Gwin v. City of Greenwood

• Decision Date: 20 February 1928
• Docket Number: 26768
• Citation: 150 Miss. 656,115 So. 890
• Court: Mississippi Supreme Court
• Parties: GWIN et al. v. CITY OF GREENWOOD. [*]

115 So. 890

150 Miss. 656

GWIN et al. v. CITY OF GREENWOOD. ^[*]

No. 26768

Supreme Court of Mississippi

February 20, 1928

Suggestion of Error Overruled April 2, 1928

(En Banc.)

1 DEDICATION. Owner may cut rural tract into lots, with streets, avenues, and alleys, and reserve right to operate public utilities; generally, one dividing land, and dedicating streets, avenues, and alleys, may prescribe restrictions and limitation on use thereof.

It is permissible for an owner of land in a rural section to cut same up into lots, with streets, avenues, and alleys, and reserve to himself the right to operate utilities for furnishing water, lights, sewerage, and similar things. In general, the dedicator may prescribe restrictions and limitations on the use of the land embraced in such avenues, streets, and alleys.

2. EMINENT DOMAIN. Municipal corporations. Municipality, taking in platted rural section, acquires streets, alleys, and avenues, burdened with reservations contained in maps and deeds; municipality, taking in platted territory, may condemn rights reserved in streets and alleys by paying just compensation (Constitution 1890, section 17).

Where an owner of property in a rural section has mapped, platted and sold lots therein as indicated in the preceding syllabus and, afterwards, a municipality extends its limits so as to take in such platted rural section, it will acquire such streets, alleys, and avenues, cum onere, burdened with the reservations contained in the maps, deeds, etc.; but it may proceed to condemn and acquire same by paying just compensation therefor under section 17 of the Constitution 1890.

HON HARVEY McGEHEE, Chancellor.

Appeal from chancery court of Leflore county. HON. HARVEY MCGEHEE, Chancellor.

Suit by the city of Greenwood against S. L. Gwin and others, for an injunction. From a decree for complainant, defendants appeal. Reversed and remanded.

Judgment reversed and remanded.

Chapman, Moody & Johnson, S. L. Gwin and S. Rosenthal, for appellants.

If, on the date of the annexation ordinance, the town of North Greenwood was an existing municipality, then that ordinance, in so far as it attempts to annex any part of that municipality, is void for the reason that all, or any part, of the territory of an existing municipality cannot be included. The jurisdiction of the subject-matter is wanting. The annexation ordinance in so far as it attempts to annex unincorporated territory is void for the reason that all unincorporated territory embraced in the ordinance was not adjacent to the city of Greenwood. That is, no part of it was adjacent. The entire corporate territory of North Greenwood lies between the unincorporated territory and the city of Greenwood. Sections 5797 and 5809, Hemingway's Code. Candsi v. Seminary, 95 Miss. 315, 48 So. 908; Fabric Hose Company v. Vicksburg, 77 So. 911. If it be conceded that the ordinance is valid, in so far as the annexation is concerned, the question still arises, whose rights, if any, did the city acquire and in and to what property did it acquire such rights?

The offer to dedicate is evidenced by the map of the boulevard addition to the town of North Greenwood. To ascertain what was offered, and the extent of it, reference must be made to it and not elsewhere. The map discloses that: "A continuous strip of land twenty-four feet in width along the center of Grand boulevard and Park avenue, embracing all parkways and the land lying between the lines thereof extended at street intersections, is reserved the entire length by the said E. R. McShane, W. T. Loggins and S. L. Gwin, herein designated as the owners."

This continuous strip of land, twenty-four feet in width, which by reference to the map, is accurately described, is reserved by the owners from what? From the offer to dedicate, of course. But, if it be preferred to interpret the map as a dedication, then this strip is reserved by the then owners from the dedication. In other words, the then owners reserved unto themselves from the offer or, if preferred, from the dedication, this strip of land. In short they did not convey or offer to convey, or grant an easement or offer to grant an easement over this particular strip of land. If not, then in whom, but the then owners, did the unqualified fee-simple title to this strip of land remain? This, it is submitted, is too evident to need further argument for the reason that it is not a right in the land, but the land itself that was reserved. They had this title to begin with and it is only by their act that it can be claimed that that title was divested.

