Sanford v. Board of Sup'rs, Covington County

• Decision Date: 10 November 1982
• Docket Number: No. 53846,53846
• Parties: Robert W. SANFORD v. BOARD OF SUPERVISORS, COVINGTON COUNTY, Mississippi.
• Court: Mississippi Supreme Court

Page 488

421 So.2d 488

Robert W. SANFORD v. BOARD OF SUPERVISORS, COVINGTON COUNTY, Mississippi.

No. 53846.

Supreme Court of Mississippi.

Nov. 10, 1982.

Gray, Montague & Pittman, S. Joel Johnson, Hattiesburg, for appellant.

Dan A. McIntosh, III, Collins, for appellee.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

BROOM, Justice, for the Court:

Public road to be "laid out" across the lands of appellant Robert W. Sanford was sought by a petition filed by fifty-two individuals with the Covington County Board of Supervisors [Board]. The petition was based upon Mississippi Code Annotated § 65-7-57 (1972), which sets forth the procedure to be followed in such cases. After the supervisors heard the matter, Sanford appealed from the Board's order, to the Circuit Court of Covington County, the Honorable L.D. Pittman presiding. From the circuit court's affirmance, Sanford appeals here. We reverse.

Purpose of the petition was to have a public road constructed, connecting property of one of the petitioners, John Dearman, to an existing public road. After proper notice to affected parties, the supervisors conducted a hearing on the matter and took testimony from several witnesses who established that the road would originate at a public road and dead-end on the Dearman property. After hearing all the testimony, the board issued an order adjudicating that ten or more freeholders and householders of Covington County, Mississippi, had signed the petition. The order states:

3. Whereupon, the Board examined documentary evidence, heard oral testimony and arguments of counsel, and further found that the public interest and convenience requires the road to be laid out and opened and established, as petitioned for.

Whereupon, a committee of two members of said Board, Mr. Robert Stringer and Mr. Garvis Ward were appointed to lay out and mark said road and report their proceedings in writing to the Board at its next meeting on the first Monday of May, 1908. [Emphasis added]

SO ORDERED, this the 7th day of April, 1980.

Upon appeal to the circuit court, in affirming the Board's decision, the Circuit Judge stated, inter alia: "I have some question as to whether the order appointing the Committee would be a final order that can be appealed from ...."

Appealing from the circuit court's decision, Sanford attacks the jurisdiction of the board to hear the petition. He assigned as error the board's factual determination that the public interest and convenience require a public road to be built where proposed. Sanford contended that the proposed road constitutes a private driveway to be constructed at public expense.

We think the learned circuit judge noted a crucial feature of the case in stating that he questioned "whether the order appointing the Committee would be a final order", subject to an appeal. According to § 65-7-57, supra, if the board determines that the public interest and convenience require such a road, the statute requires appointment of a committee of two board members (from a district other than wherein the proposed road would be located) to physically examine the site of the proposed road, and (1) determine if a road on such a location is practicable, (2) lay out and mark the road, and (3) report back to the board of supervisors. After receiving this report the board may "set aside" this report of the committee "for sufficient cause", or in the alternative the report may be "confirmed." Mississippi Code Annotated § 65-7-59 (1972).

We note that the order of the board of supervisors from which Sanford has appealed is the order appointing two of the board members as a committee to inspect the proposed road site pursuant to § 65-7-57, supra. Examination of the order from which Sanford appeals reveals that no actual decision to build the road was made by the board. The order merely established the committee to inspect the property without either confirming or setting aside that committee's report as contemplated by § 65-7-59, supra. If such a decision (to establish the road) were made prior to the appointment of the committee, such decision would be a clear deviation from the provisions of §§ 65-7-57 and 65-7-59. Obvious intent of § 65-7-57 is that the committee shall determine the location of the proposed road and report back to the board whether establishment of the proposed road site is practically feasible. Even if the committee were to report favorably as to the practicality of constructing the road, still the report may be set aside by the supervisors pursuant to § 65-7-59.

Careful examination of the order in the record from which the appeal was taken to the circuit court, and then here, makes it clear that the order fails to show that any decision to actually construct the road across Mr. Sanford's property has been made by the board pursuant to §§ 65-7-57 and 65-7-59, supra. Thus the question arises (not assigned as error or briefed) as to whether Mr. Sanford is "aggrieved by a judgment or decision of the board of supervisors" within the meaning of Mississippi Code Annotated § 11-51-75 (1972), which authorizes appeals from the board to circuit court. Under our established law, this Court of its own motion may, as it should, consider a jurisdictional issue even though not assigned by the parties. Home Ins. Co. v. Watts, on sugg. of error, 229 Miss. 735, 93 So.2d 848 (1957); McCaskill v. Little, 214 Miss. 331, 58 So.2d 801 (1952).

A similar situation existed in Costas v. Board of Supervisors of Lauderdale County, 196 Miss. 104, 15 So.2d 365 (1943), where we reversed in part on suggestion of error, 196 Miss. 124, 16 So.2d 378 (1943). There the Board of Supervisors had been petitioned for a beer referendum and it was contended that the Board had not made an...