Quin v. Mississippi State Highway Commission

• Decision Date: 08 February 1943
• Docket Number: 35198.
• Citation: 11 So.2d 810,194 Miss. 411
• Court: Mississippi Supreme Court
• Parties: QUIN v. MISSISSIPPI STATE HIGHWAY COMMISSION.

11 So.2d 810

194 Miss. 411

QUIN v. MISSISSIPPI STATE HIGHWAY COMMISSION.

No. 35198.

Supreme Court of Mississippi

February 8, 1943

Suggestion of Error Overruled March 1, 1943.

In Banc.

Cassidy & McLain, of McComb, for appellant.

Greek L. Rice, Atty. Gen., and Russell Wright, Asst. Atty. Gen for appellee.

McGEHEE Justice.

This case is brought here on an appeal by the plaintiff in the court below from a judgment rendered by the Circuit Court of Pike County dismissing her suit, after a demurrer had been sustained to the declaration which alleges her ownership of approximately 165 acres of improved farm land situated just south of and abutting on the old Liberty and McComb Highway which was a county public road at the time she purchased said land on December 31, 1929, and also when the defendant Mississippi State Highway Commission, during the year, 1939, acting pursuant to Chapter 47, Laws of 1930, and amendments thereto, constructed, reconstructed, located, relocated, and changed the said old Liberty and McComb Highway, now known as Mississippi Highway No. 24-a newly paved highway-beginning at Fort Adams on the Mississippi River in Wilkinson County and running thence in an easterly direction through or near Woodville, Centerville, Gloster, Liberty, McComb, and other points until it intersects Mississippi Highway No. 63, in the eastern part of the state, at or near Leakesville, Mississippi.

The declaration further alleges that the defendant, acting through its duly authorized officers, agents, servants and employees, and under authority of law, relocated the said highway, during the year, 1939, between Liberty and McComb in such manner that the new paved highway now runs a distance of some five or six hundred feet north of the home and premises of the plaintiff so as to leave her residence and other improvements, which she had built at a cost of approximately $7,000, on a three-and-a-half mile link of the old Liberty and McComb highway, and thereafter abandoned the said link of the old Liberty and McComb public road on which the plaintiff and one other property owner reside, and has since refused to maintain the same and keep it in repair, and has tendered the said link of the old road back to the board of supervisors of Pike County for upkeep and maintenance; that the said board of supervisors has, by an order duly entered upon its minutes and made an exhibit to the declaration, refused to resume jurisdiction over that part of the old road, and has expressly declared its intention not to keep up and maintain the same. The order or resolution of the State Highway Commission reciting the relocation and reconstruction of the said three-and-a-half mile link of the old road and the discontinuance of the use thereof by the Highway Department as not being coincident with the new paved highway nor a part of its right of way, and returning jurisdiction thereof to the board of supervisors for upkeep and maintenance, is also made an exhibit to the declaration. The order of the board of supervisors declining to resume jurisdiction of the said link of road after once being deprived of its jurisdiction by the legislature when the old road from Liberty and McComb was designated as a state highway, contains a recital which adjudicates that it will be necessary for this abandoned link of the old highway to be maintained for the use of the property owners and persons living on and along the said segment of road, but further recites that the board of supervisors is under no obligation to maintain and keep up the same and calls upon the State Highway Commission to continue the maintenance and upkeep thereof.

It is also alleged in the declaration that the defendant in relocating, reconstructing, altering, and changing the said highway, cut up the old Liberty and McComb Public road into small and short segments, thereby destroying the same as a public road to such an extent that no substantial highway is now left along the trace of the old Liberty and McComb public road, and with the result that the plaintiff is left isolated on the said three-and-a-half mile segment or fragment of said old Liberty and McComb public road; and that by the refusal of the defendant to maintain the old highway abutting on her said premises and by its abandonment of the same the plaintiff has been wrongfully deprived of a way of ingress and egress to and from her said home and premises, and that the lands belonging to other persons are located between her home and premises and the new paved highway, whereas her said property theretofore abutted on the old highway, which, before its relocation and abandonment, was kept up and maintained by the defendant; that wherefore her property has been greatly depreciated in market value and substantially damaged by the said action of the defendant, and that she is entitled to be compensated for such damage under the provisions of Section 17 of [11 So.2d 812] the Constitution of the State of Mississippi of 1890 in the sum of $3,000, which the said defendant has refused to pay.

It is not alleged in the declaration that in reconstructing and relocating the said highway the defendant destroyed or rendered impassable the approaches of the said three-and-a-half mile link of the old road where the same leaves the new paved highway, but the complaint in regard to the plaintiff's being deprived of her way of ingress and egress to her home and premises appears to be based upon an allegation to the effect that there are four bridges located on the said three-and-a-half mile link of the old highway, all of which have been condemned, and that in order to repair or reconstruct the bridges to the east of the plaintiff's residence leading toward her market place at McComb, an expenditure of from ten to fifteen thousand dollars will be necessary, and that the board of supervisors is under no duty to maintain the said bridges or the link of the old highway thus abandoned. Moreover, the damages claimed under and by virtue of the said Section 17 of the State Constitution are specifically alleged to have been caused by the defendant "altering and changing the usual course of said highway, and by its refusal to maintain the old highway abutting upon her said premises and by abandoning the same" so as to deprive her of a way of ingress and egress to and from her said home, and leaving her home and premises surrounded by lands belonging to other persons over which she has no way of ingress and egress.

The basis of the plaintiff's claim for damages, above stated, brings about the necessity of our deciding the question as to whose duty it is, under the law, to now keep up and maintain this link of road after its abandonment by the defendant, the State Highway Commission, and to provide the plaintiff with a means of ingress and egress from her home and premises to the new paved highway now located at a distance of some five or six hundred feet in front of her residence. In the case of Wilkinson County v. State Highway Commission, 191 Miss. 750, 4 So.2d 298, 299, the Court said: "When there has been a finished relocation and in consequence an abandonment by the Highway Commission of the old road, whence the abandoned road has reverted to the county and its board of supervisors, all jurisdiction and control of that road and all obligations of the Highway Commission in respect to it has ended; * * *". It is true that in that case there was involved the alleged right of the county to enforce compliance with a contract entered into between the county and the State Highway Commission and which contract was held to be unenforceable, nevertheless, the suit was by a bill in equity to compel the State Highway Commission to continue the maintenance of a portion of the road abandoned by the Commission as part of a state highway, and from which state of case it necessarily follows that without regard to whether or not the Highway Commission was vested with authority at the time of the execution of such contract to make the same, the court would have granted relief under the general prayer of the bill if it had been of the opinion that aside from such contract the State Highway Commission owed the duty under the law, to continue to maintain the abandoned portion of the road after it had completed the new highway and had undertaken to surrender jurisdiction over the old road to the board of supervisors for future upkeep and maintenance.

In the case of Trahan et al. v. State Highway Commission et al., 169 Miss. 732, 151 So. 178, 183, the Court held that the statutes then in force respecting the highway system do not require that a state highway follow existing roads between points mentioned in the statutes (Laws 1924, chapter 278, as amended by Laws 1926, chapter 218; Laws 1928 Ex.Sess., chapter 45; Code 1930, section 4997), but that the State Highway Commission had the right and was under a duty to shorten the mileage of and eliminate the curves in the highway as it existed at the time the same was designated by the legislature as a state highway and placed under the jurisdiction of the said Commission; that Section 170 of the State Constitution of 1890, as it was...