Erwin v. Mississippi State Highway Commission

• Citation: 58 So.2d 52,213 Miss. 885
• Decision Date: 14 April 1952
• Docket Number: No. 38398,38398
• Parties: ERWIN v. MISSISSIPPI STATE HIGHWAY COMMISSION.
• Court: Mississippi Supreme Court

Page 52

58 So.2d 52

213 Miss. 885

ERWIN v. MISSISSIPPI STATE HIGHWAY COMMISSION.

No. 38398.

Supreme Court of Mississippi.

April 14, 1952.

Broach & Ethridge and Lyle V. Corey, all of Meridian, for appellant.

Dunn & Singley, Meridian, for appellee.

ETHRIDGE, Justice.

The principal question involved on this appeal is whether the chancery court has jurisdiction to test the issue of public necessity by enjoining the State Highway Commission from prosecuting an eminent domain suit in the county court, in the absence of exceptional circumstances characterized by fraud or abuse of discretion.

On April 28, 1951, appellant, J. C. Erwin, filed a bill of complaint in the Chancery Court of Lauderdale County against the Mississippi State Highway Commission, appellee. This original bill, and the amended and supplemental bill, involved about three acres of lands lying at the intersection of U. S. Highway 45 and the new route of U. S. Highway 80 on the south side of the City of Meridian. For convenience and clarity, this land is designated in the briefs and in this opinion as consisting of five parcels, designated as Parcels I, II, III, IV, and V.

The original bill alleged that complainant was the owner of all five parcels; that from 1948 to 1950, defendant had unlawfully taken possession of Parcels I and II and had constructed a permanent highway on them, U. S. Highway 80; that defendant had made no attempt to condemn Parcels I and II, and that the taking violated Section 17, Mississippi Constitution; that complainant recognized the 'probable need' for the two parcels and asked the court to grant complainant 'due compensation for the property rights taken'; that defendant's trespass on Parcels I and II was a continuing one, and complainant could only obtain adequate compensation at law by a multiplicity of suits; and that, therefore, complainant had no adequate remedy at law. The original bill further charged 'that the defendant contemplates taking the remainder of complainant's property', Parcels III, IV, and V; that 'complainant anticipates further similar action by the defendant with reference to the remainder of such property'; that there is no public necessity for the taking of any additional property; and the bill sought to enjoin the commission from trespassing upon Parcels III, IV and V or from taking any of complainant's property without due compensation first being made.

Process under the original bill was served upon the Commission on April 30. On June 11 the Commission, which had not yet filed an answer to the bill in chancery, filed a petition in the County Court of Lauderdale County seeking to condemn rights of way over Parcels I, III, and IV. The petition averred that the Commission had been unable to agree with Erwin on a price for those parcels and prayed that at a hearing a jury fix the value of Parcels I, III, and IV, so that petitioner could enter upon the land and appropriate it for public use. Attached to the petition was a certified copy of an order of the Commission of August 22, 1950, adjudicating that it was 'necessary to take for public use' that property. Two days after the eminent domain proceeding was filed by the Commission in the county court, the Commission filed on June 13 in the present chancery court action a motion to stay the chancery proceedings until such time as the eminent domain proceedings could be determined. No action was taken on that motion.

