Laurel Imp. Co. v. Rowell

• Decision Date: 16 May 1904
• Citation: 84 Miss. 435,36 So. 543
• Court: Mississippi Supreme Court
• Parties: CITY OF LAUREL ET AL. v. HENRY H. ROWELL ET AL

36 So. 543

84 Miss. 435

CITY OF LAUREL ET AL. v. HENRY H. ROWELL ET AL

Supreme Court of Mississippi

May 16, 1904

FROM the chancery court of Jones county. HON. STONE DEAVOURS Chancellor.

Rowell and another, appellees, were complainants, and the city of Laurel and the Laurel Improvement Company, a corporation appellants, were defendants in the court below. From a decree in complainants' favor the defendants appealed to the supreme court.

Post street in the city of Laurel, Mississippi, is a narrow street running east and west, about 200 feet long, connecting East and Pine streets. The Laurel Improvement Company owns all the land abutting on the street on the north side, and appellees own all the land abutting it on the south side, and have erected a hotel and other houses thereon. On the 7th day of September, 1903, the board of mayor and aldermen passed an ordinance vacating and closing Post street, and the Laurel Improvement Company, claiming to own the land vacated, built a fence across each end of it, and erected some buildings in it; whereupon appellees filed their bill in this case against the city of Laurel and the Laurel Improvement Company setting up these facts, and averring that when they bought their property and improved it said street was open to travel; that the city of Laurel had worked it for more than ten years; that it was laid down on the map of the city of Laurel as a street; that it had been used and recognized by the city of Laurel and the public as one of the streets of said city for more than ten years. The prayer of the bill was that the city of Laurel and the Laurel Improvement Company be enjoined from further meddling with the rights of complainants, and commanded to reopen and reestablish the said street, and that the Laurel Improvement Company be required to remove all obstructions placed by it in said street. The defendants filed separate answers, denying generally the right of complainants to the relief sought, and denying that they were deprived of access to their property by the closing of said street. The city of Laurel counted upon Code 1892, § 2945, as authorizing the passage of the ordinance. Affidavits were taken on a motion to dissolve the injunction. The motion to dissolve the injunction was overruled, and defendants were granted an appeal to the supreme court to settle the principles involved in the case.

Case affirmed and remanded.

Mayes &amp Longstreet, and J. M. Jayne, Jr., for appellants.

It is expressly admitted in the brief of opposite counsel that the city of Laurel is working under the code, and sec. 2945 expressly provides that municipalities shall have the power to close and vacate any street or alley or any portion thereof.

The further objection is made that this ordinance is void and forms the ground for an injunction, because it was made without condemnation proceedings and without compensation to the complainants.

In this connection the court will note that the complainants are not deprived of access to their property. The vacation of Post street still leaves them their front on East Front street and their front on Pine street and a ten-foot alleyway on the old Post street front. As to the point involved, see 15 Am. &amp Eng. Ency. Law, 402, and cases cited therein; Gerhard v. Sekonk Commrs., 15 R. I., 334; Clark v. Providence, 16 R. I., 337; Levee District v. Farmer, 101 Cal. 178; Bradbury v. Walton, 94 Ky. 167.

It seems to be clear that the vacation of a street under the ordinary frame of constitution, which provides that private property shall not be taken for a public use without compensation first made, does not entitle the abutting proprietors to compensation, since by the vacation no property of the abutting proprietor is taken, such proprietor not having any such special property in the street as a street as falls within the protection of the constitutional principle.

That this is a correct legal proposition is furthermore recognized in our own case of Vicksburg v. Herman, 72 Miss. 211.

Is this rule altered by the fact that our constitution of 1890 is made broader, and provides that private property shall not be damaged for a public use without compensation first made? As decided in the Vicksburg case above, the word "damaged" was introduced into this provision in order to cover consequential damages inflicted upon abutting property where no part of that property was itself taken in the ordinary sense of this word. That provision was construed and applied in the Vicksburg case, 72 Miss. 211. But the effect of the term as implied in our constitution and as construed and applied in that case, is not to alter the rule declared above; it does not invest the abutting proprietor with a property right in the street as a street. The effect is quite different; it is to render the condemning corporation, whether a business or municipal corporation, liable for consequential damages to property which is not taken. The constitution by its very terms makes a difference between the taking of property and the damaging of property. But even our broad and liberal constitutional provision does not reach this case. It does not reach it for the reason that the vacation of a street is not the taking or damaging of property lying adjacent thereto, for a public use.

Whatever may be the effect and meaning of the constitutional provision otherwise, it only applies in those instances where what is done is done for the use of the public. The condemnation of land whereon to establish a street is a taking of it for the public use, because the object of its taking is that the public shall use it as a street. So in the Vicksburg case, the altering of the grade of the street, as was there done, was a taking for a public use, because the street as altered continued to be used by the public and the alteration of the street was for the public's more convenient continued use.

But the vacation of a street is the cessation of public use. The very fact imports an abandonment of its use by the public. The cessation merely of the public use of property is not such a thing as gives the right of the constitutional protection.

This injunction should have been dissolved because it was mandatory and was improvidently issued. It should not issue until the case has been fully presented. Gulf Coast Co. v. Bowers, 80 Miss. 570.

J. P. Thornton, and T. H. Oden, for appellees.

In order to fully appreciate the controlling powers of a city over its streets, alleys, and highways, we must observe who are interested in them, and what interest the city and others have in them. This subject has already been fully and ably discussed by this court, in Meridian v. Telegraph Co., 72 Miss. 910, and Theobold v. L., N. O. & T Ry. Co., 66 Miss. 279; and in the latter case, at page 287, the court says: "The laying out of a public street creates two coextensive...