Hattiesburg Realty Co. v. Mississippi State Highway Commission, 52917

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: ROBERTSON; PATTERSON
• Citation: 406 So.2d 329
• Parties: HATTIESBURG REALTY COMPANY v. MISSISSIPPI STATE HIGHWAY COMMISSION, Pine Belt Land Company and Mrs. TerryAnderson Currie, et al.
• Docket Number: No. 52917,52917
• Decision Date: 04 November 1981

Page 329

406 So.2d 329 HATTIESBURG REALTY COMPANY
v.
MISSISSIPPI STATE HIGHWAY COMMISSION, Pine Belt Land Company
and Mrs. TerryAnderson Currie, et al. No. 52917. Supreme Court of Mississippi. Nov. 4, 1981.
As modified Dec. 9, 1981.

Page 330

Wallace R. Gunn, Hattiesburg, Gerald, Brand, Watters, Cox & Hemleben, Martha Gerald, Jackson, for Hattiesburg Realty.

J.B. Van Slyke, Jr., George G. Currie, Jr., Gray, Montague & Pittman, Frank D. Montague, Jr., Hattiesburg, for Currie, et al. and Cloverleaf Mall.

Milton Schlesinger, Hattiesburg, for Pine Belt Land Co.

Pope & Pope, Moran M. Pope, Jr., Hattiesburg, Bill Allain, Atty. Gen., by Frank E. Shanahan, Jr., Asst. Atty. Gen., Jackson, for Highway Commission.

Before ROBERTSON, P.J., and BROOM and HAWKINS, JJ.

ROBERTSON, Presiding Justice, for the Court:

Hattiesburg Realty Company appeals from a decree of the Chancery Court of Forrest County, dismissing its original and first and second amended bills of complaint against Mississippi State Highway Commission, Pine Belt Land Company, Mrs. Terry Anderson Currie, Edward Alexander Currie, Jr., Overton A. Currie, Daniel McMahon Currie, and Cloverleaf Mall, Ltd., to confirm title to Lots 9, 10, 11 and 12, Block 6, West End Addition to the City of Hattiesburg, Mississippi.

Defendant Pine Belt Land Company and Defendants the Curries, et al, cross-appeal from a dismissal of their respective cross-bills in which they each prayed for confirmation of title to the said lots.

The final decree confirmed fee simple title to said lots in the Mississippi State Highway Commission and canceled of record "any and all purported conveyances from and after October 5, 1940, thereby causing each and every such instrument to be set aside and held for naught as same relates to the title of Mississippi State Highway Commission from and after said date of October 5, 1940."

In 1940 the State Highway Commission determined that it was in the public interest to improve U.S. Highways 49 and 11, south of Hattiesburg, for the traveling public. This would be accomplished by 4-laneing U.S. Highways 49 and 11 and constructing a cloverleaf interchange at the intersection

Page 331

of U.S. Highways 49 and 11. Among the right-of-way easements acquired was one from the heirs of Emma Tuttle. The warranty deed from the heirs of Mrs. Tuttle was executed on October 5, 1940, and granted unto the State Highway Commission "for right-of-way purposes":

Lots 9, 10, 11 and 12 in Block 6, in the D.M. Gatlins West End Addition to Hattiesburg, Mississippi.

World War II intervened, and finally in 1947 the improvement of U.S. Highways 49 and 11 and the construction of the cloverleaf interchange were completed. A large shopping center and many business establishments were constructed and developed around this cloverleaf interchange. Later a service road was constructed paralleling the ramp approach in the northeast quadrant of the interchange. While no part of the 4 Tuttle lots was used in the roadbed for the northeast ramp or service road, these lots have been continuously used since 1947 by the Highway Commission as a buffer zone between the service road and the shopping center. A paved four-lane entrance and exit road was constructed through the middle of this property connecting the northeast quadrant service road with the Cloverleaf Mall parking area. Two large concrete drainage culverts were constructed on the Tuttle lots. The Commission, since 1947, has continuously used these lots for drainage purposes and has regularly mowed, cleaned up, pruned trees and otherwise maintained and preserved the scenic beauty of these lots. They continue to be used as a buffer zone for the safety of the traveling public.

