Jefferson Davis County v. Riley
| Decision Date | 09 June 1930 |
| Docket Number | 28458 |
| Citation | 158 Miss. 473,129 So. 324 |
| Court | Mississippi Supreme Court |
| Parties | JEFFERSON DAVIS COUNTY v. RILEY et al |
On Suggestion of Error, .
APPEAL from circuit court of Lawrence county HON. J. Q. LANGSTON Judge.
Action by Jefferson Davis county against Jeff A. Riley and others. From a judgment for defendants, plaintiff appeals. On suggestion of error. Suggestion of error sustained, former judgment set aside, former opinion withdrawn, and case remanded to docket for hearing. Former opinion not to be reported.
ON THE MERITS.
(DIVISION A. Oct. 13, 1930.)
[130 So. 284. No. 28458.]
1 DRAINS.
Term "drain" as generally understood denotes artificial channel or trench through which water or sewage is caused to flow.
2 DRAINS.
"Drainage structure" is artificial channel or trench constructed for drainage purposes.
3. BRIDGES.
"Bridge" is structure erected over an obstruction in highway so as to make continuous roadway.
4. BRIDGES. Bridge spanning natural stream crossing highway held not "drainage structure" within highway department's acceptance of county road which excepted drainage structures not built according to department's standard plans and specifications (Hemingway's Code 1927, section 5630).
County commenced suit for damages sustained because of burning of bridge, and defendants claimed that road and bridge had been taken over by highway department. Laws 1924, chapter 278 (Hemingway's Code 1927, section 5630), authorizes state highway department to take over roads within county so far as their maintenance is concerned. The highway department's acceptance of the road on which bridge was located excepted "all drainage structures not built according to standard plans and specifications of Mississippi State Highway Department." The bridge in question was erected, not for drainage purposes, but to afford travelers passageway from one bank of water course to the other, and therefore was not within the excepted structures.
APPEAL from circuit court of Lawrence county HON. J. Q. LANGSTON, Judge.
Action by Jefferson Davis county against Jeff A. Riley and others. From a judgment for defendants, plaintiff appeals. Affirmed.
See, also, 129 So. 324.
Affirmed.
C. E. Thompson, of Prentiss, and Hall & Hall, of Columbia, for appellant.
The fact that at the time the fire occurred the land was not in the actual possession of appellant, but had been turned over to another for the purpose of maintenance is immaterial.
8 R. C. L. 554, 555, 557; Gilchrist-Fordney Co. v. Parker, 69 So. 291, 109 Miss. 445.
The venue section providing that action for firing woods be brought in the county where the land or some part thereof is situated, but if the land be in two or more counties, and the defendant resides in either of them, the action shall be brought in the county of his residence, the reference to "the land be in two or more counties" means the land which has been trespassed upon.
Section 500, Hemingway's Code of 1927; Krauss v. Stewart, 122 Miss. 503, 84 So. 463.
At that time, the case of Archibald v. Railroad Co., 66 Miss. 424, 6 So. 238, the statute designated only two classes of actions as local actions, viz.: (1) "Actions of ejectment" and (2) "actions of trespass on lands."
The statute which governed at the time of the Archibald decision was changed in 1908 (Laws of 1908, ch. 166), and the same now appears as section 500 in the 1927 Code. When it was amended certain other actions were added to the list of local actions, viz.: (1) "Actions for the statutory penalty for cutting and boxing trees and (2) firing woods and (3) actions for the actual value of trees cut." As stated in the Archibald case, the question as to what actions are local is to be determined from the statute and not from the common law.
A bridge is a structure of wood, iron, brick or stone, ordinarily erected over a river, brook or lake, for the more convenient passage of persons. In other words a bridge is a structure over some natural or artificial drainage course, and when we say a drainage structure it is difficult to conceive of what is meant if it is not a bridge.
Enfield Toll Bridge Co. v. Railroad, 17 Conn. 40, 42 Am. Dec. 716.
The minutes of boards of supervisors reciting their orders and judgments, like those of justices of the peace, will be looked upon with indulgence. Although they may be unskillfully drawn, if by a fair and reasonable interpretation their meaning can be ascertained, they will be sufficient to answer the requirements of the law.
