Poythress v. Mobile & O.R. Co.

• Decision Date: 13 April 1908
• Docket Number: 13,262
• Parties: JOHN D. POYTHRESS ET AL. v. MOBILE & OHIO RAILROAD COMPANY ET AL
• Court: Mississippi Supreme Court

46 So. 139

92 Miss. 638

JOHN D. POYTHRESS ET AL. v. MOBILE & OHIO RAILROAD COMPANY ET AL

No. 13,262

Supreme Court of Mississippi

April 13, 1908

FROM the chancery court of Lauderdale county, HON. JAMES L MCCASKILL, Chancellor.

Poythress and another, appellants, were complainants in the court below; the railroad company and the city of Meridian appellees, were defendants there. From a decree in favor of defendants the complainants appealed to the supreme court.

The complainants were the owners of lot 12, of block 25, of the Caldwell survey of the city of Meridian, on which they had a storehouse and were engaged in the mercantile business. The storehouse faced Second street to the south and Twenty-Seventh avenue on the east. The tracks of the Mobile &amp Ohio Railroad Company crossed Twenty-Seventh avenue and Second street just opposite the corner of the store, running diagonally in a northeasterly and southwesterly direction and the railroad company had maintained a crossing on Twenty-Seventh avenue for many, more than ten, years. The railroad company owned a tract of land east of Twenty-Seventh avenue and south of its right of way on which it desired to construct roundhouses, a coal chute, and a large number of side tracks; and in order to more easily approach this lot it had purchased block 31, as shown by the accompanying plat and across block 31 it proposed to lay its tracks. In order to carry out its plans the railroad company proposed to the city that, if the city authorities would permit the closing of Caldwell street and the closing of that portion of Twenty-Seventh avenue between the northern boundary of the right of way at the intersection of Twenty-Seventh avenue and Second street, and the northern line of St. Andrews street, and would provide suitable approaches for an overhead bridge for wagons and pedestrians, the railroad company would at its own expense construct an Overhead bridge across the right of way of the railroad company at Twenty-Ninth avenue. Accordingly the city passed the following ordinance:

"Whereas, the Mobile & Ohio Railroad Company has recently acquired by purchase certain property adjacent to its existing yards and tracks in the city of Meridian, Mississippi, and bounded, generally speaking, by St. Andrews street on the east and Twenty-Seventh avenue on the northeast, for the purpose of enlarging its facilities for repairing, coming, and generally caring for its locomotives and other rolling stock; and

"Whereas, it is absolutely necessary in carrying out of these plans for the addition to its facilities in the city of Meridian to construct certain tracks across Twenty-Seventh avenue, as it now exists at this point; and,

"Whereas, the existing tracks, as well as those necessary to be constructed, will make the crossing of the Mobile & Ohio Railroad yards at Twenty-Seventh avenue dangerous to pedestrians and others traveling over and along side said crossing; and

"Whereas, the Mobile & Ohio Railroad Company is the abutting owner on said Twenty-Seventh avenue, between the west side of the Mobile & Ohio railroad tracks on said avenue and the east side or end of said avenue, and as said abutting owner is desirous that said avenue be closed; and

"Whereas, the officials of the Mobile & Ohio Railroad Company proposed and hereby agree to construct an overhead crossing or bridge, which shall be constructed under plans subject to the approval of the engineer or other competent officer of the city of Meridian, commencing at or near the intersection of Second street and Twenty-Ninth avenue, to a point approximately four hundred feet east of the tracks of the Mobile & Ohio Railroad Company at this point, it being the intention to hereby agree to span said railroad company's tracks by the said overhead bridge as aforesaid, the city agreeing to furnish the right of way necessary for the approaches on either side of the railroad tracks, and in consideration of the premises, and the fact that the said railroad company will construct said aforesaid bridge at the place aforesaid: Therefore

"Section 1. Be it enacted by the mayor and boards of councilmen and aldermen of the city of Meridian, upon the construction and completion of the aforesaid bridge, the said Twenty-Seventh avenue be and is hereby abandoned and closed as a highway in the said city from the east line of the Mobile & Ohio Railroad Company's right of way and other property to the west line thereof, or that part of the Mobile & Ohio Railroad Company's property in the said city crossed by the said Twenty-Seventh avenue.

