Harrison County Sup'rs of Harrison County v. Seal

• Court: Mississippi Supreme Court
• Writing for the Court: COOPER, J.
• Citation: Harrison County Sup'rs of Harrison County v. Seal, 5 So. 622, 66 Miss. 129 (Miss. 1889)
• Decision Date: 11 March 1889
• Parties: BOARD OF SUPERVISORS OF HARRISON COUNTY v. R. SEAL

5 So. 622

66 Miss. 129

BOARD OF SUPERVISORS OF HARRISON COUNTY v. R. SEAL

Supreme Court of Mississippi

March 11, 1889

FROM the chancery court of Harrison county, HON. S. EVANS Chancellor.

The facts are stated in the opinion of the court.

Decree is reversed and cause remanded.

W. G Evans, Jr., for appellants.

1. The chancery court had no jurisdiction. The complainant had a complete remedy at law. Code 1880, §§ 826, 830; 54 Miss. 259.

2. This proceeding on the part of complainant, obtaining the deed from Soria, paying taxes, and claiming to be in possession of the land in controversy, was a mere device to get a portion of Railroad street, a public highway that has been such for many years. To close it up now would be to deprive the public of the highway enjoyed for many years, and at the same time to shut in by a strip of land all the lots fronting on this street, which lots were sold by Tegarden, the original owner with reference to it. 1 How. (Miss.) 379; 39 Miss. 374; 48 Ib. 423; 50 Ib. 410; 52 Ib. 383; 55 Ib. 612.

W. P. &amp J. B. Harris, for appellee.

This case arises under the road law, code 1880, § 823. The county authorities assumed that the entire strip of land, a hundred and twenty feet wide, that was originally left for the Brandon railroad, was public property, whereas Seal claims that only thirty feet of the west side has been used as a public road, leaving a strip ninety feet wide, which he purchased from the heir of the original owner in 1879. He has claimed it since that time, and his vendors claimed it anterior to that date. This strip of ninety feet is not public property; it belongs to Seal, and he has exercised all acts of ownership. He was, therefore, entitled to notice of the proceedings to lay out the new road across it. Mills on Em. Domain, 95, 96 et seq. The statute requires notice, and that ends the case, so far as it has been adjudicated by the decree appealed from.

But the proof relied on to constitute this strip of ninety feet public property by dedication fails altogether. There was not at the date of the grants relied on as dedication any public, as a town or village, in existence to accept a dedication, and there is no dedication to the county.

In Tegarden v. McBean, 33 Miss. 283, it was held that an understanding or agreement by a neighborhood to have a neighborhood road, and arrangements between individuals creating easements by contracts, or covenants in deeds, do not create public highways.

This view is borne out by cases elsewhere. Clements v. West Troy, 16 Barb. (N. Y.) 251-283; Holmes v. Jersey City, 1 Beasley (N. J.) 299.

The local public must accept what comes to be a charge on it.

Where plats of projected cities or extensions are brought to bear on the subject, the rule is that only so much of the ground as is actually used can be regarded as accepted. 48 Conn. 416.

Here only thirty feet has ever been used as a road, and that is conclusive against the assumptions of public property in the remainder.

The strip of ninety feet is cut up by sinks and ravines, is overgrown with bushes, and is only vacant land in an overlanded country.

The county has nothing to do with any rights of proprietors who have easements or outlets from their lots over this land. If these proprietors have easements which bind the owner, they must assert them when molested. Their existence and extent is no foundation for a claim by the county to the ninety feet as a dedication. Mississippi City is not a village or town. No dedication was made to the county, and there did not exist an organized local public to receive a dedication of streets.

Appellee was not bound to apply for damages after the location had been made without notice to him. The remedy for wrongful appropriation of private property is by injunction. Mills Em. Domain, § 90, and note.

OPINION

COOPER, J.

About fifty years ago a company called "The Mississippi City Company" procured a body of land in Harrison county lying on the Gulf of Mexico, and laid it off into streets blocks, and public squares. According to the plan of the company this was to be the site of a great seaport city, and they gave to it the name of "Mississippi City." A plat was made and filed in the office of the clerk of that county, as we infer from references made to it in certain conveyances found in the record of this cause. A copy of that plat is in the record, and from it we learn that there were nearly three hundred squares, bounded by streets numbered from one to seventeen running east and west, and by about an equal number named for different states running north and south. The prospective city was intersected by a street named on the map, "Railroad street," over which a prospective railroad was to run to a real depot building and wharf, which the company then and there built and then became insolvent. The whole property was sold under execution and bought in by one Tegarden. Railroad street as laid down on the map is shown to have been one hundred and ten or one hundred and twenty feet wide. After his purchase Tegarden sold a number of lots according to the plan of Mississippi City, several of which abutted upon Railroad street, and are described in the conveyances made as bounded by it; in one or more of the deeds it is expressly covenanted by him that Railroad street shall be left open forever, but the grantor frequently in making other conveyances reserved the right to close up other streets appearing on the map. One of the lots thus situated on Railroad street was conveyed to the county authorities of Harrison county for the site of a court-house and jail, and the same were there located and yet remain. Directly opposite the court-house and across Railroad street is the post-office, and there are several residences on lots abutting on that street. Mississippi City never became a city or even an incorporated village, in consequence of which there are no streets adopted as such by municipal authority, but the strip of land called Railroad street has always remained open except as encroached upon on the one side or the other by those who have built residences along its boundary. It has never been accepted by the county authorities as a public highway by an order entered on its minutes, but it has been occasionally worked upon as a highway by the overseers of the roads, but only at points remote from the court-house, where by reason of its passing through swampy ground, work has been necessary to keep it in repair. Within the limits extending from the court-house to the point of controversy in this suit no work seems ever to have been needed, because of the sandy character of the land, and consequently none has been done. When Tegarden, the owner of the land, saw that there was but little prospect of building up a town upon his land, many of the streets laid down in the plat were closed up, and the land was sold in lots, laid off without regard to the location of the numerous streets. Some evidence appears in the record tending to show a purpose on his part of cutting down the width of "Railroad street" to thirty feet, the limit of a country road. The extent...