Panhandle Oil Co. v. Trigg

• Decision Date: 21 November 1927
• Docket Number: 26600
• Citation: 114 So. 625,148 Miss. 306
• Court: Mississippi Supreme Court
• Parties: PANHANDLE OIL CO. et al. v. TRIGG. [*]

114 So. 625

148 Miss. 306

PANHANDLE OIL CO. et al. v. TRIGG. ^[*]

No. 26600

Supreme Court of Mississippi

November 21, 1927

(Division A.)

1. DEDICATION, Landowner, by platting land into lots and blocks with streets shown thereon, and selling lots with reference to plat, dedicated streets to public use "dedication."

Where landowner platted land into lots and blocks, with streets and alleys shown thereon, and sold lots with reference to plat this was "dedication" of streets to public use.

2. MUNICIPAL CORPORATIONS. Purchasers of lots sold with reference to plat acquired fee to center of abutting streets dedicated to public use.

Where landowner, by platting land into lots and blocks, with streets and alleys shown thereon, and selling lots with reference to plat, dedicated streets to public use, purchasers of lots acquired fee of abutting streets to center thereof.

3. MUNICIPAL CORPORATIONS. Private person could not maintain action to abate obstruction of street, where he sustained no special damage differing from that of public.

Landowner, who had platted land and dedicated streets to public use, and sold lots with reference to plat, could not maintain an action to abate an obstruction of street, where there was no allegation that he had sustained any special damage, or had suffered any injury or damage differing in kind from that suffered by general public.

Division A

APPEAL from chancery court of Wayne county.

HON. V. A. GRIFFITH, Chancellor.

Suit by W. S. Trigg against the Panhandle Oil Company and others. From a decree overruling a demurrer to the complaint, defendants appeal. Reversed and remanded, with permission to amend.

Decree reversed, and cause remanded.

Butler & Snow, for appellants.

When the appellee platted the lands into lots and squares and streets and sold the property with reference thereto, it amounted in law to an immediate and irrevocable dedication of the streets binding upon both the vendor and vendee. Harrison v. Seale, 66 Miss. 129; Witherspoon v. Meridian, 69 Miss. 228; Meridian v. Poole, 88 Miss. 109; Dillon on Municipal Corporations, sec. 1083.

When he sold the lots with reference to this plat he conveyed to the grantee the fee of the abutting street to the center thereof. Harrison County v. Seale, 66 Miss. 129; Dillon on Municipal Corporations, secs. 1076, 1084; Elliot on Roads and Streets, sec. 164; 29 C. J. 540; Abbott on Municipal Corporations, p. 1794, et seq.

That under such a dedication as is shown in this case the owner of property abutting on the Clara and Waynesboro road has the fee in the road or street to the center thereof, subject to the public use, is clearly recognized by such cases as Meridian v. Telephone Company, 72 Miss. 918; Telephone Company v. Cassidy, 78 Miss. 666; Brahan v. Telephone Company, 97 Miss. 326.

It is not shown that appellee owns the lot on the opposite side of the street from the lot in question, so it may be safely affirmed that appellee has no interest in the fee to the street or roadway in front of the lot rented by the Panhandle Oil Company.

His right in the highway at this particular point is the same as that of any other of the public. In other words, he simply has such rights in the street and highway as the public generally has. He has no private right to protect.

We think it perfectly well settled by the authorities in this state and elsewhere that injunction will not lie at the suit of a private person to abate an obstruction of the character complained of in the present suit, unless such person alleges and shows some special damage peculiar to himself. That such an obstruction constitutes a public nuisance is perfectly well settled. Dillon on Municipal Corporation, secs. 1130, 1131; Abbott on Municipal Corporations, p. 1959; Elliot on Roads and Streets, secs. 850, 850-A, p. 1959; Greene v. Lake, 54 Miss. 540; See, also, Shoemaker v. Coleman, 94 Miss. 619; City of Jackson v. Welch, 136 Miss. 223; 13 R. C. L., p. 227; 27 Am. & Eng. Ency. of Law, p. 162; 28 Cyc. 901 and 29 Cyc. 1208; Dillon on Municipal Corporations, sec. 1132.

For a complete discussion as to when damages may be said to be special and peculiar to the plaintiff, see Cram v. Laconia (N. H.), 57 L.Ed. 282. And it may be stated in passing that the rule with reference to special damages is the same whether the fee is in the abutting owner or the public. Dillon on Municipal Corporations, section 1136.

