Mississippi State Highway Commission v. Cohn, 45125

• Court: Mississippi Supreme Court
• Writing for the Court: PATTERSON
• Citation: Mississippi State Highway Commission v. Cohn, 217 So.2d 528 (Miss. 1969)
• Decision Date: 06 January 1969
• Docket Number: No. 45125,45125
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION, Defendant/Appellant, v. Aubrey COHN and Rose T. Cohn, Plaintiffs/Appellees.

Page 528

217 So.2d 528

MISSISSIPPI STATE HIGHWAY COMMISSION, Defendant/Appellant, v. Aubrey COHN and Rose T. Cohn, Plaintiffs/Appellees.

No. 45125.

Supreme Court of Mississippi.

Jan. 6, 1969.

Frederick C. Berger, Natchez, Joe T. Patterson, Atty. Gen., by Martin R. McLendon, Asst. Atty. Gen., Jackson, for appellant.

Brunini, Everett, Grantham & Quin, Vicksburg, Joe T. Drake, Port Gibson, for appellees.

PATTERSON, Justice.

This is an appeal by the Mississippi State Highway Commission from a judgment of $19,692.63 against it in the Circuit Court of Claiborne County in favor of Aubrey Cohn and Rose T. Cohn for damage to their land.

Aubrey Cohn, his wife and his mother, owners of a tract of land in Claiborne County through which the Natchez Trace Parkway was constructed, sued the Mississippi State Highway Commission for breach of contract and resultant damages due to its failure to provide cattle underpasses beneath the parkway. This breach, it was alleged, amounted to a taking by the defendant of certain property rights and interests therein of the plaintiffs without just compensation.

The case was presented and submitted to the jury on the theory of breach of contract. However, the highway commission's first defense was that of a demurrer which was made a part of its answer. The action of the trial court in overruling this demurrer is assigned as error. Since it is our opinion that the issues raised by the demurrer are dispositive of the suit, we do not elaborate upon the other assignments of error. The declaration alleges, excluding its formal parts, the following for the plaintiffs' cause of action:

III.

That Defendant has * * * appropriated * * * certain property rights and interests of Plaintiffs, without just compensation. * * *

IV.

That Defendant * * * was obligated to acquire * * * certain lands which were * * * to be conveyed to the United States * * * for the Natchez Trace Parkway. * * *

V.

That on the 17th day of August, 1956, after negotiations * * * there was executed a warranty deed, conveying to the State * * * land for the * * * Parkway by Plaintiffs.

VI.

That among the provisions of said conveyance was a provision that certain cattle underpasses would be constructed at * * * the purpose of this being that * * * the grantors * * * owned properties on both sides * * * of land so conveyed, that * * * access would be given * * * livestock and for farm * * * equipment; and also the parties were orally assured that the underpasses would be sufficient for the passage * * * on the basis of these representations * * * they executed the deed. * * *

VII.

* * * by instrument dated February 1, 1963, the State of Mississippi conveyed to the United States Government. * * *

IX.

That by the * * * conveyance by the State * * * to the United States * * * the Defendant did cause the wording * * * regarding the cattle underpasses to be changed, so that there was conveyed * * * to the United States * * * rights not included in the deed to the State * * * in that the deed to the United States * * * did not provide for cattle underpasses to be constructed * * * as provided for in the deed to the State * * * and in the representations made by the Defendant; but rather provided only that the adjoining land owners could use certain drainage structures as cattle underpasses;

X.

* * * said drainage structures which were supposed to be * * * cattle underpasses have been completed * * * as constructed * * * are inaccessible * * * of driving cattle * * * or for passage of farm vehicles * * * are filled with dirt * * * and otherwise are completely unusable for the purposes provided in the deed by the Plaintiffs * * * to the State * * * and are contrary thereto and * * * to the representations made by Defendant to the grantors. * * *

XI.

That by reason of the * * * location and construction of the * * * structures, * * * Plaintiff's lands have been damaged * * * even though the same is in accordance with the terms of the deed from the State * * * to the United States * * * the latter having constructed the same so that they were not in violation of the terms of the deed to it; (Emphasis added.)

XII.

That by reason of the positive action of the State of Mississippi * * * in executing said deed changing the terms thereof, that Defendant has appropriated * * * the rights and properties of Plaintiffs, and no compensation has been paid therefore. * * * (Emphasis added.)

An amendment was made to the declaration which alleged that additional oral assurances were made in the course of negotiations with regard to the size of the cattle underpasses and that the plaintiffs relied thereon as they did not have full information regarding the construction plans and details of the structures.

A copy of the deed from the plaintiffs to the State of Mississippi was attached as an exhibit to the declaration as was the deed from the State of Mississippi to the United States. The gist of the declaration is the 'positive action of the State of Mississippi * * * in executing said deed changing the terms thereof * * *' contrary to the terms of the deed and the oral assurances of the defendant.

The demurrer interposed by the defendant of course admits all things well pled within the declaration for the purpose of determining whether a cause of action has been stated. The allegations within the declaration referring to oral assurances, reliance on oral representations made by the agents of the defendant, and the beliefs of the plaintiffs stemming therefrom, are thus admitted if in fact they are well pled.

By numerous decisions of this Court the prior negotiations of parties become merged in the contract of conveyance when it is executed. West v. Arrington, 183 So.2d 824 (Miss.1966); Brown v. King, 214 Miss. 437, 58 So.2d 922 (1952); and State Highway Department v. Duckworth, 178 Miss. 35, 172 So. 148 (1937). In the absence of fraud or mutual mistake, and none is here alleged, parol evidence directed to the prior oral representations could not have been introduced at the trial to vary the terms of the deed by the plaintiffs to the defendant. Since these allegations are incapable of proof by evidence, they are not well pled. Bower v. Chess & Wymand Co., 83 Miss. 218, 35 So. 444 (1903).

Aside from the above the terms of the deed by the plaintiffs to the defendant contravene the allegations of the declaration to which it is an exhibit, as one of its provisions is the following:

It is further understood and agreed that this instrument constitutes the entire agreement between the Grantors and the Grantee, except as provided herein, there being no oral agreement or representations of any kind.

The rule is well settled that the contents of an exhibit to a declaration control over the allegations thereof if there is a conflict between the two. Paulk v. Housing Authority of the City of Tupelo, 195 So.2d 488 (Miss.1967); Williams v. Wilson, 241 Miss. 155, 129 So.2d 125 (1961); and North American Life Ins. Co. v. Smith, 178 Miss. 238, 172 So. 135 (1937). For the above reasons, either merger or conflict, it is our opinion that the allegations of oral representations are not well plead and cannot be considered by this Court in passing upon the sufficiency of the declaration.

The terms of the deed to the defendant disclose that it was for a total consideration of $38,827.50 and that this amount was in full payment of the grant as well as for settlement of any claims for damages accrued or to accrue to the grantors on account of the construction of the parkway or any other damages, rights, or claims whatsoever. The recitation in the deed which it is alleged the defendant (here the grantee) varied in its subsequent conveyance to the United States is:

It is further understood and agreed that the...