State Highway Commission v. Corley

• Decision Date: 02 October 1939
• Docket Number: 33782
• Citation: 191 So. 119,186 Miss. 437
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY COMMISSION v. CORLEY et al

191 So. 119

186 Miss. 437

STATE HIGHWAY COMMISSION v. CORLEY et al

No. 33782

Supreme Court of Mississippi, Division B

October 2, 1939

APPEAL from the circuit court of Covington county HON. EDGAR M LANE, Judge.

Proceeding by the State Highway Commission against W. U. Corley and others, for assessment of damages caused by change in grade. From a judgment for the property owners, the State Highway Commission appeals. Reversed and remanded.

Reversed and remanded.

E. R Holmes, Jr., Assistant Attorney-General, for appellant.

It is appellant's contention that the lower court erred in overruling defendant's motion to exclude and likewise erred in refusing defendant's request for peremptory instruction for the reason that plaintiffs' declaration alleged certain damages to the property of plaintiffs which abutted on the newly constructed Highway 84 in the Town of Collins, Covington County, Mississippi, and plaintiffs' proof wholly failed to show any actionable damage whatsoever all damage which was shown being either damnum absque injuria or general injuries shared by the public in general.

Mississippi Constitution of 1890, Section 17; Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162; Schlicht v. Clark, 114 Miss. 354, 75 So. 130; 20 C. J. 677.

It is our contention that no damage to plaintiffs' property was proven. It is unquestionably true that this suit was based on Section 17 of the Constitution of 1890, and particularly that part of it providing that private property shall not be damaged for public, use except on due compensation. In all probability plaintiffs attempted to draw their declaration so as to follow the case of Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162, and although the declaration in part alleged actionable damage, no actionable damage was proved on the trial. Only two elements of damage which plaintiffs attempted to prove, being (1) damage occasioned by change of grade of the sidestreet where it entered or intersected Highway 84, and (2) damage occasioned by the washing of the sidewalk in front of plaintiffs' property, which sidewalk although constructed by plaintiffs, was not on plaintiffs' property. It appears that both of these items of damage are general injuries, shared by the public in general.

Schlicht v. Clark, 114 Miss. 354, 75 So. 130; Orgel on Valuation under Eminent Domain, Note 26, page 22; 20 C. J., pages 677 and 739.

W. U. Corley, of Collins, for appellees.

Lets try out the side walk proposition first; it is shown and undisputed that it was made by appellees; that it was drained before the construction, and the drain filled by the construction; that the side walk was the higher before construction, and washed away by the construction. Have appellees any different interest in this, from that of the general public? Is it not true that an adjoining owner to a side walk has a different interest from that of the general public? These questions are answered by Caldwell v. George, 50 So. 631, 96 Miss. 484.

Brahan v. Meridian Home Tel. Co., 52 So. 485, 97 Miss. 326.

Sidewalks are a part of the street, set apart for pedestrians; the word "street" as ordinarily used, includes the sidewalk.

28 Cyc. 833.

An abutting owner has two distinct kinds of rights in the street, the public one which he enjoys in common with all citizens, and private rights which arise from his ownership of contiguous property. Among the private rights are the free and unimpeded ingress and egress to and from his property, 28 Cyc. 856. We have the same law applicable to sidewalks, as to streets, because they are the same, one in the other. Abutting owners have an indefeasible right of access to and from their property to the street.

28 Cyc. 863.

The abutting owner has an interest in the street peculiar to his situation, and distinct from any he may claim as a citizen of the municipality.

Long v. Wilson, 119 Iowa 267; Perry v. Castner, 124 Iowa 386, 2 Ann. Cas. 363; Mississippi Constitution of 1890, Section 17; City of Vicksburg v. Herman, 72 Miss. 211; City of Jackson v. Williams, 92 Miss. 301.

In Rainey v. Hinds County, 78 Miss. 308, the highway drained water on appellant's lands, and this court reversed and remanded the case for trial, because his property was damaged.

In Blair v. Charleston, 48 W.Va. 62, 64 Am. St. Rep. 837, a case where an embankment was created in front of lot, or residence, on the question of established grade, that court said: "If a street of a city or town is a public street, though no grade for it has ever been fixed and is used upon the natural surface grade and improvements have been made on lots lying upon it, with reference to such grade, before any grade line is ever established and the natural surface is changed to its injury, it is answerable in damages. In estimating the damages, it is proper to consider the expenses of adjusting the property to the new grade, the cost of filling, injury to the trees, and the raising of houses. In fact all things causing a diminution in the value of the property are to be considered."

City Council v. Scharameck, 96 Ga. 426, 51 Am. St. Rep. 146; Murphy v. City of Meridian, 103 Miss. 110, 60 So. 48.

OPINION

McGehee, J.

This appeal is from a judgment of the...