Heidelberg & Clark, for appellee.

Right or Title Acquired Under Common Law Dedication. See 18 C. J., p. 110, par. 129, and authorities there cited. In Covington County v. Collins, 92 Miss. 330, on page 339, the court said: "The Highways belong in common to all the public, and to any one of the public, and any one of the public has the right to object to any but the proper use of that which is the common property of all."

If a dedication is made for a specific and defined purpose, neither the legislature, the municipality, or its successors, or the general public has any power for any other purpose than the one designated. Rowzee v. Pierce, 75 Miss. 846; Jones v. Jackson, 104 Miss. 449; 18 C. J., p. 127, par. 167, where numerous authorities are given, showing that this is the rule everywhere.

Proceedings to enforce and preserve use--who may maintain? The dedicator has such an interest in the property dedicated as to entitle him to enforce the uses for which the dedication was made and to prevent a diversion thereof. Rowzee v. Pierce, 75 Miss. 846. And this applies whether against the dedicatee or some third person who is interfering with the use of the property. 18 C. J., p. 130, par. 173, and annotations.

So far as we know the appellant does not contend that anyone has a right to appropriate a highway for his own personal use; but is contending that only the board of supervisors can bring suit against the wrongdoer; unless the party bringing the suit shows that he has been damaged in some special way, not common to the public. We have already called the court's attention to the case of Covington County v. Collins, 92 Miss. 330, that the highways belong to all, and to any one of the public, and that any one of the public has a right to object. But in this case it is shown clearly that the appellee, complainant below, has a special interest in keeping this street open the full width; for he alleges in his bill that he was the owner of the land on which the town stands before it was built; that he platted it into lots and streets, and sold off lots; and still has other lots on this very street. It is true he does not state that he did this for profit, or that he will lose money by having the streets obstructed, but what other inference could be drawn? Here is a street sixty feet wide. If one person can reach out on one side and take twenty feet for his own private use, then the man on the other side may do likewise, and thereby reduce the street to a mere lane or alley; and if the board of supervisors should say: "We are not interested; a twenty-foot road is all we want," then the man having his lots for sale, or for use by himself, would lose the benefit of the use of his sixty-foot street, and his property would be damaged in value, and he would suffer a special damage thereby. See 18 C. J. 131, par. 175.

If the fee to the street had been conveyed to the county or the municipality there would be a different rule, according to some authorities. Here the fee never passed to the county--the public, or to any one else, and to allow any one else to take the property for private use would be the taking of property without due compensation.

But according to good authorities even the ownership of the fee by the county, the public or the municipality, does not cut off the right of any individual of the public to bring the suit, even though having no special interest in the street or way, 18 C. J., p. 132, par. 176, and note 65; In Re Pearl Street, 111 Pa. 565; Commonwealth v. Allen, 148 Pa. 358, 16 L. R. A. 148; 33 A. S. R. 830. This last authority is cited in the case of Covington County v. Collins, above referred to.

Argued orally by George Butler, for appellant.

OPINION

COOK, J.

In the chancery court of Wayne county, the appellee, W. S. Trigg, filed a bill of complaint against the Panhandle Oil Company and J. H. Lawrence, its agent in charge of its business in Wayne county, and Ed Reynolds, a citizen of the county, alleging, in substance, that in the year 1913 he was the owner of a large part of sections 9 and 16, township 17 north, range 7 west, in said county, on which the town of Clara is now situated; that in that year he had the said lands surveyed and platted into town lots and blocks, with streets designated and laid out between the said lots and blocks, and had a map thereof placed of record in the chancery clerk's office of said county, and then dedicated the streets for public use, as highways, by opening them up and selling lots fronting on the same to divers individuals, retaining some lots for his own use. It was further alleged that, among the streets so dedicated, one is known as the "Clara and Waynesboro Road;" that this street or road runs through and divides the business part of the said town of Clara, and was surveyed and platted to be sixty feet wide through the business part of said town, and was opened up sixty feet in width; that this street or road has since been used and worked as a street and highway for that width; and that the complainant now owns some lots fronting on that street.

It was further alleged that among the lots and blocks platted and heretofore sold by the complainant is lot 6 in block P, which has a frontage of sixty feet on said Clara and Waynesboro road; that in the latter part of the year 1926 the then...