Swett v. Mississippi State Highway Commission

• Decision Date: 03 January 1967
• Docket Number: No. 44175,44175
• Citation: 193 So.2d 596
• Parties: John L. SWETT v. MISSISSIPPI STATE HIGHWAY COMMISSION.
• Court: Mississippi Supreme Court

Page 596

193 So.2d 596

John L. SWETT v. MISSISSIPPI STATE HIGHWAY COMMISSION.

No. 44175.

Supreme Court of Mississippi.

Jan. 3, 1967.

Prewitt, Bullard & Braddock, Vicksburg, for appellant.

Dent, Ward, Martin & Terry, Vicksburg, for appellee.

GILLESPIE, Presiding Justice.

John L. Swett filed suit in the County Court of Warren County against Mississippi State Highway Commission and alleged that his lands had been damaged by the Highway Commission in violation of section 17 of the Constitution of the State of Mississippi. The declaration charged that Swett owned certain lands in section 17, north of U.S. Highway 80 in Warren County, through which flowed Clear Creek, and that the bed and banks of said creek through his property had been stabilized since 1938. He alleged that sometime before December 1958 the Highway Commission straightened Clear Creek in the vicinity of U.S. Highway 80 and altered the natural course of the stream as it had run for many years by removing two bends, one north and one south of U.S. Highway 80. It also alleged that these bends in the creek had retarded the rapid discharge of water and that the removal of the bends caused the velocity of the discharge of water in the creek to be increased through Swett's lands, causing the creek bed to be widened and damaging a ford-type crossing which had theretofore been used by Swett in his farming operations.

In its answer the Highway Commission included among other defenses one based upon a conveyance executed by Swett prior to the alteration of the creek bed. The answer alleged that on April 23, 1954, Swett owned the lands to the north of the highway, which the declaration alleged to have been damaged, and lands south of the highway; that on this date Swett executed a conveyance granting the Highway Commission the right to construct channel changes in the creek; and that Swett had been duly compensated for any damages sustained as a result of the channel changes.

Upon motion of the Highway Commission, the affirmative defense based on the conveyance and the defense based on governmental immunity were heard separately before the principal trial of the cause. Miss.Code Ann. § 1475.5 (1956).

The county court sustained the affirmative defense that the Highway Commission was immune from suit and dismissed the action. The circuit court affirmed on the ground that the conveyance constituted a full release for the alleged damages to the lands under section 17 of the Mississippi Constitution.

On April 23, 1954, Swett was the owner of certain lands in sections 8, 9, 17 and 21 in Township 16 North, Range 5 East, Warren County, Mississippi, and the owner of an unexpired leasehold interest in certain lands in section 16 of that township and range. On April 23, 1954, Swett executed to Mississippi State Highway Commission a deed to the right-of-way of U.S. Highway 80 which traverses Swett's land in sections 16 and 21. The deed recited a consideration of $1200 for the 13 acres included in the right-of-way across Swett's land in sections 16 and 21. The deed recited the payment of an additional $2004 for damages for an easement over a strip of land 150 feet in width and 750 feet in length extending southeasterly from the highway 'for the purpose of constructing channel changes.' The following words were typed in the conveyance and initialed by Swett, to-wit:

It is further understood and agreed that the consideration herein named is in full payment and settlement of any and all damages and compensation which would be allowable under a decree were it rendered by the Court and Jury in an Eminent Domain proceeding under the provisions of Chapter 3, Title 12 of the Mississippi Code of 1942.

The proof showed that Clear Creek flowed through the lands of Swett in section 17, thence across lands in section 20 belonging to another before passing under the U.S. Highway 80 right-of-way, thence southeasterly through Swett's land in section 21. The easement acquired from Swett for changes in the channel of Clear Creek started at the northwest corner of section 21 and ran southeasterly. Two bends in the channel were eliminated, one on Swett's land in section 21 and one on another's land in section 20. The damage was to Swett's land in section 17. Swett's land in sections 8, 9 and 17 was in one contiguous tract of 410 acres. His leasehold estate in section 16 consisted of 105 acres, and he owned an adjoining 80 acres in the northwest corner of section 21. On the date of the conveyance by Swett to Highway Commission all of this land, consisting of 595 acres, was used for general farming purposes as a single operation. The southeast corner of Swett's land in section 17 was about 400 feet west of the northwest corner of his leasehold in section 16, but the two tracts were connected by a county road which Swett used to transfer cattle back and forth. By means of this road the land to the north in sections 17, 9 and 8 was accessible to other parts of Swett's lands.

The conveyance from Swett to the Highway Commission was, by the terms thereof, to the same effect as if the Highway Commission had condemned the right-of-way and easement in condemnation proceedings. The question presented here is: Could Swett have recovered in eminent domain proceedings for the damage to his lands in section 17 resulting from the taking and use of the right-of-way and easement described in the conveyance of April 23, 1954? We agree with the circuit judge and hold that under the unity of use rule Swett could have recovered in eminent domain proceedings for all damage to his lands, and that the consideration paid for the release and...