Mississippi State Highway Commission v. West

• Decision Date: 28 February 1938
• Docket Number: 33063
• Citation: 179 So. 279,181 Miss. 206
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. WEST et al

179 So. 279

181 Miss. 206

MISSISSIPPI STATE HIGHWAY COMMISSION v. WEST et al

No. 33063

Supreme Court of Mississippi

February 28, 1938

Division A

1 EVIDENCE.

An oral agreement between lessee and sublessee for continuing sublessee's business uninterrupted during following year was inconsistent with stipulation contained in subsequent written agreement providing that sublessee's tenancy was contingent upon cancellation of lessee's lease, so that terms of subsequent written agreement controlled.

2. EMINENT DOMAIN.

Where written agreement between lessee and sublessee provided that sublease should become void if original lease between lessee and lessor was canceled and where original lease had been canceled and sublease terminated, sublessees were not "necessary parties" to proceedings to condemn land notwithstanding sublessees continued in possession of premises, since they had no interest in the premises at time of institution of condemnation proceeding.

3. EMINENT DOMAIN.

Where sublease had been properly terminated prior to institution of condemnation proceeding, instruction that sublessees were entitled to due compensation for value of property to be taken and for damages, if any, which might result to them as a consequence of the taking, constituted reversible error, since sublessees did not own property and were entitled to no compensation for its value.

4. EMINENT DOMAIN.

The giving of instruction in favor of defendants in condemnation proceeding is mandatory under all circumstances only as to a justice of the peace who acts ministerially rather than judicially in presiding over a special court of eminent domain (Code 1930, section 1491).

5. EMINENT DOMAIN.

On appeal to the circuit court, the issues in condemnation proceedings are tried de novo (Code 1930, section 1497).

6. EMINENT DOMAIN.

A condemner must determine at his peril the names of the owner and other persons having an interest in or lien on the premises sought to be condemned (Code 1930, section 1482).

7. EMINENT DOMAIN.

The requirement that a condemner must determine at his peril the names of the owner and other person having an interest in or lien on premises sought to be condemned does not mean that if the condemner should name as a party defendant some person who has neither the title nor an Interest, he should nevertheless pay substantial compensation to such person (Code 1930, section 1482).

8. EMINENT DOMAIN.

The rule that averments of petition to condemn land are binding on petitioner and that defendants are not required to establish their title does not preclude the denial of substantial damages, where proof offered by a defendant affirmatively shows that he neither owns land nor claims to be owner thereof and holds neither a lien nor an unexpired lease thereon (Code 1930, section 1482).

9 ESTOPPEL.

Generally, a party is estopped from taking a position which is inconsistent with one previously assumed in the course of the same action or proceeding.

10. PLEADING.

A party is bound by allegations or admissions in his own pleadings and by admissions or agreements of facts but not by admission as to law.

11. ESTOPPEL.

Ordinarily, a person setting up an estoppel must have teen induced to alter his position in such a way that he will be injured if the other person is not held to the admission or attitude on which the estoppel is predicated.

12. ESTOPPEL.

The doctrine of estoppel by judicial admissions does not apply in condemnation proceeding where petitioner is required by statute to name as defendants all persons who may have an interest in the property sought to be condemned and where the petitioner is required to act at its peril in seeing to it that all such persons are so named (Code 1930, section 1482).

13. EMINENT DOMAIN.

Where sublease had been terminated in accordance with terms thereof prior to institution of proceeding to condemn land for highway purposes, but the sublessees were made parties to condemnation proceeding, the sublessees were entitled to recover at most only nominal damages and costs (Code 1930, section 1482).

HON. ARTHUR G. BUSBY, Judge.

APPEAL from the circuit court of Clarke county, HON. ARTHUR G. BUSBY, Judge.

Proceedings in eminent domain by the Mississippi State Highway Commission against W. Z. West and others to acquire land for highway purposes. From the judgment, the petitioner appeals. Judgment reversed and judgment rendered.

Reversed, and judgment here for appellees accordingly.