The numerous assignments of error can, in our opinion, be safely reduced to these eight:

I. The chancellor erred in holding the deed from the heirs of Emma Tuttle was and is a valid deed without any reverter clause or other such restriction.

II. The chancellor erred in holding the commission, after obtaining statutory rights to acquire fee simple title, acquired fee simple title to the property by adverse possession under color of title.

III. The chancellor erred in finding the commission had used the property uninterruptedly and continuously for a period of time in excess of 35 years and such use had been within that contemplated by the laws of the State of Mississippi and that the term "highway" in its legal sense includes not only the roadway itself but the entire right-of-way as well.

IV. The chancellor erred in not adjudicating the rights of the parties with regard to Huston Avenue, Washington Street, and the alley in Block 6 of West End Addition, and the oil, gas and minerals.

V. The chancellor erred in holding the commission was immune from suits for willful trespass under the doctrine of sovereign immunity.

VI. The chancellor erred in finding that Hattiesburg Realty's and Pine Belt's claims were barred by the statute of limitations.

VII. The chancellor erred in finding that the proof was insufficient to establish adverse possession for the statutory period by the Curries prior to the October 5, 1940, Tuttle deed to the commission, and that the proof was also insufficient to establish the Curries' title to the property by adverse possession since October 5, 1940.

VIII. The chancellor erred in ruling that the city and county tax sales of the property on September 15, 1941, for 1940 advalorem taxes were void and that any liens for taxes on the property for the year 1940 were extinguished when the commission purchased the property for right-of-way purposes on October 5, 1940.

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I.

Appellant contends that the chancellor erred in holding that the October 5, 1940, deed from the heirs of Emma Tuttle was and is a valid deed without any reverter clause or other such restriction. The warranty deed from the heirs of Mrs. Tuttle was executed on October 5, 1940, and granted unto the State Highway Commission "for right-of-way purposes":

Lots 9, 10, 11 and 12 in Block 6, in the D. M. Gatlins West End Addition to Hattiesburg, Mississippi.

Mississippi Code of 1930 Annotated, section 4998, which was in effect when the Tuttle deed was executed on October 5, 1940, provided in part:

"That the state highway commission shall have complete control and supervision, with full power and authority to locate, relocate, widen, alter, change, straighten, construct, or reconstruct any and all roads on the state highway system as herein defined, and shall have full and complete authority for the making of all contracts, surveys, plans, specifications, and estimates for the location, laying out, widening, straightening, altering, changing, constructing, reconstructing and maintaing and securing rights-of-way therefor of any and all such highways, and to authorize the employees of the state highway department to enter upon private property for such purposes." (Emphasis added).

This section was construed by this Court as giving the commission authority to acquire only a right-of-way or easement in property for highway purposes. Nicholson v. Board of Mississippi Levee Com'rs, et al., 203 Miss. 71, 33 So.2d 604 (1948) and Whitworth v. Mississippi State Highway Commission, 203 Miss. 94, 33 So.2d 612 (1948).

The Tuttle deed itself conveys these four lots to the State Highway Commission "for right-of-way purposes" only.

In Dantzler v. Mississippi State Highway Commission, 190 Miss. 137, 199 So. 367 (1941), this Court stated:

"It is a grave error to suppose that a condemnor of a right of way for a public road takes any such an interest as the entire fee in the land. In Campbell v. Covington County, 161 Miss. 374, 378, 137 So. 111, 112, this court said: 'And, whether the right of way is acquired by condemnation or prescription, the title to the soil, and all the profits thereof consistent with the existence of the easement, remain in the original owner." 190 Miss. at 148, 199 So. at 370.

If and when the Commission decides to abandon its right-of-way easement over all or any portion of the Tuttle lots, or declares all or any portion of the Tuttle lots surplus under applicable law, the disposition of the whole or such portion would be...