Illinois Cent. R. Co. v. Swalm
| Decision Date | 08 February 1904 |
| Citation | 36 So. 147,83 Miss. 631 |
| Court | Mississippi Supreme Court |
| Parties | ILLINOIS CENTRAL RAILROAD COMPANY v. FRANK S. SWALM |
FROM the circuit court of Lincoln county. HON. ROBERT POWELL Judge.
Swalm appellee, was plaintiff, and the railroad company, appellant was defendant, in the court below. The suit was a proceeding from a mandamus to compel the railroad company to erect a bridge over its tracks for a highway crossing.
Appellee Swalm and others, filed their petition with the board of supervisors, asking for the establishment and opening up of a new public road just south of the corporate limits of Brookhaven. The proposed new road ran east and west, and was about a quarter of a mile long, intersecting two public roads running north and south. The new road crossed the tracks of the Illinois Central railroad where there was a cut about twenty-five feet deep and about fifty feet wide, through which the double tracks of the Illinois Central railroad extended. At the April, 1902, term of the board of supervisors, an order was entered establishing and laying out the new road, and appointing three commissioners for that purpose. This order provided that the petitioners should pay all the expenses or damages that may be incurred in laying out, working, and maintaining the said road for three years. The order further recited: "It further appearing that all the owners, except the Illinois Central Railroad Co., of the land through which the road is proposed to be run, have signed the petition, and that five days' notice of the presentation of the petition has been given to the Illinois Central Railroad Co., as required by law, it is ordered," etc. There was no appeal from this order by the Illinois Central Railroad Co. Appellee, Swalm, filed his petition in the circuit court at the November term, 1902 against the Illinois Central Railroad Company, praying a writ of mandamus to compel the railroad company to build a bridge over its tracks. Defendant pleaded the general issue, and gave notice under it that it would prove, among other things, that the railroad of defendant company was built and was in operation 30 or 40 years before the highway was laid out across its tracks, claiming that the statute requiring railroad companies to construct grades or bridges on public highways across their tracks does not apply in such cases; that the public interests and convenience did not require said highway to be laid out and established; that said highway was laid out by a committee of three persons, while the statute requires the committee to consist of only two persons; and that the committee laid out and opened the road for a width of fifty feet, while only authorized to lay out and open it for a width of thirty feet. There was a trial at the May term, and there was a peremptory instruction by the court to find for the plaintiff. Defendant offered to prove by several witnesses that the highway and bridge were not necessary for public travel and convenience. Plaintiff's objection to this evidence was sustained on the ground that the board of supervisors had full authority to decide this matter, and, having decided it, and no appeal having been taken from their decision, the matter is res adjudicata. It was insisted by the defendant that the order of the board of supervisors is void on its face, because of the facts mentioned and discussed in the opinion of the court. Defendant's motion for a new trial was overruled, and it appealed to the supreme court.
Affirmed.
Mayes & Longstreet and J. M. Dickinson, for appellant.
The order of the board of supervisors of Lincoln county entered at the July meeting, 1902, undertaking to establish the highway, is void on its face for the following reasons:
First. The order does not make or warrant an unconditional establishment of the road. The order recites, in its decretal part, as follows: "It is ordered, considered, and adjudged by the board that the prayer of the petitioners ought to be granted, and the same is hereby granted; provided, the petitioners will pay all expenses or damage that may be incurred in laying out, working, and maintaining the road for three years." There nowhere appears in the record the acceptance of these conditions by the petitioners on whom the burden is put as a liability to be assumed before the road shall be established or laid out. It was a conditional establishment of the road, not a positive or final one.
Second. The order establishing the alleged new highway is void on its face because there is no warrant in law for the action of the commissioners, who, on laying out the highway, opened it up and marked it out for a width of fifty feet, in plain violation of § 3887 of the code of 1892. The section referred to states explicitly that the width of the highway should not exceed thirty feet, and yet the commissioners laid out the road fifty feet wide, and the supervisors undertook to approve of their having done so.
Third. The said order of the board establishing said alleged highway is void on its face because it evidences a material departure from the procedure required by § 3892 of the code of 1892, in this, the board undertook to appoint three commissioners, when the law only authorized the appointment of two. Craft v. DeSoto County, 79 Miss. 622.
Fourth. The order of the board is void on its face because it does not show how notice was given to the Illinois Central Railroad Company. There is a recital in the order that it appeared to the board that five days' notice of the presentation of the petition had been given the Illinois Central Railroad Company, as required by law, but in this phase it was "jurisdictional" to show in the order the notice pretended to have been given the Illinois Central Railroad Company.
There is no allusion in the original petition to any interest of the Illinois Central Railroad Company, and that company is not brought in as a party in annoys, therefore no summons could have been lawfully issued.
We further respectfully insist that there was no power in the court to order the writ of mandamus under the evidence.
In many of the cases the grant of such a writ is sustained because of clear proof of charter obligations, and in others on account of the special authority declared by the terms of statutes of states.
But the statute of Mississippi confines the right to the writ within narrower limits than does the general principle, and the statutes of many states.
The Illinois Central Railroad Company, within the meaning of the code of 1892, § 2846, holds "no office, trust, or station," and it cannot be claimed that one of the duties resting on it "resulting from an office, trust or station" is the duty of building a bridge across its tracks.
Nor can the use of the mandamus in this character of case be referred to the common law right or rule, because, in the first place, the especial statutory provision of this statute supersedes the common law, and give the right to the writ only as expressly provided, and, in the second place, the writ of mandamus could not have been resorted to under the common law to compel a railroad company to build a bridge over its tracks to accommodate a public highway surveyed over its right of way after the construction of the railroad.
In the case of Illinois, etc., R. R. Co. v. Copiah County, 81 Miss. 685; S. C., 33 So. 502, this honorable court held that at the common law there was no such obligation resting on the railroad company, but that § 3555, Code 1892, changed the common law rule so as to impose the new liability on the company, and sustained the action for the statutory penalty. If there was no common law right there can be no common law remedy.
Jones & McCullough, for appellee.
It is admitted that the plaintiff owns property on both sides of the new highway and is interested therein. Being interested, he has the right to bring this suit. Code 1892, § 2846; Code 1892, § 3555; 20 Enc. Pl. & Pr., 904; 13 Enc. Pl. & Pr., 630; 6 Rapalje & Mack's Digest, Railway Law, 384; Railroad Co. v. State, 13 So. 384.
The testimony in the case shows that the highway cannot be traveled unless a bridge is constructed over the track. It is also shown by the testimony that the...
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...long after the appearance and location of the railroad, and numerous streets were laid out over the railroad right of way. In Illinois v. Swalm, 83 Miss. 631, 36 South. 147, the court held that a railway company might be required to place a bridge over its road and to grade approaches there......
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