Mississippi Power Co. v. Leggett

• Decision Date: 03 April 1967
• Docket Number: No. 44310,44310
• Parties: MISSISSIPPI POWER COMPANY, a Corporation v. T. Ford LEGGETT, Jr., and Wife, Shirley W. Leggett.
• Court: Mississippi Supreme Court

Page 475

197 So.2d 475

MISSISSIPPI POWER COMPANY, a Corporation v. T. Ford LEGGETT, Jr., and Wife, Shirley W. Leggett.

No. 44310.

Supreme Court of Mississippi.

April 3, 1967.

Eaton, Cottrell, Galloway & Lang, Gulfport, Deavours & Hilbun, Laurel, for appellant.

Boyd, Holifield & Harper, Laurel, for appellees.

BRADY, Justice:

This is an appeal by the Mississippi Power Company from a permanent writ of prohibition issued by the Circuit Court of the Second Circuit Court District of Jones County, Mississippi, prohibiting appellant from cutting and keeping clear any and all 'danger trees' adjacent to a 125 foot strip of land sought to be acquired as an easement for right-of-way purposes across appellees' land. The pertinent facts are as follows:

Appellees are the owners of a large tract of land situated a few miles east of Laurel. This land is presently being utilized as a tree farm and has a considerable growth of pine trees of various sizes over most of it. Appellant filed the essential condemnation pleadings in order to condemn a right-of-way 125 feet in width across appellees' land. The application for eminent domain definitely and accurately described the right-of-way sought to be acquired. It also sought the right of reasonable ingress and egress across appellees' land to and from the right-of-way.

The trial court in issuing its permanent writ of prohibition specifically recognized appellant's right to proceed with the acquisition of the basic 125 foot right-of-way and further recognized that under our statutes appellant has the general right to condemn 'danger trees' located on property adjacent to such right-of-way. In this basic assumption the court was correct. The trial court ruled, however, that under Mississippi Code Annotated section 2751 (1956), the language of the eminent domain application was too vague and ambiguous to adequately advise appellees as to which trees were to be presently condemned and severed as 'danger trees' as well as those which might be cut in the future.

Appellant's application for eminent domain defined 'danger trees' as follows:

The term 'danger trees' shall mean any and all trees now or hereafter growing beyond the limits of said right-of-way, any part of which would, in falling directly toward the line, strike any structure or any conductor of said line, or come within five (5) feet of any conductor or structure.

The trial court was of the opinion that this language in the application failed to comply with that portion of section 2751, supra, which provides as follows:

When any person or corporation having the right so to do shall desire to exercise the right of eminent domain, he or it shall make application therefor in writing, and the owners of the property sought to be condemned and mortgagees, trustees, or other persons having an interest therein or a lien thereon, shall be made defendants thereto, which shall state with certainty the right and describe the property sought to be condemned, showing that of each defendant separately. (Emphasis added.)

The basic issue presented for our determination is whether the description in appellant's application complies with the basic requirements set forth in section 2751, supra, insofar as certainty in the description of 'danger trees' is concerned.

There are at least two somewhat conflicting rules with reference to the sufficiency of the description of 'danger trees' in applications for eminent domain. Appellant urges strenuously that Alabama has wisely and properly settled this question in Wiggins v. Alabama Power Company, 214 Ala. 160, 107 So. 85 (1926), in which it was held that the application was sufficient if it described the right to remove 'danger trees' in the language of the statute. There the court said:

It is not needful to identify each standing tree proposed to be cut, nor the number thereof; neither is it necessary to further define the width of the zone within which the trees may be cut. The * * * limitation to trees which endanger the lines and works located thereon identifies such trees with sufficient certainty. (214 Ala. at 161, 107 So. at 86.)

It should be noted that in the Wiggins case the condemnor in its eminent domain application merely tracked the language of the Alabama statute. No court could, in good conscience, hold that the application was insufficient for lack of description when it utilized verbatim the language of the statute. We are of the opinion that the Alabama rule announced in the Wiggins case is not applicable in Mississippi for two reasons. First, it is predicated upon the express language of a statute, and second, it is far too liberal under a reasonable interpretation of the word 'certainty' found in the Mississippi statute. For these reasons the additional cases of Alabama Power Company v. Matthews, 226 Ala. 614, 147 So. 889 (1933) and Collins v. Alabama Power Company, 214 Ala. 643, 108 So. 868, 46 A.L.R. 1459 (1926), are not applicable in the present case.

The opposite and more conservative rule has been adopted in Florida as reflected in Florida Power Corporation v. Wenzel, 113 So.2d 747 (Fla.App.1959). The Florida rule is excoriated by appellant as being a maverick decision and in no way binding upon this Court. In the Wenzel case the application for eminent domain specifically stated that twenty 'danger trees' were to be cut adjacent to the right-of-way. There the landowner at least knew the number of 'danger trees' which were to be presently condemned and severed. The Florida court upheld the right to condemn 'danger trees' situated off the right-of-way as being within the scope of the Florida statute. However, in reversing on the insufficiency of the description in the application, the court stated that the application should be amended to show specifically the land area within which the license was to be exercised or the twenty trees were to be cut.

Appellant urges that the above holding by the Florida court is pure dictum in addition to being bad law. With this contention we cannot agree. We are of the opinion, however, that the Florida rule is equally inapplicable in Mississippi for the following reason. We do not feel that it is essential under section 2751, supra, for appellant in the present case to specifically designate the entire area adjacent to the 125 foot right-of-way where 'danger trees' are to be condemned and severed.

Although not cited in litigant's briefs, the New York case of Bell Telephone Company of Buffalo v. Parker, 187 N.Y. 299, 79 N.E. 1008 (1907), is more harmonious with the requirements of section 2751, supra, than are the rules adopted in either the Alabama or the Florida case. There condemnation proceedings were brought under the express provisions of a New York statute which required a specific description of the...