Lowndes County, Dist. 5 v. Mississippi State Highway Commission, 45260
| Decision Date | 17 March 1969 |
| Docket Number | No. 45260,45260 |
| Citation | 220 So.2d 349 |
| Parties | LOWNDES COUNTY, Mississippi, DISTRICT 5 v. MISSISSIPPI STATE HIGHWAY COMMISSION et al. |
| Court | Mississippi Supreme Court |
W. H. Jolly, Columbus, for appellant.
Joe T. Patterson, Atty. Gen., by Martin R. McLendon, Asst. Atty. Gen., Jackson, for appellees.
Lowndes County brought this action in the Chancery Court of Lowndes County against the Mississippi State Highway Commission, appellee, and Bernie B. Beirman. The chancery court sustained the Commission's general demurrer to the bill of complaint, and granted the county an interlocutory appeal to determine the controlling principles of law. Beirman is not a party to this appeal.
The bill of complaint charged as follows: The G M & O Railroad crosses U.S. Highway 82 by an overpass constructed and maintained by the railroad near the Town of Mayhew. On November 27, 1966, Beirman was operating his heavily loaded truck on this highway. The load was so high that it was impossible for the truck to be driven under the overpass, and Beirman knew at the time that his vehicle could not negotiate the crossing at that point. Nevertheless, he negligently drove it into the overpass, severly damaging it and blocking the highway to other traffic. Highway 82 is a part of the state highway system and under the jurisdiction of the commission. It was the commission's duty to maintain the road at this place, and subsequent to the negligent acts of Beirman, the commission, through its agents and employees, took over a 1.24 mile section of county-maintained road and used it for a detour, routing highway traffic over the county road. Traffic could have been directed around the overpass by way of the highways. Nevertheless the commission, by its agents, routed heavy vehicles with heavy loads over the county road, knowing full well that it was not built to support such traffic. The bill averred that these acts of the commission (through its agents) amounted to negligence for which the commission is liable, and that both defendants are jointly and severally responsible. After the detour was abandoned, the county repaired the road at a cost of $7480, for which it sought recovery.
The bill of complaint also averred that Code section 8034 makes it the duty of the highway department when abandoning a detour to replace it in as good condition as it was before its use as a detour, and that the commission had refused to repair the detour or to pay for the damages to it. Mississippi Code 1942 Annotated section 8034 (1956) provides:
The director is hereby authorized to close highways for construction purposes and in emergencies, and shall select, lay out, maintain and keep in as good repair as possible suitable detours, by the most practicable route, where same are necessary for the public convenience while any sections of said highways or roads are being improved or constructed or closed, and the director shall place or cause to be placed explicit directions to the traveling public during repair of said highway or road under process of construction; provided, however, that as far as practical roads already laid out shall be connected with and used for such detours.
The director is hereby authorized, subject to the approval of the commission, to enter into agreements, spread on the minutes of both boards, with the local road authorities of the county or counties in which construction or maintenance work is to be done, to pay all or any part of the cost of laying out or maintaining said detours. All expenses to the state of laying out and maintaining said detours shall be paid out of the state highway funds. The director is also authorized, subject to the approval of the commission, to make reasonable rules and regulations to keep highways under construction open to traffic where such action is deemed to be practical and desirable.
If any county-maintained road or municipally-maintained street is used temporarily as a part of a state highway detour, it shall be the duty of the highway department when said detour in abandoned as such to place the same in as good condition as said road or...
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