Henritzy v. Harrison County

• Decision Date: 24 January 1938
• Docket Number: 33088
• Citation: 180 Miss. 675,178 So. 322
• Court: Mississippi Supreme Court
• Parties: HENRITZY v. HARRISON COUNTY

178 So. 322

180 Miss. 675

HENRITZY v. HARRISON COUNTY

No. 33088

Supreme Court of Mississippi

January 24, 1938

Division B

APPEAL from the chancery court of Harrison county HON. D. M RUSSELL, Chancellor.

Suit by Harrison County against Elton B. Henritzy for a mandatory injunction to compel defendant to remove a structure placed by him near a sea wall. Decree for the county, and defendant appeals. Affirmed.

Affirmed.

J. L. Taylor, of Gulfport, for appellant.

The Chancellor erred in holding Chapter 319, Laws of 1924, constitutional. We submit that the law is unconstitutional and violative of Sections 17 and 170. Chapter 319 seeks to give authority for eminent domain in Section 5 of the act by providing that, "the Road Protection Commission shall make publication for thirty days in some newspaper published in the county wherein such improvements are made, setting forth the commencement and termination with a general outline of the nature and extent thereof." Then provides that any landowner or other person shall claim compensation for damages sustained shall petition the board of supervisors within thirty days after the expiration of the time provided for such publication, etc. It will be observed that the only notice provided to be given is by publication by the road protection commission, and no notice is required to be given by the Board of Supervisors. Section 170 of the Constitution provides, among other things, that the board of supervisors shall have full jurisdiction over roads, etc. Section 170 also provides that the Legislature may have power to designate certain highways as state highways, and place such highways under the control and supervision of the State Highway Commission, for construction and maintenance. United States 90 is a states highway, and Section 319 vests in the Road Protection Commission and the Board of Supervisors the maintenance of this road in providing that it might be maintained and protected by the construction of the sea wall. In view of this statement of fact, it would appear that the State Highway Department would have the right of eminent domain and thus Chapter 319 is violative of Section 170 of the Constitution.

Chapter 26 of the Code of 1930, is a chapter on eminent domain and which procedure must be followed. "except as elsewhere in this code specifically provided."

Eminent domain is a special statutory proceeding, but Chapter 319 only provides that the road protection commission shall make publication for thirty days in some newspaper published in the county, and that the owner, notwithstanding he may be a resident, must appear before the Board of Supervisors and file a petition within thirty days.

The board of supervisors has to speak through its minutes, and when notices are required to be given, the clerk is instructed to give such notice. It is not necessary for me to say that every jurisdictional fact must appear affirmatively of record as the board has limited special statutory authority.

Craft v. DeSoto County, 79 Miss. 618, 31 So. 204.

The law does not provide for the giving of the notice to any owner, but simply provides that the road protection commission, "whenever it shall become necessary to construct, widen or protect any highway under the provisions of this act, the road protection commission shall make publication for thirty days in some newspaper published in the county wherein such improvements are made, setting forth the commencement and termination with a general outline of the nature and extent thereof." Unfortunately, this is all that the road protection commission is publish or give notice of, and the board of is not required to give any notice and notwithstanding Mississippi U. S. 90 as it then and now exists is a state highway, and the Highway Department is not authorized or directed to give any notice, but on this flimsy notice Section 319 seeks to give authority to condemn and take a strip of land 50 feet wide and 27 miles long owned by hundreds of different owners.

The court erred in holding that the county had acquired title to the 35 feet immediately north of the present sea wall by condemnation proceedings. The very purpose of Chapter 319 was to erect sea walls or other structures or devices for the protection of public highway extending along the beach or shore of any such body of tidewater, etc. It is shown that the sea wall only occupies 15 feet from north to south, and that it was sought to condemn 50 feet for the purpose of constructing a sea wall to protect a public road extending along the beach or shore.

Chapter 26 of the Code of 1930, is the chapter on eminent domain, and the record in this cause does not show that Chapter 26 was used or followed in any way, so that we contend the county did not acquire the 35 feet north of the present sea wall by condemnation proceedings.

