State Highway Commission v. Mason

• Decision Date: 10 November 1941
• Docket Number: 34689.
• Citation: 192 Miss. 576,4 So.2d 345
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY COMMISSION v. MASON.

4 So.2d 345

192 Miss. 576

STATE HIGHWAY COMMISSION v. MASON.

No. 34689.

Supreme Court of Mississippi

November 10, 1941

Russell Wright, Asst. Atty. Gen., for appellant.

G Q. Whitfield, of Jackson, for appellee.

ROBERDS Justice.

Appellee sued appellant in a justice of the peace court, the statement of her claim reading as follows:

"To use and occupation and damages, both actual and punitive, for parking, both day and night, on the driveway and yard at her store and filling station and home, at the intersection of Highway 49 and Camp Kickapoo Road, of 2 caterpillar road machines, 2 graders, 6 trucks and several automobiles, during the months of December 1939 and January and February 1940 in the sum of $200.

Plaintiff alleges that some representative of the State Highway Commission of Mississippi in December 1939, while said Commission was doing some highway work with its various machines above mentioned, near her store and filling station and home, located as aforesaid, requested permission to park their machines for one night only on said driveway and yard, to which she consented, but when they continued to bring them there night after night she protested promptly, and insisted on their not parking any of said machinery there any more, for the reason that they proved an inconvenience, annoyance and nuisance to her, and interfered seriously with her operation of her store and filling station efficiently and satisfactorily, and in addition the machinery was so heavy that after a rain it would make ruts in the driveway and yard, but plaintiff alleges that although she protested to the men in charge of said machinery and wrote three letters to Commissioner Roebuck, who ignored them, that they continued to park them on her driveway and yard over her protest for a period of about three months, and she was a helpless widow and unable to force them to stop parking there, with the result that during said time it rained a good deal and said heavy machinery cut big ruts in her driveway and yard, and they blocked the light from her windows, and disturbed her with their noises and, in fact, were a general nuisance to the extent that said wilful, and unlawful trespasses affected her health and made her sick and very nervous and unable to attend to her business properly.

Wherefore plaintiff alleges that the State Highway Commission of Mississippi, by reason of said unlawful trespasses over her repeated protests on her driveway and yard, at her house and by reason of the actual damage done to said driveway and yard, and of the nuisance of having them parked there every night and taken away every morning greatly inconveniencing and annoying her daily and nightly, and making her sick and on account of the wilful wrong involved became indebted to her for use and occupation and damages, both actual and punitive, in the total sum of $200.00 together with all costs."

From an adverse judgment appellee appealed to the county court of Hinds County. Here appellant demurred to the declaration which demurrer was overruled, and, appellant declining to further plead, a final judgment was entered against appellant for $100, which judgment, on appeal by appellant, was affirmed by the circuit court, from which judgment this appeal is prosecuted. The amount of the damage was fixed by agreement of the parties and we do not know the elements thereof, but the arguments on this appeal are based alone upon land damage, and in this opinion we only deal with such damage.

Appellant, in its brief in chief, raises, but does not press, the failure, as it asserts, of the declaration to state that the parking of the machinery was by authority of appellant. Aside from the laxity of formal pleading indulged in the justice of the peace courts, we think the statement of the claim, looking through the form to the substance (Smith Co. v. Jones, 75 Miss. 325, 22 So. 802), and taken in its entirety and fairly interpreted, does state that the parking was with the knowledge and authority of appellant. It alleges the Commission was doing highway work near her home, using this very machinery on that work, and that representatives of the Commission in charge of the machinery brought it to her home, and requested permission to leave it one night, which was granted, and that she thereafter orally protested such parking, and she wrote three letters to one of the Commissioners also protesting such parking, without a reply. This parking continued for some three months, day and night, when the machinery was not being used on this work. The demurrer admits these statements, and others of the claim bearing on this question, are all true. Now, just as a matter of common sense, can it be reasonably said that this quantity of large machinery could be so parked for three months, while being constantly used by the Commission on the public highway, without the knowledge and consent of the person in charge of the operations, who would possess implied, even though he did not have actual, authority to arrange for the parking of the machinery?

In addition, one of the commissioners had actual knowledge of such parking and heeded not the protest against it, thereby approving such acts.

On the fundamental question of liability, appellee contends that under the stated circumstances appellant is liable to her under Section 17 of the Constitution of Mississippi, properly contrued in connection with the various provisions of the Highway Department laws of the State. The able attorney general in his brief for appellant states the proposition in these words: "* * * his (counsel for appellee) suit is not based on a contract and he has no right of action in tort, unless that tort be a trespass which is actionable under the self-executing provisions of Section 17".

Section 17 of the Mississippi Constitution provides: "Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; * * *".

Chapter 122, § 4989 et seq., Code of 1930, provides for an elaborate state-wide public highway system to be administered by three commissioners, a highway director, a chief engineer, secretary and other employees. The main object is to lay out, construct, alter, and keep in repair a comprehensive network of public highways throughout the State. It is a matter of common knowledge and public record that it has taken over, altered, changed, repaired, located, relocated and constructed thousands of miles of such highways and has expended millions of dollars for such purpose. To accomplish this, there must needs be many contacts and negotiations between appellant and private owners of lands. It is also necessary that the Commission should have, and it does have, extensive and far-reaching powers. It has the power to acquire and hold title to rights of way and other property to fulfill its functions. It may so acquire by contract, purchase, gift, or otherwise, such property. It has the power of mandamus and eminent domain. It is expressly enjoined by the law "so far as possible, all rights-of-way shall be acquired or contracted for before any route is definitely located," thereby recognizing that methods other than those named might be used in acquisition of such property. It has power to acquire, use and operate all machinery and equipment necessary for doing its work. The law expressly enjoins that it "shall use diligence to protect growing crops and pastures, and to prevent damage to any property not taken," thus recognizing that damage other than the actual taking of title might be caused. And to perform its functions, the Commission has the power "to authorize the employees of the state highway department to enter upon private property for such purposes". And for all of the foregoing, and other necessary, things it has the power to pay out of the "construction fund". Sec. 4998, Code 1930.

It is a body corporate with the right to sue and be sued, and arrange for the care and housing of its machinery and equipment. Sec. 5006(c), (p), Code 1930.

Appellant cites and relies upon the cases of Pearl Realty Company v. State Highway Commission, 170 Miss. 103, 154 So. 292; Stewart v. State Highway Commission, 166 Miss. 43, 148 So. 218; State Highway Commission v. Knight, 170 Miss. 60, 154 So. 263; and Stephens v. Beaver Dam Drainage District, 123 Miss. 884, 86 So. 641.

The Realty Company case involved the validity of a three-year lease of office space when the Commission had only authorized a two-year lease. It is not in point here.

The Stewart case involved the liability of the Commission for personal injuries to plaintiff resulting from an automobile collision alleged to have been caused by the negligence of an employee of the Commission, and, likewise, is not in point here.

The Knight case is perhaps the strongest case to be found in this State in support of appellant's contention. In the opinion of the writer, it went the extreme limit in holding non-liability on the part of the Highway Department, but it is readily distinguishable from the case at bar. The action there was for damage to land of plaintiff, situated some three-eighths of a mile from the highway, caused by the digging of ditches by the Commission "on each side and parallel with this highway, which changed the channel of the creek, carried the water thereof a short distance from the place where it formerly crossed the highway, and discharged it again into Barlow creek, causing, according to the evidence for the appellee, an increased and more rapid flow of water in Barlow creek, resulting in its overflowing its banks and spreading out over a portion of the appellee's land." The case reiterated the formerly announced rules that (1) ...