Humphreys County v. Washington County

• Decision Date: 20 February 1922
• Docket Number: 22304
• Citation: 90 So. 710,128 Miss. 132
• Court: Mississippi Supreme Court
• Parties: HUMPHREYS COUNTY v. WASHINGTON COUNTY

90 So. 710

128 Miss. 132

HUMPHREYS COUNTY v. WASHINGTON COUNTY

No. 22304

Supreme Court of Mississippi

February 20, 1922

October 1921

1 COUNTIES. New county held to have assumed damages in connection with road project as to part thereof in old county which was included in new county.

Under the contract between Humphreys and Washington counties providing that "the county of Humphreys assumes all liabilities incident to the road project for the work done subsequent to its organization through that portion of Washington county which was included within the boundaries of Humphreys county," etc. Humphreys county assumed all damages growing out of the laying out and construction of the public roads therein referred to within the territory excised from Washington county and included in Humphreys county.

2 COUNTIES. Eminent domain. Landowner held entitled to recover for damages either from county constructing road or a new county assuming liability; county compelled to pay damages for constructing road held entitled to recover from new county assuming liability.

A landowner, damaged because of the laying out and construction by Washington county of a road referred to in the said contract between Washington and Humphreys counties, may sue and recover against either Washington or Humphreys county and, in event he recovers against Washington county, that county may recover from Humphreys county the damages sustained by the landowner, and which it has been compelled to pay.

3. EMINENT DOMAIN. Landowner may recover difference in value of his land before and after construction, the value of land actually appropriated, and damage to crops.

A landowner whose, land has been appropriated by a county for a public road, and whose crops have been damaged by reason of the laying out and construction of the road, may recover from the county the value of his land through which the road is constructed immediately before and after its construction, the value of the land actually appropriated, and the damage inflicted upon his crops.

4. TRIAL. Owner may not complain that he was not allowed interest on damages to land and crops in absence of request for instruction thereon.

Conceding that interest should be awarded on the amount of damages assessed in actions for injuries to or destruction of property, the failure of a jury to award such interest cannot be complained of in the absence of a request for an instruction directing it so to do.

5. APPEAL AND ERROR. Verdict for unliquidated damages presumed to include interest.

A verdict for a fixed sum in an action for unliquidated damages will be presumed to include any interest to which the plaintiff may be entitled.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS, Judge.

Action by Washington County against Humphreys county. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 89 So. 145.

Affirmed.

V. B. Montgomery and H. F. Jones, for appellant.

Appellee admits that the decision of this matter hinges upon the inter-county agreement, which was ratified by the Mississippi legislature. Issue is taken with us, however, as to the construction which Humphreys county places upon this inter-county agreement should be read with both eyes shut, so to speak, as certain clauses are reached, and then certain other clauses are to be magnified and intensified into dominating factors. In short, that the inter-county agreement should be read so as to mean something different from what it plainly says; and that the words: "For work done subsequent to its organization," should be read entirely out of it. Yet the appellee cites no authority whatever for such an unheard of construction of a contract.

In answer to this contention, we desire to quote the following statement from Corpus Juris, which contains the general law on this subject:

"Adjustment of Rights and Liabilities:--A. In Absence of Statute. In the absence of express legislative or constitutional provision as to the rights and liabilities, the general rule is that a new county will be entirely free of any of the burdens of the counties from which its territory was taken. No liability attaches because of the former relations of the inhabitants of the respective counties. The old county owns all the public property within its new limits, and is responsible for all debts contracted by it before the passage of the act of separation; and such debts it must pay without any right of contribution from the new county. Likewise, on the detachment of territory from one county, and its attachment to another, in the absence of express provision to the contrary, the transferred territory loses all claim to share in the property belonging to the county from which it is taken, and is relieved of the indebtedness resting on the latter, except in the cases of debts contracted before the separation and which are a lien on the detached territory; but it incurs the liabilities and shares in the property of the county to which it is attached and is equally subject to assessment and taxation for that purpose." Volume 15, Corpus Juris--Counties, section (33) 5, pages 407-8. Then we have a statement of the general rule where there is a statute. (The inter-county agreement having been ratified by the legislature, is the same thing as a statute.)

By Statute: In General. When a new county is organized, or when a portion of the territory of one county is detached and annexed to another, the legislature has the power to apportion the common property and the common burdens in such a manner as to it may seem reasonable and equitable, and to compel taxation for that purpose. This power of the legislature is exclusive, no part of it belonging to the courts or to the counties themselves; and where the legislature has exercised its power by providing for an apportionment in a particular manner, the courts are without authority to interfere, although the plan provided may appear inequitable. Volume 15, Corpus Juris-Counties, section (34), page 408.

The inter-county agreement now before the court was ratified by the Mississippi legislature, and consequently has all of the force and effect of a statute adjusting the rights and liabilities between Washington county on the one hand, and Humphreys county of the other.

We most respectfully submit, therefore, that this inter-county agreement should be construed according to the true intent and meaning thereof; and that the interpretation thereof should be fair, just and reasonable, instead of either broad or narrow. We submit that the true intent and meaning limits the liability of Humphreys county to that assumed, to-wit: The county of Humphreys assumes all liabilities incident to the road project for work done subsequent to its organization. We fully agree that the word liabilities, in such an agreement covers not only liability arising ex contractu, but also that arising ex delicto. This point, and the point that Duggan had the right to sue either county in the first place, was all that the former opinion decided, or indeed, could have decided.

We therefore most respectfully submit that any reasonable interpretation of this inter-county agreement places upon Humphreys county liability only for work done subsequent to its organization. Hence the cause must be reversed and dismissed, since appellee apparently admits that all damages established by the evidence, accrued from work performed prior to the organization of Humphreys county.

Counsel for Washington county contend in the second place that the inter-county agreement, if construed as Humphreys county urges, would be inequitable.

In answer to this contention, we want to say in the first place that this court has nothing to do with the equity or inequity of this inter-county agreement, and we again refer the court to the citation from Corpus Juris, to this effect which we have set out here, supra. This citation from Corpus Juris is supported by numerous authorities cited in the notes thereto, and inasmuch as appellee has not cited a single authority, we will shorten matters by not listing the authorities here.

Walton Shields, for appellee.

This cause was before this court on a former appeal in which Washington county was the appellant and Humphreys county the appellee. On the former trial the lower court had sustained a demurrer to the original declaration and also the amended declaration, and on appeal to the supreme court the court reversed the case, remanding it for a trial on the merits.

On the second trial Humphreys county filed a plea of the general issue and also a special plea. The special plea alleged that Washington county was estopped from setting up and suing for certain of the items of damages, to-wit: The value of the land taken and certain other items named, because, it alleged, said items of damage were matters of damage for the taking of the right-of-way by Washington county from the said J. W. Duggan, etc. And the said Duggan, failed to appear before the board of supervisors of Washington county at the August, 1917, meeting thereof when the petition for the laying out of said public road was heard by said board of supervisors and claim compensation for the land taken, etc and also failed to appear and make such demand at the September, 1917, meeting and at the October, 1917, meeting of the said board of supervisors of Washington county and that, therefore, said items of damage constituted no claim against Washington county and therefore constituted no claim against Humphreys county in this suit. The special plea also contained the allegation that due and legal notice of said proceedings before said board of supervisors of Washington...