The then owners reserved unto themselves this particular strip of land, "for shade trees and ornamental purposes, for car tracks, for water, sewer, gas mains and pipes, telephone and electric light poles and wires and such other utilities public or private, as the said owners may at any time deem proper." Said strip of land was not set apart for such uses, but on the other hand was reserved unto the owners for such uses. As the owners reserved unto themselves the land, who, other than they, could complain because they did not devote it to the particular uses named, or because they might devote it to other uses. Whether use to which it might or might not be devoted is one which would affect the rights of other persons depends on the character of the particular use. The ownership of the land includes the right of user, and that right is more universal than the particular use. The question, presented and discussed, is not a new question. The authorities, which we have been able to find, and we have found none to the contrary, recognize and adjudicate the right of the owner to reserve a strip of land down the center or along the side of a street for his uses, even though the street itself is expressly dedicated. 18 C. J. 70-71, sec. 63; French v. New Orleans, etc., 2 La. Ann. 80; LeNeve v. Mile End Old Town, 92 E. C. S. 1054, 120 Reprint 392; Bartley v. Peoria, etc., 100 N.E. 494.

The effect of the decree is to deprive the appellants of the water mains and sewers, which, at a great expense, were constructed prior to the sale of any of the lots shown on the map. The subdivision, evidenced by the map, was designed and laid out outside of and not connected with a municipality--as an exclusive residential district. To make it suitable for that purpose, streets were laid out and graded, sewers and catch basins for sanitary and drainage purposes were constructed, and water and water mains provided for, for all of which the then owners expended in excess of one hundred thousand dollars. The proposed exclusive residential district, evidenced by this map, was, as stated, not in or connected with a municipality. If so, then by whom would these improvements be made, or, when made, maintained? The map was not made and lots sold and thereafter the improvements made. To the contrary, the latter preceded the former. Who, other than the then owners and those who purchased lots, were benefited by, and interested in the making, maintenance and extension, when necessary, of the improvements? As the improvements, etc., were necessary why could not the then owners agree, with each purchaser of a lot or lots, that the actual possession of the streets and the improvements thereon, should be delivered to the purchasers jointly and maintained and extended by them? If such an agreement were made, could the county, the town of North Greenwood, or "the general public" complain? Only those, then interested, would be the then owners on the one side and the purchasers of lots on the other. They, by virtue of such a contract, only would have rights and corresponding obligations. If such a contract could be legally made, then why could not the then owners agree with each purchaser of a lot or lots that they, the then owners, should remain in actual possession and maintain and extend the improvements. This was what was actually done. The record does not present such a case or even a case where the streets, prior to the contract, were dedicated as public highways. An agreement with reference to streets, dedicated as public highways to the public, was studiously avoided. It is conceded that the city of Greenwood could lawfully extend its corporate limits, and, if it had jurisdiction to do so and did take in this particular land, it is conceded that it could lawfully condemn the streets shown on the map, as public highways, and, when this was done, the exclusive privileges growing out of the contract between the then owners and purchasers would cease. But, in so doing, compensation must be first made to the appellants for the damages they sustained thereby, and the procedure, prescribed by law for that purpose, must be followed. The procedure, as a consequence of which the decree appealed from resulted, is not such a procedure. See 18 C. J. 96, n. 19.

R. C. McBee, Alfred Stoner and A. H. Bell, for appellee.

On March 10, 1910, W. T. Loggins, S. L. Gwin and E. R. McShane were the owners of the lands lying in the Boulevard addition. These lands were platted and subdivided and a map thereof filed in the office of the chancery clerk, in accordance with section 3394, Hemingway's Code of 1927. The statutory scheme set forth in the Code section immediately following that just quoted described just what is to be done by the proprietor in order to make his map an official map and in order to comply with the statute to make his addition official. The statutory scheme does not stop there but provides that a penalty be imposed on any person who shall sell lots in any such addition "before the plat or map thereof shall be recorded." A further Code section provides how the owner of the land may have his recorded map or plat vacated, requiring him to file...