Noxubee County v. Long, 141 Miss. 72, 106 So. 83.
Drainage structure does not imply any technical meaning. They are common, ordinary words, and therefore under the law they should be given a common and ordinary meaning and not a strained, narrow or technical meaning. It is a matter of common knowledge that highway engineers consistently use the words drainage structures to designate bridges.
Human language is not a perfect vehicle for conveying thought, and it frequently happens that words used have a broader or narrower meaning than that intended by the person using them. One of the maxims of the law therefore is verba intentione debent inservire.
Kennington v. Kimbrough, 101 Miss. 259, 57 So. 809; State v. J. J. Newman Lbr. Co., 103 Miss. 263, 60 So. 215; Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514; Huber v. Freret, 138 Miss. 238, 103 So. 3; Canal Bank & Trust Co. v. Brewer, 147 Miss. 885, 114 So. 127.
Forrest B. Jackson, Assistant Attorney-General, for the state.
The order of the board of supervisors shows that the Highway Department specifically followed the provisions of the statute in accepting the road in question, and that the bridges and drainage structures were considered separately and were not accepted by the state highway department.
Sec. 2, ch. 278, Laws of 1928; Sec. 5630, Hemingway's Code of 1927.
The bridge in question not having been built up to the plans and specifications of the state highway department, and the state highway department not having accepted said bridge for maintenance, the bridge under the statutes above referred to was not and is not under the jurisdiction of the state highway department, and the state highway department can have no interest in said bridge or the recovery of damages for its wrongful burning.
W. D. Hilton, of Mendenhall, for appellee.
While section 5630, Hemingway's Code of 1927 provides that the road bed and bridges may be taken over separately by the state highway department, yet the order turning over to the state highway department the highway did not except bridges, but drainage structures. Bridges and drainage structures might be the same thing, and it certainly could be quite two different things, and there is no provision in the section whereby it may not take over drainage structures.
It will be noted that the venue of suits for trespass of land depends upon the location of the land, and that if the land is partly situated in two counties and the defendant resides in one of the counties, that the suit must be brought in that county where the defendant resides. The statute does not say that suit shall be brought in the county where the trespass occurred.
Sec. 707, Code of 1906, sec. 486, Hemingway's Code of 1917; Krauss v. Stewart, 122 Miss. 503, 84 So. 463.
E. B. Patterson, of Monticello, and Hilton & Hilton, of Mendenhall, for appellee.
The only local actions under our statute are ejectments and actions of trespass for injuries to land. They must be brought in the county in which the land lies. All other actions must be brought with reference to the defendant.
Oliver v. Loye, 59 Miss. 320; Archibald v. Railroad Company, 66 Miss. 424.
The action here is not local under the statute. It is not to recover on account of an invasion of the possession of the appellant, or for trespass committed on the land; but for damages that resulted in consideration of a wrongful act disconnected from the land. The action of trespass on land, to become local under the statute, must contain the elements of force and entry necessary to constitute the common-law action of trespass quare clausum fregit.
ON SUGGESTION OF ERROR.
The appellant sued the appellee in Jefferson Davis county for damages sustained by it because of the alleged burning by the appellees of a bridge which spanned a stream crossing one of the public roads of the county. The damages sought to be recovered are the value of the bridge and the statutory penalty provided by section 4988, Code of 1906, Hemingway's 1927 Code, section 3452.
The road intersects a tract of land owned by Riley which was situated in both Lawrence and Jefferson Davis counties. The appellees all live in Lawrence county. The fire was set out by one of the appellees, for whose conduct Riley and the other appellee are alleged to be responsible, in dry grass on Riley's land near the bridge, and is alleged to have been wantonly, negligently, and carelessly allowed to be communicated to the bridge. It does not appear in which of the counties the fire was set out.
On motion by the appellees, the case was transferred to the circuit court of Lawrence county over the objection of the appellant, where it was tried, and judgment was rendered for the appellees. The claim of the appellees for a change of venue is based on the provision of section 1, chapter 155, Laws of 1926, Hemingway's 1927 Code, section 500, that, "if a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, . . . the venue shall be changed, on...
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