The proceedings had were under an unconstitutional act and void, so that the county has no more right to claim the 35 foot strip by adverse possession than it has to claim the strip north thereof between the 35 foot strip and Highway 90.

We contend that the appellant is entitled to recover damages or compensation at this time because it is now proposed to build a road across the property and thus put an additional servitude on his land.

We submit that the court could not confirm the title to the strip of land for the reason that there was no deraignment of title as provided by Section 405 of the Code of 1930.

George R. Smith, of Pass Christian, for appellee.

In seeking to attack the constitutionality of Chapter 319 of the Laws of Mississippi of 1924, appellant confuses the issues: Whether the faking was lawful; and whether the property owners are now precluded from asserting claims for damages due to what appellant con tends was a defective notice to property owners to assert claims for damages. That the authority to exercise the right of eminent domain under the state of facts that existed at that time was legally vested in the Board of Supervisors of Harrison County, and the act granting such specified authority constitutional, can hardly be questioned.

Brown v. Beatty, 34 Miss. 227; Ladner v. Road Protection Com., Hancock Co., 150 Miss. 416, 116 So. 602.

The Board of Supervisors acted within its authority and no appeal having been taken from its order of condemnation, the same became final and the only question that remained was regarding the rights of property owners to assert claims for damages. This is especially true in view of the fact that all of the proceedings related to the preservation of the public roads and highways under the jurisdiction of the Board of Supervisors and for the building, maintenance and preservation of which they were vested with full constitutional authority.

Section 5 provided for publication for thirty days, and we respectfully submit the publication made was sufficient and constituted a substantial and sufficient compliance with the provisions of the statute.

20 C. J. 934.

Despite anything in the notice that may have been construed as limiting the time in which claims for damages could have been filed, we respectfully submit that any such matter would have been mere surplusage; the statute required no date or deadline to be fixed in the notice and if such had been fixed in conflict with the statute it would not have binding upon the landowners and would not have precluded their filing claims for damages within the full period fixed by the statute.

State ex rel. Chelan Electric Co. v. Superior Court, 142 Wash. 270, 253 P. 115; Stewart v. Board of Police, 25 Miss. 479; 20 C. J. 934; Cage v. Trager, 66 Miss. 563.

The contention that compensation to landowners should have been made prior to the taking or using of the property affected is not supported by the repeated decisions of this court.

Hinds County v. Johnson, 98 So. 95, 133 Miss. 591; Cage v. Trager, 60 Miss. 563; Levee Commissioners v. Daney, 65 Miss. 335; Joslin v. Providence, 262 U.S. 668, 43 S.Ct. 684, 67 L.Ed. 1167; Highway Commission v. Buchanan, 165 So. 795, 175 Miss. 154; Byrd v. Jackson County, 176 So. 386.

We submit that the notice provided by Chapter 319 of the Acts of 1924, meets all constitutional requirements; and that the notice actually made in this matter was a sufficient and substantial compliance with the statute and, inasmuch as the statute fixes the remedy to be followed by the landowners in claiming damages; that remedy is exclusive.

Copiah County v. Lusk, 77 Miss. 136; W. U. Tel. Co. v. Railroad, 107 Miss. 626, 65 So. 650; N. O. & G. N. R. Co. v. Hemphill, 35 Miss. 1; Stewart v. Board of Police of Hinds County, 25 Miss. 479.

If, however, any question did exist as to the legality or sufficiency of the notice, which we respectfully deny, appellant is now barred from asserting any claim under the statutes of limitations of our state, and particularly Sections 2285, 2287, 2291 and 2292, Code of 1930.

Romano v. Y. & M. V. R. R. Co., 87 Miss. 721, 40 So. 150.

If any question existed as to the validity of the condemnation of the right-of-way, which we again respectfully deny, appellant is now barred from asserting same under Section 2285 of the Code, the same being an action concerning land; and the title to the full fifty foot right of way has become vested under the provisions of Section 2287 of the Code of 1930, by adverse possession, the actual possession of the south fifteen feet of said right of way having had constructed thereon a step type concrete sea wall for twelve years next preceding the commencement of this suit, together with the other acts of possession and under the color of title of the condemnation proceedings vested the county with a full and complete title to the easement.

Long Island R. R....