"Sec. 2. Be it further ordained that this ordinance take effect from and after its approval and publication as required by law in this behalf."

After the adoption of this ordinance complainants filed their bill praying an injunction alleging in substance the following grounds: First, that the mayor and the boards of councilmen and aldermen were without power to adopt the said ordinances; second, that the municipality has not (at the time of the filing of the bill) furnished the approaches for the bridge at Twenty-Ninth avenue as provided by the ordinance, and is without power or authority to furnish same, and does not intend to furnish said approaches; third, that the municipal authorities are proceeding to enforce the provisions of said ordinance by vacating and closing that portion of Twenty-Seventh avenue described in said ordinance; fourth, that notwithstanding the conditions upon which alone the vacation and closing of such portion of said Twenty-Seventh avenue as is described in said ordinance was granted have not been complied with, the said defendant Mobile & Ohio Railroad Company is proceeding to erect obstructions in and upon said avenue, by and with the tacit consent of the said mayor and boards of councilmen and aldermen. The principal grounds of damage as alleged in the bill are that the closing of Twenty-Seventh avenue would require complainants to travel further in going to and from their place of business, since they lived on the south side of the railroad, and that complainants would suffer loss of trade by reason of the inconvenience to their customers in shutting off the approach along Twenty-Seventh avenue from the south, and compelling their customers to go by a more circuitous route by way of the overhead bridge on Twenty-Ninth avenue. All the material allegations of the bill were denied.

The points made by defendants were that complainants had no right to maintain their suit in chancery, first, because they were not abutting owners of that portion of the street proposed to be closed, entitling them to object in this or any other proceeding; second, because complainants were only a part of the general public, and had not alleged or proven any special damages to themselves different in kind or greater in degree than that suffered by the general public, such as would entitle them to proceed in private suit to abate a public nuisance; third, that, inasmuch as the closing or obstruction of the street complained of was a public nuisance, if a nuisance at all, no one but the public authorities could proceed in the courts to have it abated, without showing special damages different in kind and greater in degree than those suffered by the public generally.

The Annotated Code of 1892, § 2945, gives municipalities the authority to "close and vacate any street or alley, or any portion thereof." Code 1906, § 3336, adds the following to the above section: "But no street or any portion thereof shall be closed or vacated except upon due compensation being first made to the abutting landowners upon such street or alley for all damages sustained thereby."

The following is a plat of the locality in question:

[SEE ILLUSTRATION IN ORIGINAL]

Affirmed.

Amis & Dunn, for appellants.

On the trial in the chancery court, the defendants contended that complainants had no right to maintain their suit in chancery: First because they were not abutting owners on that portion of the street proposed to be closed, as entitled them to object in this or any other proceeding, and, second, because complainants were only a part of the general public, and had not alleged or proved any such special damages to themselves different in kind or greater in degree than that suffered by the general public, much as would entitle them to proceed in a private suit to abate a public nuisance. Third, inasmuch as the closing or obstruction of the street complained of was a public nuisance, that no one except the public authorities could proceed in the courts to have it abated, without showing special damages different in kind and greater in degree than those suffered by the public generally.

Defendants restrict the rights of a land owner abutting on a street within limits much too narrow. Counsel insist that although the complainants here own lands abutting on Twenty-Seventh avenue at a point near that portion of the street proposed to be closed, they have no greater or different rights in or to Twenty-Seventh avenue, as a whole, than have the general public. They insist that the general public has an easement in the street as a whole; that the general public has a right to pass over the street on foot or in vehicles from end to end, and that the complainants in this case have the same right, but that they have no other or different right in it. That the mere fact that they own lands abutting on the street, and that they conduct a store located on these lands, does not change their status in the matter.

On the contrary, our contention is that a street, in a city is one entire thing from end to end. That Twenty-Seventh avenue in the city of Meridian is one indivisible entity from the northern limits of the city to the southern limits, and that...