Riley v. Atkinson

• Decision Date: 26 December 1975
• Docket Number: No. EC 75-156-S.,EC 75-156-S.
• Citation: 413 F. Supp. 413
• Parties: W. A. RILEY, Plaintiff, v. Robert ATKINSON et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

413 F. Supp. 413

W. A. RILEY, Plaintiff, v. Robert ATKINSON et al., Defendants.

No. EC 75-156-S.

United States District Court, N. D. Mississippi, E. D.

December 26, 1975.

Joseph E. Winston, Parker, Averill & Winston, P.A., Tupelo, Miss., for plaintiff.

Armis Hawkins, Houston, Miss., for defendants.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

This action is before the court on defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).

The parties have presented memoranda in accordance with the rules of the court and the matter is now ripe for decision.

The court should not sustain a motion to dismiss for failure to state a claim "unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim". Des Isles v. Evans, 200 F.2d 614, 615-16 (5th Cir. 1952), quoting from 2 Moore's Federal Practice, 2d Ed., § 8.13 at 1653; Thompson v. Allstate Ins. Co., 476 F.2d 746, 749 (5th Cir. 1973); Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80, 84 (1957).

In considering the merits of the motion, the court must look to the complaint and cannot consider matters aliunde the record.

The complaint states that plaintiff, on April 10, 1937, purchased certain land in Lee County, Mississippi from Mrs. Margaret Walker; that the deed by which plaintiff acquired the property excluded from the conveyance the right-of-way of a road running east and west across the land; and that plaintiff occupied land south of the road until 1969 when the Richardson family, landowners in Chickasaw County, took possession thereof.

The complaint reflects a history of litigation in the state courts over the title to the disputed land. The Richardsons filed suit in 1947, but the disposition of the action is not set forth in the complaint. When the Richardsons invaded plaintiff's possession in 1969, plaintiff filed suit in the Chancery Court of Chickasaw County to confirm his title.

The Mississippi Supreme Court on a consideration of the case on appeal held that it was unable to determine the line between the property of the litigants and sympathetically observed "the parties are shouldering an expensive responsibility that could very well rest upon the respective counties". Riley v. Richardson, 267 So.2d 901, 904 (Miss.1972).

The complaint alleges that defendant, Chickasaw County Board of Supervisors (hereinafter "the Board"), acting as the governing authority of the county, established a public road over the disputed land without obtaining a right to do so. Plaintiff claims that such action constitutes a taking of his property without due process of law, and, because of the great expense entailed in locating by property survey the division line between the counties, he has been denied the equal protection of the law. The complaint also alleges that the Board has taken his land without authority, the land being situated in Lee, rather than Chickasaw County. Plaintiff seeks a permanent injunction mandatorily enjoining the Board to establish the true division line between the counties. Plaintiff also seeks an injunction restraining the Board from trespassing on his land, monetary damages, and attorney's fees.

Fed.R.Civ.P. 8(a)(1) provides that a pleading which sets forth a claim for relief shall contain "a short and plain statement of the grounds upon which the court's jurisdiction depends". In compliance with this requirement, plaintiff sets forth in the complaint that this court has jurisdiction of the cause of action by virtue of 28 U.S.C. § 1343 and 42 U.S.C. § 1983.

Plaintiff has sued the Board of Supervisors of Chickasaw County, as a governmental body which is charged with the legislative and administrative authority to govern the county, including, but not limited to, the authority to acquire, construct, and maintain public roads within the county. While the members of the Board are named defendants in the action, a fair construction of the complaint leads to the inevitable conclusion that the Board as a governmental body is the defendant rather than the board members, individually, in their personal capacities.

...