Dickson v. Town of Centerville

• Decision Date: 19 May 1930
• Docket Number: 28716
• Citation: 128 So. 332,157 Miss. 490
• Court: Mississippi Supreme Court
• Parties: DICKSON et al. v. TOWN OF CENTERVILLE

128 So. 332

157 Miss. 490

DICKSON et al. v. TOWN OF CENTERVILLE

No. 28716

Supreme Court of Mississippi, Division B

May 19, 1930

(Division B.)

1. CERTIORARI. On certiorari to circuit court from inferior tribunal, it is improper to take issue on allegations of petition for certiorari; circuit court, on granting certiorari, should try case on record certified from inferior tribunal; one who has no interest in controversy or record to be presented has no right to certiorari.

On certiorari from an inferior tribunal to the circuit court, it is improper to take issue upon the allegations of the petition for certiorari. The writ having been granted, the case should be tried in the circuit court upon the record certified to it from the inferior tribunal, but a party has no right to a certiorari who has no interest in the controversy or record, to be presented.

2. MUNICIPAL CORPORATIONS. Property owners could not complain of closing of street which intersects street abutting on their property by which they had adequate access.

Owners of property abutting on a street or highway by which they have adequate access to their property, which access is not destroyed by closing another street intersecting the first street or highway, cannot complain of the closing of such other street or the abandonment thereof, unless they have special easement in the use of such street for access purposes.

3. MUNICIPAL CORPORATIONS. Order of mayor and aldermen closing street on petition of property owner stating that he was only owner of abutting property must be treated as correct on certiorari.

Where a mayor and board of aldermen have before them a petition or letter by an abutting property owner stating that such abutting property owner is the only abutting property owner upon such street, they have jurisdiction of the subject-matter, and their order closing the street upon such petition must be treated as correct upon certiorari such order being equivalent to a finding of fact that such statement is true.

HON. R L. CORBAN, Judge.

APPEAL from circuit court of Wilkinson county, HON. R. L. CORBAN Judge.

Petition by W. A. Dickson and another for writ of certiorari to review the action of the mayor and board of aldermen of the town of Centreville in vacating a street. From a judgment of the circuit court dismissing the certiorari proceeding petitioners appeal. Affirmed.

Judgment affirmed.

D. C. Bramlette, of Woodville, for appellants.

It was reversible error for the court to try this case on a motion to quash the writ of certiorari which motion was nothing more than a denial of the allegations of the petition for the writ of certiorari.

The entire authority of the circuit court was to proceed with the trial on the record made in the lower tribunal.

Board of Supervisors of Forrest County et al. v. Melton et al., 123 Miss. 615; Loomis v. The Commercial Bank of Columbus, 4 Howard, 660, 678, 679.

Jones & Stockett, of Woodville, for appellee.

It is axiomatic that a litigant must have an interest in the res; must be possessed with a legal right, in law, or an equitable right in equity before he can invoke the power of the court.

Newell v. Fisher, 24 Miss. 392; St. Paul Fire, etc., v. W. H. Daniel, etc., 121 Miss. 745, 83 So. 807; Furness, etc., v. Yanz-tsze, etc., 242 U.S. 430, 61 Law Ed. 409; Erie Railroad Co. v. Kirkendall, 266 U.S. 185, 69 L.Ed. 236; McCreary v. Flinn, 63 Miss. 204; Deberry v. The President & Selectmen of Holly Springs, 35 Miss. 385.

In order for a landowner to have a just complaint against the abandonment for closing of an abutting street, he must have a special easement in the use of the street in connection with his property for access purposes; that is he must be specially damaged in connection with an outlet and inlet to his property, otherwise he has no more interest in the street than that enjoyed by the general public for travel, and cannot prevent its closing by the owners or the public authorities.

Jackson v. Welch, 136 Miss. 223, 101 So. 361; Lexington v. Sargeant, 1 So. 903, 64 Miss. 621.

OPINION

Ethridge, P. J.

W. A Dickson and Miss Lucy W. Dickson, appellants here, filed a petition in the circuit court of Wilkinson county for a writ of certiorari, alleging that they were abutting property owners on Caroline street in the town of Centreville, and that they had their property surveyed and divided into squares and offered to the public for sale, and that through said property there was laid out a continuation of said Caroline street. They then set out in their petition the fact that the mayor and board of aldermen had attempted to close said street, but alleged that the proceeding was void, under the statute, because no notice was given to the abutting property owners that damages would be assessed to them for injuries resulting from the...