the learned court below passed beyond its judicial authority in dismissing the bill of complaint without a hearing on the merits. And the fact that in another suit (the Welch suit) wherein the city of Jackson was made a party there was a hearing on the merits, and a decision that this street, platted on the city maps of over fifty years antiquity, referred to as a boundary in the recorded deed shown in many a musty old land deed record of the county, referred to in the establishment of the very lots in the city now held by appellees, is nevertheless yet held by the learned court below never to have existed, certainly cannot now, on the direct application of Elizabeth Morrison as an applicant for hearing in the very court in which she is a minor ward, preclude Elizabeth Morrison from the presentation of her rights and the hearing by the court of her prayer for redress. All proceedings in the Welch case were, as to her, res inter alios acta. This court will not hold that she has been decided against in court before she has ever gotten into court. Pugh v. Hoe, 27 Miss. 461; Pipscomb v. Postell, 38 Miss. 476, 77 Am. Dec. 651.

If the appellants have no rights, this should be decided upon the merits of their bill of complaint, and not upon the merits of another and prior suit with which they have no concern and of which, while it was pending, they were totally ignorant.

Green, Green, & Potter, also for appellant.

By section 5833, Hemingway's Code, it is declared: "To close and vacate any street, or alley, or any portion thereof.--But no street or alley or any portion thereof shall be closed or vacated except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby."

This section was discussed in Laurel v. Rowell, 84 Miss. 435; Poythress v. Railroad Company, 92 Miss. 638; Alabama & Vicksburg, etc., v. Turner, 95 Miss. 594. The Turner case was approved by the court in Fitzhugh v. Jackson, 97 So. 192. See, also, Polk v. Hattiesburg, 69 So. 676; Morris v. Black, 80 So. 338; Jackson v. Monroe County, 120 Miss. 125, 81 So. 788.

Short street extends up to the property line of complainant. There is an intersection at Pearl and Short, but Pearl street can no more destroy Short street than Short street can destroy Pearl street. There is an intersection just as completely as though Pearl street were closed in its entirety. The sole right of egress would be in Short street and so if Short street were closed, the sole right of egress would be in Pearl street. A corner is always more valuable than an interior lot and where, as here, the property stands at the head of the street access to the property over that street is of inestimable value. In addition, a driver of an automobile at street intersections must recognize the right of the public to come from both ways. Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Pearman v. Wiggins, 103 Miss. 4, 60 So. 1; Covington County v. Collins 45 So. 854; Shoemaker v. Coleman, 94 Miss. 619; Coleman v. Holden, 88 Miss. 798, 41 So. 374.

It thus appears that being situated with reference to this street precisely as is appellant, he was held to be such abutting owner as might maintain a bill to enjoin the obstruction thereof which is now being committed by appellees. The right to open a public street is laid down in Meridian v. Poole, 88 Miss. 115; Canton Warehouse Co. v. Potts, 69 Miss. 31.

It will thus be seen that the appellant had as much right to Short street terminating at their property line with a street intersection as did the appellee Potts in Franklin street, and though the obstruction was not strictly in front of her property, yet it was held that she had a right to file a bill and abate the nuisance because it was such: namely, the unlawful stopping of a public street. See, too, Sanford v. Meridian, 52 Miss. 390; Rowzee v. Pierce, 75 Miss. 856, Jones v. Jackson, 104 Miss. 449, 476; Light, etc., v. Montgomery, 85 Miss. 312; Kinnare v. Gregory, 55 Miss. 621; Caldwell v. George, 96 Miss. 485; Lexington v. Hoskins, 96 Miss. 167.

That which appellee in this case must sustain is the admitted fact that Short street is a street; that it lies, as averred, and so lying, is...