Herod v. Carroll County

• Decision Date: 18 January 1932
• Docket Number: 29543
• Citation: 162 Miss. 78,138 So. 800
• Court: Mississippi Supreme Court
• Parties: HEROD v. CARROLL COUNTY

138 So. 800

162 Miss. 78

HEROD v. CARROLL COUNTY

No. 29543

Supreme Court of Mississippi

January 18, 1932

Division B

1. EMINENT DOMAIN.

County supervisors' order transferring portion of highway to highway commission sufficiently established county's claim of ownership, as respects right to compensation for taking (Constitution 1890, section 17).

2. EMINENT DOMAIN.

County cannot assume jurisdiction over highway, and expend public funds in constructing and repairing it, without paying damages for taking (Constitution 1890, section 17).

HON JNO. F. ALIEN, Judge.

APPEAL from circuit court of Carroll county HON. JNO. F. ALLEN Judge.

Action by T. J. Herod against Carroll county. From an adverse judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. W. Conger, of Winona, for appellant.

The jury should have been instructed to find for the plaintiff.

It is well settled that no man's land may be taken for use by the public without due compensation being first made.

The statutes providing for the laying out, altering or changing of public roads are eminent domain statutes conferring a special jurisdiction upon the boards of supervisors.

Hinds Co. v. Johnson, 133 Miss. 591, 98 So. 95; Craft v. De Soto Co., 79 Miss. 618, 31. So. 204.

And are to be construed strictly in favor of the landowner, and departing from the original right of way and taking other lands of landowners without any notice or permitting the landowner his day in court is a trespass.

Copiah County v. Lusk, 77 Miss. 136, 24 So. 972.

The board has got to stand on what its minutes show.

Aden v. Board, 142 Miss. 696, 107 So. 753.

The plaintiff was not required to show that the minutes of the board showed by a preponderance of the evidence that the county took the particular land.

It is conceded that the county is not to be held liable on a contract unless it is shown that it made the contract on its minutes; but here the county is attempting to pursue a special statute in condemning lands for public use, and the statute must be followed strictly, and was not followed at all.

Sec. 6342 of the Code of 1930.

The minutes themselves are the exclusive evidence of what the board did, and not the testimony of individual members, as to those members' understanding of the orders.

Smith v. Board, 124 Miss. 36, 86 So. 707.

E. V. Hughston and S.E. Turner, of Carrollton, for appellee.

It is generally recognized principle of law, that a board of supervisors can only speak through its minutes. No single member can bind the entire board and the county is not responsible for the single act of a member nor for the acts of the entire board, unless such acts are spread upon the minutes of the board at a regular meeting thereof or a special meeting called for that purpose.

Dixon v. Green County, 76 Miss. 794, 25 So. 665; Craft v. Desoto County, 79 Miss. 618, 31 So. 204; Aden v. Issequena County, 142 Miss. 696, 107 So. 753; Grotan Bridge & Co. v. Warren County, 80 Miss. 214, 31 So. 711; Miss. Saw Mill Co. v. Douglas, 107 Miss. 678, 75 So. 885; Bridges v. Clay County, 58. Miss. 817; Smith v. Tallahatchie County, 124 Miss. 36, 86 So. 707; Lamar v. Tally, 116 Miss. 588, 77 So. 299; Smith v. Board, 124 Miss. 36, 86 So. 707.

The lower court ought not to have submitted this cause to a jury, but should have affirmed the order of the board of supervisors, appealed from, because the bill of exceptions in said cause show affirmatively that the said board had never had any proceedings as shown on its minutes locating the said road.

Argued orally by J. W. Conger, for appellant.

OPINION

Ethridge, P. J.

The appellant, T. J. Herod, filed a claim with the board of supervisors of Carroll county for damages for the taking of a certain road right of way over certain lots belonging to Herod, and for laying out and constructing a road thereon without having condemned the land and paid for it in the manner provided by law. It appears that the property owned by Herod was formerly owned by another party, and the road had been surveyed and laid out across lands now owned by Herod at a different point. Subsequently, the road was constructed where it now is, but it does not appear that the board of supervisors had placed the order laying out and establishing the road and paying for the construction thereof upon its minutes. There was oral proof, without dispute, which shows that such was the fact. The dispute between Herod and the county appears to have been as to the extent of a former settlement for the right of way so taken, or a portion thereof.

It was Herod's contention that this former settlement embraced a right of way to the southeast corner of block 10 in the town of McCarley, and that the road was actually constructed beyond and to the east of that point some distance through to the lots. It was the contention and proof of the county that payment was for the right of way over all the lots in the village of McCarley belonging to Herod.

The court instructed the jury for the county as follows "The court instructs the jury that it is incumbent upon the plaintiff to prove by a preponderance of the evidence, first, that his land had been taken or damaged by Carroll county, acting through its board of supervisors as shown on the minutes of said board, and second, the plaintiff must show by a preponderance of the evidence...