City of Wiggins v. Breazeale, 53566

• Decision Date: 29 September 1982
• Docket Number: No. 53566,53566
• Citation: 422 So.2d 270
• Parties: CITY OF WIGGINS, Mississippi v. O.E. BREAZEALE.
• Court: Mississippi Supreme Court

Page 270

422 So.2d 270

CITY OF WIGGINS, Mississippi v. O.E. BREAZEALE.

No. 53566.

Supreme Court of Mississippi.

Sept. 29, 1982.

Rehearing Denied Dec. 15, 1982.

Donald M. Waits, Wiggins, for appellant.

Holleman & Krogstad, Michael B. Holleman, Gulfport, for appellee.

En banc.

ROY NOBLE LEE, Justice, for the court.

The Chancery Court of Stone County, Honorable Jason H. Floyd, Jr., presiding, overruled a general demurrer and denied certain affirmative defenses, interposed by the City of Wiggins, to a petition by O.E. Breazeale to vacate a part of certain streets appearing in a municipal plat, and then granted an interlocutory appeal from that decree.

The sole question considered by this Court on the appeal is whether or not the chancery court had jurisdiction of the subject matter in litigation and should have sustained the demurrer. Stated differently, we consider whether or not municipalities or counties have exclusive jurisdiction to close and vacate streets and alleys, or has concurrent jurisdiction with the chancery court for that purpose.

The appellee charged in the petition to vacate a portion of Church Street and Second Avenue that the parts of said streets involved had never been opened or used as a street, was dormant land, and of no value to anyone except the petitioner. Appellee prayed that the court render a decree vacating said parts of those streets and cancelling rights and interests of other persons and the public in same. ¹

The appellant contends that municipalities have the exclusive right and power to close and vacate streets, and relies upon Mississippi Code Annotated Sec. 21-37-7 (1972), which follows:

The governing authorities of municipalities shall have the power to close and vacate any street or alley, or any portion thereof. No street or alley or any portion thereof shall be closed or vacated, however, except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby.

The statute under which appellee proceeded is Mississippi Code Annotated Sec. 19-27-31 (1972), which provides:

If the owner of any land which shall have been laid off, mapped, or platted as a city, town or village, or addition thereto, or subdivision thereof, or other platted area, whether inside or outside a municipality, shall be desirous of altering or vacating such map or plat, or any part thereof, he may, under oath, petition the chancery court for relief in the premises, setting forth the particular circumstances of the case and giving an accurate description of the property, the map or plat of which is to be vacated, or altered, and the names of the persons to be adversely affected thereby, or directly interested therein. The parties so named shall be made defendants thereto, and publication summons shall be made one time in a newspaper published, or having a general circulation, in the county where the land is situated, and which publication shall clearly state the objects and purposes of the petition.

At any time after the expiration of five days from said publication and the service of process upon the named defendants, the cause or proceeding shall be triable, and the court in term time or the chancellor in vacation may hear the petition and all objections from any person thereto, and may decree according to the merits of the case. However, where all adversely affected or directly interested persons join in said petition, the same may be finally heard and determined by the court or chancellor at any time. If the decree vacate, in whole or in part, or alter the map or plat, it shall be recorded as a deed, and a memorandum thereof noted on the record of the map or plat.

Section 19-27-31 authorizes altering or vacating a map or plat, or any part thereof, under the conditions stated therein, and does not conflict with or encroach upon Section 21-37-7. Where the part of a plat or subdivision to be altered involves a street, alley, or property dedicated to the public, the logical sense of the statute is that such areas have never been opened and used for those purposes. When the plat is altered or vacated, those areas, for all practical purposes, are expunged from the plat and it becomes a recorded plat with such street, alley or public property not included or appearing therein.

The statute requires that all persons adversely affected by, or directly interested in, a proposed alteration of the plat be made defendants with the right to appear, object and give reasons why the plat should not be altered or vacated. Persons affected include the municipality or county. Certainly, a municipality or county which had plans, or a need, for the unopened public property would appear and show that interest to the court. In such event, it is reasonable to assume that the court would deny alteration or vacation of the plat. See Hunter v. Des Moines, 144 Iowa 541, 123 N.W. 215 (1909); Sarvis v. Caster, 116 Iowa 707, 89 N.W. 84 (1902). ²

Section 21-37-7 grants municipalities the power to close and vacate any street or alley, or any portion thereof, and requires payment of due compensation to abutting landowners. That power is necessary for a municipality to properly function in the area of designation, operation, and maintenance of streets. It does not conflict with the power granted to the chancery court by Section 19-27-31.

