Covington County v. Collins

• Decision Date: 09 March 1908
• Docket Number: 13,158
• Citation: 92 Miss. 330,45 So. 854
• Court: Mississippi Supreme Court
• Parties: COVINGTON COUNTY v. LORIN COLLINS

45 So. 854

92 Miss. 330

COVINGTON COUNTY v. LORIN COLLINS

No. 13,158

Supreme Court of Mississippi

March 9, 1908

FROM the chancery court of Covington county, HON. THADDEUS A WOOD, Chancellor.

Covington County, appellant, was complainant in the court below Collins, appellee, was defendant there. From a decree dissolving an injunction and dismissing the bill complainant appealed to the supreme court.

The county filed its bill in chancery against Collins and "all other persons who are running or attempting to run a traction engine on the public county highways," to enjoin them from using a traction engine on the public road in the county in violation of an order passed by the board of supervisors declaring the use of the county highways by traction engines to be improper and unlawful, and prohibiting such use under penalty. The bill, in addition to reciting the passage of such order, further set forth that the appellee Collins, was operating a traction engine upon the county highways to the detriment of the roads, which were thereby torn up and put out of repair, and of travel, by frightening teams and obstructing persons in general on the roads. The bill further charged, that because of the appearance of the engine, operated by steam, accompanied with great noise, and of the danger from steam, smoke and sparks emitted as it passed habitations on the way, it was a nuisance; and that may citizens of the county had complained of its use of the county highways, but that the appellee, Collins, though requested by the proper representative of the county had disregarded the orders of its board of supervisors and declined to cease operating the engine.

The appellee, Collins, being temporarily enjoined from further use of the engine on the highways of the county, made answer to the bill denying the right of the county to restrain him or any other person from properly using the highways for the operation of the traction engine, that any danger to the public or harm to the road would result therefrom, and that the public in general were hindered in travelling on the highways because of the operation of the engine. The answer admitted that at times steam and smoke escaped from the engine, and that there was some noise in its operation; and further, that a few persons in the vicinity of Mount Olive requested defendant not to run his traction engine on said road as it frightened them and their horses and mules, but averred that said persons represented a very small proportion of those who used said road constantly in the usual course of business and pleasure. The answer charged that many of the citizens of the county, living around and in the town of Mount Olive, who were in the habit of passing along the road every day had voluntarily signed a petition to the board of supervisors to allow appellee to continue the use of the county roads in the operation of his engine, and denied that the use of the engine constituted a nuisance as charged in the bill.

The cause was heard on motion to dissolve the injunction and on affidavits; the substance of the affidavit of the appellee Collins, is stated in the opinion of the court.

Decree reversed and remanded.

R. L. & E. L. Dent, for appellant.

Code 1906, § 307, vests in the boards of supervisors of the various counties of our state full jurisdiction over roads, highways, ferries and bridges. And Code 1906, § 4397, authorizes the board of supervisors of any county to protect the highways and bridges thereon from any unusual or uncommon use where the same may be likely to injure or impair public traffic. The record discloses that the order of the board declaring the use of the county highways by traction engines to be a nuisance, was regularly passed, and hence is valid. Jefferson Co. v. Arrighi, 54 Miss. 668; Paxton v. Baum, 59 Miss. 531; Seal v. Donnelly, 60 Miss. 658; Ex parte Fritz, 86 Miss. 210, 38 So. 722.

If appellee used the highway occasionally, or if the passage of the traction engine were solely for the purpose of removing it once and for all time from one location to another, the proposition would be different. But appellee makes regular daily trips back and forth, often twice a day, with his engine and train of wagons to the constant hindrance of all other kinds of traffic upon the road.

As the board carefully considered the matter before passing the order, and as the board had full jurisdiction of the matter at the time, its action must be considered as res adjudicata. Appellee cannot collaterally attack the order. Rotenberry v. Yalobusha Co., 67 Miss. 470, 7 So. 211; Monroe Co. v. Strong, 78 Miss. 565, 29 So. 530.

Highways are created for the usual and ordinanry use and travel of the general public in a reasonable and ordinanry manner; and if this traction engine should be allowed to be operated upon the public highway, it would greatly affect the public passage upon it; and appellee's use of it would be an encroachment on the general public's right of travel.

To assume that the operation of traction engines upon the common highways of the county is now a reasonable use of the highways, is to assume that the highways will finally be legally taken for use almost solely by dummy lines and tramways. Code 1906, § 4412, requiring vehicles to keep to the right hand side in passing other vehicles, in public highways, has no reference to what an engineer of a locomotive must do in passing and repassing other parties; and therefore it was never contemplated that a heavy steam engine should be allowed to be run upon the public roads of the county. Commonwealth v. Allen, 16 L. R. A., 148.

R. V. Fletcher, attorney-general, on the same side.

Code 1906, § 4397, authorizes the board of supervisors to protect the public roads from any unusual or uncommon use where the same is likely to impair the usefulness of the roads as a public highway. It is clear from this statute that the board in this case had the authority to determine that a train of cars, run habitually over a highway, is such an uncommon use as would, if continued, impair the usefulness of the highway.

Appellee did not use the traction engine upon the highway occasionally or at long intervals; but, instead, he made regular daily trips on the highway with it. He practically changed the highway from its ordinary use into a tramway over which his train of wagons were constantly operated. The evidence shows that sometimes he made as many as two round trips a day with the engine, and it is undisputed that the horses of travellers, farmers and others, were oftentimes frightened in passing it on the road; drivers of terms were often forced to leave the narrow road in order to pass the unwieldy piece of machinery; and sometimes the engine would get out of repair and so obstruct the road as to render travel for the time impossible. Highways are for the use of teams and pedestrians, not for the passage of trains propelled by steam. The use to which appellee put the highway was improper. Commonwealth v. Allen, 16 L. R. A., 148.

It may be said by appellee that there is evidence to show that the engine was not a nuisance. If this be granted, the utmost that can be said is that the evidence is conflicting, and that the chancellor therefore should not have overthrown the order of the board of supervisors. This is not a case where the chancellor's finding of fact is at all important, since the evidence shows that the board of supervisors did not act arbitrarily but had some color of right.

T. S. Howell, for appellee.

It must be admitted that a traction engine which is operated upon a public road tends to frighten some horses and other beasts of burden, especially at first sight. But so do bicycles, electric cars, automobiles and eight-wheeled lumber wagons. Because some animals may be frightened by the passage of a traction engine along the highway should not justify a board of supervisors in passing an order absolutely prohibiting its use upon the highway. New inventions and new means of locomotion are generally accepted slowly by those who do not keep abreast with the march of civilization.

It will be noted that there are no bridges on the road over which the engine and wagons pass; and the evidence of the road overseer of the road in question is that the road was improved by the rolling of the engine over it.

A highway is intended for public use, and a person riding or driving a horse has no rights on the highway superior to a person riding a bicycle. 28 L. R. A., 608; 58 Minn. 555; 60 N.W. 545. The same rule applies as to automobiles and other formerly unusual vehicles. Taylor v. Union Traction Co., 184 Pa. 465, 47 L. R. A., 289; Christy v. Elliott, 216 Ill. 31, 1 L. R. A. (N. S.), 215; Indiana Springs Co. v. Brown, 1 L. R.A. (N. S.), 215.

A traction engine in not per sea nuisance Whether it may be classed as a nuisance is dependent upon how it is operated. 54 Miss. 540; 1 Thompson on Neg., § 1312; Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep., 522.

The county board of supervisors evidently...