On July 18 appellant Erwin filed in the chancery court an 'amended and supplemental bill of complaint'. The bill contained in part substantially the same charges as were in the original bill: That Erwin owned all of the parcels, that defendant had unlawfully taken possession of Parcels I and II, which was probably necessary, and that complainant was entitled to damages for such taking. The amended bill further charged that since the filing of the original bill the defendant had instituted in the county court an eminent domain proceeding seeking to condemn Parcels I, III, and IV; that there was 'no present public necessity' for the taking of Parcels III and IV, nor of Parcel V, although it was conceded that there was necessity for Parcel I. The bill then charged: 'That the defendant admittedly has no immediate use for the aforesaid Parcels 3 and 4, but is seeking condemnation thereof with the view of holding the same until some distant date in the future, then to be used, if at all, as the site of a so-called 'cloverleaf' at the junction of the aforesaid New U. S. Highway #80 and U. S. Highway #45. That the defendant has advised this complainant that the plans for the construction of such a 'cloverleaf' are contingent upon sufficient funds being accumulated for that purpose out of the 'Pay-as-you-go' highway construction program now in effect in the State of Mississippi, and that the time for constructing such a 'cloverleaf', if at all, is most indefinite. * * * That such power does not include the power of the right to take private property in the hope of putting it to public use at some indefinite and uncertain date in the future, if ever, and thus depriving the owner of such property from the use and enjoyment thereof during a period of years when no public use is being made of such property. That the aforesaid Parcels Nos. 3 and 4, and especially Parcel No. 3, constitute a very desirable business property which, because of the location at the junction of the aforesaid highways has a great potential earning capacity. That if the defendant be permitted to take said property at this time and to hold the same in idleness over a period of several years, the loss in earnings from said property during such period could easily exceed any amount which might be considered as representing a present reasonable value for said property. That any public necessity which might exist for the building of such a 'cloverleaf' is grossly insufficient to justify the taking of such valuable property several years in advance of the construction of such 'cloverleaf', thus depriving the owner thereof of the use, earnings and enjoyment of such property during such period of time. That the defendant should be enjoined by this Court from abusing its power of condemnation in any such manner.'

The amended bill further charged that the Commission was wrongfully claiming ownership of Parcels II and V. Complainant deraigned his title thereto, and charged that defendant was claiming through tax sales to the State and the City, a patent from the State to the City, and a deed from the City to appellee. Complainant, therefore, sought to enjoin defendant from proceeding with the eminent domain case pending disposition of the chancery action, on the ground that it was begun after the chancery suit, involved some of the same issues, and complainant averred that this was necessary because he had no adequate remedy at law, and in order to prevent a multiplicity of suits.

The amended bill further prayed for a preliminary injunction pending the hearing. The chancery court denied the preliminary injunction against the prosecution of the eminent domain proceedings, on the ground of want of jurisdiction to try the question of necessity. An interlocutory appeal was allowed to this Court by order of the chancery court dated August 1, 1951.

Subsequently, appellant Erwin obtained from a Judge of this Court, on August 24, 1951, a preliminary injunction restraining appellee, Commission, from proceeding further with the condemnation proceedings pending the determination by this Court of the interlocutory appeal to this Court from the order of the chancery court denying the requested preliminary injunction.

Appellee Commission moved here to dismiss the appeal because it as premature, being an appeal from the trial court's refusal to issue a preliminary injunction, but the motion was overruled on the ground that the appeal involved also the question of whether the chancery court had jurisdiction.

Appellant contends that the chancery court was the first court to acquire jurisdiction of the parties and the subject matter under the original bill, and that the rule should be applied that the court of concurrent jurisdiction which first takes cognizance of a controversy obtains exclusive jurisdiction; and that the chancery court, having once acquired jurisdiction of this particular controversy, should proceed to adjudicate all issues involved, whether equitable in their nature or not.

However, the original bill of complaint states no cause of action for equity jurisdiction. It sought compensation for appellee taking Parcels I and II and admitted the public use and 'probable' necessity for that taking. There is not involved here repeated, individual trespasses by appellee, as apellant argues. In fact, appellant only sought 'due compensation for the property rights taken'. He did not ask for damages for trespasses on the land. Louisville, N. and T. R. R. Co. v. Dickson, 1885, 63 Miss. 380; Miss. Power Co. v. Ballard, 1933, 166 Miss. 631, 146 So. 874. On the contrary, the bill avers that appellee has taken Parcels I and II and has constructed a paved highway on them without compensating him. For this taking, appellant has a plain and adequate remedy at law in a suit for compensation for the taking of Parcels I and II. Moreover, even if he could seek damages alone in equity, that would still not be any basis for the requested injunction as to the remaining parcels.

The original bill further charged that 'the defendant contemplates taking the remainder of complainant's property' and that 'complainant anticipates further similar action by the defendant with reference to the remainder of such property.' So the bill further sought to enjoin these contemplated and anticipated takings of Parcels III, IV, and V, or alternatively, to enjoin appellee from any future taking of property of appellant without due compensation first being made. But these averments do not comply with the...