W. M. Edwards, of Shubuta, and W. D. Conn, Jr., Assistant Attorney-General, for appellant.

In Schreiber, et al. v. Chicago and E. Railroad Co., 115 Ill. 340, 3 N.E. 427, the facts were in substance, that the railroad company had condemned title to real property for the purpose of constructing a railroad. At the time of the condemnation the premises had been leased to Shreiber. The rights of both the owner and his lessee were sought to be condemned at the same time. A hearing was had as to the owner of the premises at one term of court and his damages were adjudicated. The rights of the lessee were not adjudicated until twelve months later. Pending the litigation the lessee's term expired and had expired some six months prior to the adjudication of his damages.

The trial court held "that the appellants had no further right to possession as lessees and that they could not recover for the value of the improvements and the cost of the removal of the machinery and for the damages to their business." On appeal, the court said "When the petition was filed there were some six months of an unexpired term, of which the tenants could not have been deprived against their consent. But, with the company's consent as implied by them not molesting him, they had the full enjoyment of that unexpired term. It is not reasonable that a party should ask to be compensated for the loss of an unexpired term, when, in fact, he has had the full enjoyment of his entire term."

Los Angeles County Board Control Dist. v. Andrews, 205 P. 1085; Cincinnati v. Schmidt, 14 Ohio App. 426; Re: Widening 3rd Street in the City of St. Paul, 228 N.W. 162.

On the facts of this case, which are in no wise in dispute, appellees were either trespassers or tenants by sufferance,--there being little, if any, difference in the rights of either with respect to possession of the premises.

16 R. C. L. 617, sec. 97; Harlan v. Veldt, 6 Ohio App. 45; Tonkel v. Riteman, 163 Miss. 216, 141 So. 344.

By appellees' own admissions, it is clear that their lease contract, by Seetion 12 thereof, contained a contingent limitation, namely, that if lessors' contract was terminated in any way, then the happenings of that contingency would ipso facto terminate theirs. And certainly when the contingency occurred, all rights under the contract, including the right of occupancy, were terminated. They admitted that the oil company had given them notice to vacate and they had refused to do so; that more than 90 days had expired since the notice was given before eminent domain proceedings were instituted.

Appellees had the full benefit of their lease contract. The lease period had been terminated just exactly as they had solemnly agreed that it could be terminated; and at the time of the condemnation proceedings, there was no basis, either in fact or law, to appellees' claim to an interest in these premises.

Before one is entitled to damages, and entitled to the statutory instruction, he must disclose his interest and a price tag of some. sort must be placed thereon. If he can disclose no interest whatsoever, then what is to be paid for?

Under the facts of this case, and there is no single fact in dispute, appellant submits that appellees have conclusively shown that they had no interest for which damages were allowable and it was improper for the court to refuse the instruction requested by appellant to direct the jury to return a verdict for the plaintiff; and by the same token, it was error for the court to give the one instruction requested by the appellees, which was the instruction set out in the statute.

On the record now before the court, appellant submits that the court should reverse the judgment appealed from and enter a judgment here for appellant.

Hal Case, of Quitman, for appellees.

In the case of Department of Public Works and Buildings of State of Illinois v. Sohm, 315 Ill. 478, 146 N.E. 518, it is said in the opinion of the court as follows: "The sole object of a petition to condemn land for public use is to ascertain the compensation to be paid. The power to take private property whenever necessary for public use is inherent in the state, and Chapter 47 of the Revised Statutes has provided for the exercise of that power. The proceeding is special, statutory, and summary, its sole object is to ascertain the compensation to be paid, and the amount is the only issue. Metropolitan Elevated Railway Co. v. Esehner, 232 Ill. 210, 83 N.E. 809; Chicago &amp Milwaukee Electric Railway Co. v. Diver, 213 Ill. 26, 72 N.E. 758; Leiburn v. Chicago & Southside Rapid Transit Co., 141 Ill. 140, 30 N.E. 514. The petitioner is required at its peril to ascertain the name in the petition the true owner of the land sought to be condemned and taken, and the person so named as the owner in the petition is not required to prove title. Chicago & Milwaukee Electric Railroad Co. v. Diver, supra; St. Louis & Southeastern Railway Co. v. Teters, 68 Ill. 144; Peora, Pekin & Jacksonville Railroad Co. v. Laurie, 63 Ill. 264. Averments of the petition as to the nature or extent of the estate or title of the defendants are not binding on the defendants, and upon a proper issue the court may determine such questions; but such averments are binding on the...