Tishomingo County v. McConville

• Decision Date: 08 June 1925
• Docket Number: 24992
• Citation: 104 So. 452,139 Miss. 589
• Court: Mississippi Supreme Court
• Parties: TISHOMINGO COUNTY et al. v. MCCONVILLE. [*]

104 So. 452

139 Miss. 589

TISHOMINGO COUNTY et al. v. MCCONVILLE. ^[*]

No. 24992

Supreme Court of Mississippi

June 8, 1925

Division B

1. EMINENT DOMAIN. County and municipality, excavating or lowering grade of street in construction of highway, held liable for damage to property abutting thereon.

Where a county, under the provisions of section 7179, Hemingway's Code (chapter 255, Laws of 1914), in constructing a highway through a municipality with the consent of the municipal authorities, excavated and lowered the grade of a street in front of plaintiff's property, thereby damaging it, both the county and the municipality are liable to the plaintiff the county being an actor actually doing the damage, and the municipality acquiescing in and consenting thereto, and having a duty to the abutting property owners not to damage their property without first paying the compensation therefor.

2. EMINENT DOMAIN. County or municipality, changing grade of street or road, is liable to abutting property owner for damages.

Under section 17 of the Constitution of 1890, a county or municipality that changes the grade of a street or road to the damage of an abutting property owner is liable for damages resulting to such property from such work.

HON. C P. LONG, Judge.

APPEAL from circuit court of Tishomingo county, HON. C. P. LONG Judge.

Action by C. McConville against Tishomingo county and another. Judgment against defendants jointly, and they appeal, and plaintiff brings a cross-appeal. Affirmed on direct and cross appeal.

Affirmed.

Harry M. Rhine, for appellant, town of Iuka.

Appellee had a residence facing and adjacent to what had been known as Quitman street, the route of the Lee Highway and in the construction of said highway the street which had run in front of appellee's house was excavated considerably deeper and appellee filed his suit against Tishomingo county, the Lee Highway Road District and the town of Iuka for seven hundred dollars damages to his property by reason of this construction and recovered a judgment for one hundred dollars against all defendants from which judgment this appeal is prosecuted.

Section 170 of the Constitution of the state of Mississippi will govern, for the sole or full jurisdiction of roads is vested in the board of supervisors, a power that may be regulated, but which the courts and the legislature cannot take away from them. 54 Miss. 668, 59 Miss. 531, 60 Miss. 658. On the other hand the municipality is a child of the legislature and the powers that are delegated to it by the legislature may at any time be divested out of the municipality. Canton v. Marshall, 84 Miss. 268. The power of a municipality over its streets under an ordinary charter is subject to legislative control. Donnaher v. State, 8 Sm. & M. 649; Hodges v. Western Union Telegraph Co., 72 Miss. 910.

To promote the building of roads the legislature, section 7179, Hemingway's Code, provides that "any public highways being constructed, improved and maintained under the provisions of chapter 149, Acts of 1910, or under chapter 257, Laws of 1912, or under any of the various methods of building good roads authorized by law of the state of Mississippi, where the same shall run or extend into or through any incorporated municipality within the district or districts operating under said act may be constructed, improved and maintained the same within as without the corporate limits of the municipality; provided, however, that with the consent of and in conjunction with the commissioners provided for in said act the municipality may, out of its own funds, add such street crossings, or make improvements such as grading, culverts, graveling or other improvements as it may desire, provided the mayor and board of aldermen by an order spread on its minutes consent for the work to be done by the commissioners."

Under that statute we contend that the appellant, the town of Iuka, is not liable and the peremptory instruction asked for should have been given. What jurisdiction did the municipality have in the building of said road without the consent of the commissioners, the representatives of the board of supervisors? The statute clearly takes the jurisdiction away from the municipality and vests it in the representatives of the board of supervisors. There is no restriction as to how the board of supervisors spend the funds of said district in the municipality more than there is out of same. On the other hand the municipality can only spend its funds with the consent and in conjunction with the commissioners appointed by the board of supervisors and only then when they spread on their minutes consent for the work to be done by the commissioners.

The municipality must get the consent of the board of supervisors before they can do anything toward the construction of said road within their corporate limits, and must go further, they must consent that the board of supervisors do the work. Who supervises the construction of any work? The one that has authority to so do. What authority has the municipality? None save to offer a gift which may be taken or refused as the board of supervisors see fit. Who lets the contract? Who approves or rejects the work, who maintains and exercises control of same after it is built? The board of supervisors! Who let the contract by which the grade was lowered and the damage sustained by appellee--the board of supervisors of Tishomingo county as authorized by said act. On the other hand the town of Iuka was a stranger to said contract and had no part in it. The commissioners have never consented for the municipality to make any improvements in connection with said road.

T. A. Clark and J. C. Jourdan, Jr., for appellant, Tishomingo county.

We have been unable to find any statute in Mississippi where the board of supervisors had jurisdiction over the streets of a municipality or even have any concurrent jurisdiction with the municipal authorities over streets, but the exclusive jurisdiction over the streets of a municipality is given by statute to the municipality. Sections 5827, 5833, 5834 and 5835, Hemingway's Code; Blocker v. State, 72 Miss. 720.

It is true that in this case the town attempted and did deed to the county Quitman street but the town authorities had no right to do this. They could not delegate their power and the record does not show that the board of supervisors had anything whatever to do with this procedure on the part of the town.

Section 7179, Hemingway's Code, is the one under which the appellee is contending the county is liable but this section does not take away from the town authorities jurisdiction over their streets, but it is expressly retained in the town authorities for the reason that act itself is that the board of aldermen shall consent for the work to be done by the commissioners. This scheme, chapter 225, Laws of 1914, was merely a scheme whereby the road commissioners of a road district and the board of supervisors could use money that had been voted in the issuance of bonds in constructing, improving and maintaining roads in a municipality and prior to the passage of this act they could not use any of the money within a municipality.

W. D. Conn, for appellee.

This road was constructed under the constitutional and statutory powers and authority of the board of supervisors of this county. Of this there is no question. If this alleged injury had been done outside of a municipality, under the law as it stands in this state, the county would have been liable. If the cut had been made by the municipality in improving its street itself, it would have been liable for the damage. These propositions are both too well settled to require citation of authorities to sustain them. On the county's appeal, then, the question is this: Where road commissioners, acting under the board of supervisors, construct a road through a municipality, as provided for in section 7179, Hemingway's Code, is the county liable for damages done property within the municipality, occasioned by the construction of the road in accordance with plans and specifications approved by it, and under its orders and instructions? The appellant county answers this question in the negative. The appellee answers in the affirmative. For the town of Iuka the question may be stated as follows: Where a municipality has given road commissioners permission to construct a road through it, as provided by section 7179, Hemingway's Code, is it liable for damages accruing to private property by reason of the construction of the road through the municipality by the county authorities? Appellant, town of Iuka, says no; appellee says yes.

The disposition to be made of this appeal hangs upon the construction of section 7179, Hemingway's Code. In applying this statute to the case at bar, this court must determine whether, by "consenting" that this work might be done by the commissioners, the municipality has relieved itself of all responsibility for this street; and it must also be determined whether the county, by accepting the offer of the municipality and constructing this road through the municipality, has made itself liable for damages occasioned by the construction of the road within the municipality.

That a municipality is liable to an abutting owner for damages done to abutting property by lowering the grade of the street is not controverted, that is, when the grade is changed by the municipality itself. As stated by attorneys for appellant county of Tishomingo, the control of a municipality over its streets is full and complete. The statute under construction does not take away from it any of the power or authority of a municipality over its streets. The statute is merely permissive; it is not mandatory in any...