The case of Reinecke v. Reinecke, 105 Miss. 798, 63 So. 215 (1913), involved the alteration of a plat where errors had been made in the instrument. The case is not authority that Section 19-27-31 is for the only purpose of correcting and altering a plat where some error occurred in its preparation.

Almost one hundred years ago, the Iowa Supreme Court had a question before it, similar to that here, in Connor v. Iowa City, 66 Iowa 419, 23 N.W. 904 (1885). Two Iowa statutes are almost identical to the Mississippi statutes, and the Court held that a landowner was authorized to obtain vacation of a plat where the city council had the same power as conferred by the Mississippi statute (Section 21-37-7). That case involved the right of a plaintiff to vacate part of the plat of an addition to Iowa City. He claimed the right to vacate two blocks, and the streets and alleys through the same, and, by a written instrument executed, acknowledged, and recorded, he declared the same vacated. The defendant, by its street commissioner, proceeded to open up a street between said two blocks. By this action, the plaintiff demanded that the defendant be enjoined from interfering with the inclosure of the two blocks in common. After the defendant answered the petition, a trial was had, and a decree was entered perpetually enjoining the defendants as prayed in the petition. On appeal, the Court said:

It is true, the city council has the "power to lay off, open, widen, straighten, narrow, vacate, extend, establish, and light streets, alleys, public grounds, wharves, landing and market places, and to provide for the condemnation of such real estate as may be necessary for such purposes." (Code, Sec. 464;) but the plaintiff had express authority, conferred by statute, to vacate the plat, and having done so the city council had no authority to make an ex parte judicial determination that the plaintiff's acts were void. The order of the city council that the street should be opened, involves the question whether there was any street in existence to be opened. Before this order was made the vacation was filed and recorded, and the rights of the parties fixed, subject only to an inquiry in the courts whether or not the rights of others were injuriously affected by the vacation. Affirmed. [66 Iowa at 419, 422, 23 N.W. at 904, 905].

We have considered Barrett v. Pilgrim, 317 So.2d 382 (Miss.1975). There, a suit was instituted in the Chancery Court of Neshoba County by one landowner against another, both abutting a public road, seeking an injunction to prevent the latter from closing the road. The lower court closed it with certain limitations, and this Court held that the chancery court exceeded its authority. Barrett is distinguished from the case sub judice, since no plat was involved and the suit was not for the alteration of a plat and vacation of a street which had not been opened.

We are of the opinion that a municipality does not have exclusive authority to close and vacate streets and alleys, particularly in situations where they have never been opened, and that the chancery court has authority under Section 19-27-31 to alter and vacate maps or plats, or any part thereof, under facts and circumstances coming within the statute, resulting in vacation of the street or property affected, and that the lower court correctly overruled the demurrer.

We decline to address the questions raised by the pleas, affirm the judgment overruling the demurrer, and remand for trial on all questions.

AFFIRMED AND REMANDED.

PATTERSON, C.J., WALKER, P.J., and BROOM and BOWLING, JJ., concur.

HAWKINS and PRATHER, JJ., SUGG, P.J., and DAN M. LEE, J., dissent.

PRATHER, Justice, dissenting:

With deference, I respectfully dissent from the conclusion of the majority that the chancery court has concurrent jurisdiction with the governing authorities of municipalities to close municipal streets.

A fuller recital of the facts is necessary to reach all the conclusions of this dissent. Breazeale owned lands on all sides abutting parts of Church Street and Second Avenue in the City of Wiggins. Breazeale has twice made requests before the City Board of Wiggins to close such streets and was twice refused. The first request and refusal occurred on April 13, 1979. A second request resulted in an ordinance dated June 3, 1980, which also denied a closure of the street parts.

Breazeale chose not to appeal either board decision to the circuit court as permitted by Mississippi Code Annotated section 11-51-75 (1972), but instead filed a petition to vacate part of the streets...