Town of Clinton v. Turner

• Decision Date: 16 May 1910
• Docket Number: 14494
• Citation: 52 So. 261,95 Miss. 594
• Court: Mississippi Supreme Court
• Parties: TOWN OF CLINTON ET AL. v. MATTIE TURNER

52 So. 261

95 Miss. 594

TOWN OF CLINTON ET AL. v. MATTIE TURNER

No. 14494

Supreme Court of Mississippi

May 16, 1910

FROM the chancery court of, first district, Hinds county, HON. G GARLAND LYELL, Chancellor.

Madame Turner, appellee, was complainant in the court below; the town of Clinton and the Alabama & Vicksburg Railway Company appellants, were defendants there. From a decree overruling their demurrer to the bill of complaint, the defendants appealed to the supreme court. The material facts, as shown by the bill, are stated in the opinion of the court.

Affirmed and remanded.

McWillie & Thompson, for appellants.

The demurrer to the bill should have been sustained. Madame Turner, complainant, appellee, was not an abutting owner. Her lands were not upon that portion of the street vacated by the municipality. Poythress v. Mobile, etc., R. Co., 92 Miss. 638, 46 So. 139; Cram v. Laconia, 57 L. R. A. 282.

The appellee stood by and, without objection, saw the expenditure of a large sum of money in the erection of a valuable depot and awaited its completion before making complaint. She is now estopped from asking the injunctive relief for which she prays. 16 Am. & Eng. Ency. of Law (2d ed.) 356, 357, and authorities cited.

The railroad commission of the state, under Code 1906, § 4863, is the only tribunal authorized to pass upon the location of depots; and, under Code 1906, § 4854, it will be unlawful to remove the depot now that it is established, without the approval of the commission. The chancery court is without jurisdiction in the premises; nor does Constitution 1890, sec. 147, apply, since it only prevents reversals because of error as between common-law and equity jurisdiction, not between equity jurisdiction and the statutory jurisdiction of the state railroad commission.

Graves Easterling & Manhip and V. J. Stricker, for appellee. The first objection raised in the demurrer to the bill and amendment is want of equity. The reply to this is well settled by authority that equity will enjoin the interruption of public easements or obstructing streets. Briel v. Natchez, 48 Miss. 423; Canton Warehouse Co. v. Potts, 69 Miss. 31, 10 So. 448; Learned v. Hunt, 63 Miss. 373; Jones v. Brandon, 60 Miss. 556; Laurel v. Rowell, 84 Miss. 435, 36 So. 543; 16 Am. & Eng. Ency. of Law (2d ed.) 342; Silver Creek, etc., Co. v. Yazoo, etc., R. Co., 90 Miss. 395, 43 So. 478; Coleman v. Holder, 88 Miss. 798, 41 So. 374.

If such obstruction be made under circumstances entirely disregardful of eminent domain proceedings, constitutional provision, and under conditions which ripen the trespass into a nuisance by reason of its continuance and into injuries which for that reason are irreparable, then an injunction will lie to remove such obstruction and is the proper remedy to that end. Canton Warehouse Co. v. Potts, 69 Miss. 31, 10 So. 448; Laurel, etc., Co. v. Rowell, 84 Miss. 435, 36 So. 543.

It is earnestly insisted by counsel for appellants that the town has full authority under the law to pass an ordinance vacating a street without compensation to the owners, and they cite Code 1906, § 3336, to the effect that municipalities are given the power "to close and vacate any street or alley or any portion thereof but fail to cite the remainder, "but no street or alley or any portion thereof shall be closed or vacated except upon due compensation being first made to the abutting land owner upon such street or alley for all damages sustained thereby."

In answer we content ourselves with citing Sec. 17 of the Constitution of 1890.

The case of Cram v. Laconia, 57 L. R. A. 282, cited by counsel for appellant, merely held that the discontinuance of a part of a street remote from plaintiff's property, where there is a system of cross streets connecting complainant with all portions of said city, which merely occasions a slight inconvenience in going out of the way, is not actionable, but on page 288 the court says: "Undoubtedly the discontinuance of any part of a street although away from complainant's premises, which has the effect to destroy and impair the portion of the street upon which he abuts as a means of access by cutting it off from communication with the system of streets would be actionable--not, however, because of the discontinuance of the street away from complainant's premises, but because of the practical discontinuance of the part upon which he abuts, as an effect of the actual discontinuance of the part away." And, see Poythress v. Mobile, etc., R. Co., 92 Miss. 638, 46 So. 139.

That case does not conflict with Laurel, etc., Co. v. Rowell, or Canton Warehouse Co. v. Potts. Besides it is expressly stated in this opinion that Poythress was not an abutting owner on the part of the street closed.

In support of the proposition that complainant is an abutting owner and entitled to the relief sought we cite the following: Portland R. Co. v. Portland, 58 Am. Rep. 299; Grey v. Iowa Land Co., 26 Iowa 387; Glasgow v. St. Louis, 107 Mo. 202; Duback v. Hannibal R. Co., 89 Mo. 483; Smith v. McDowell, 148 Ill. 51, 22 L. R. A. 393; Schopp v. St. Louis, 20 L. R. A. 783; New Haven v. New Haven R. Co., 18 L. R. A. 256.

Argued orally by T. A. McWillie, for appellants, and by Lamar Easterling, for appellee.

OPINION

MAYES, C. J.

This suit was begun in the chancery court of Hinds county by Mattie Turner, in which she seeks to have declared void an ordinance of the town of Clinton closing up the south end of Neal avenue and the north end of Jefferson street, and also to compel the removal from across the streets in question of the depot of the Alabama & Vicksburg Railway Company as an obstruction to same. She also seeks to recover damage claimed by her to have been sustained by reason of the closing of the street and its obstruction by the depot, and also prays for an order compelling the opening of the street and enjoining the town of Clinton and the railway company from further obstructing or interfering with the street. The bill filed is a lengthy one, and need not be here copied.

It appears from the bill that prior to the year 1907 Jefferson street was one of the main streets in the town of Clinton running north and across the right of way and tracks of the Alabama & Vicksburg Railway Company, and after crossing the tracks, though a continuous street, its extension or continuation was called Neal avenue. This street had been maintained and used as a public thoroughfare for more than fifteen years. Mattie Turner owned land fronting and abutting on the east and west side of Neal avenue, or Jefferson street extended; in fact, her land was divided by this continuous street, and she alleges that she bought the property and built houses thereon, adjusting same with reference to this street. The complainant has erected two houses near the point where Neal avenue, or Jefferson street extended, touches the southern boundary of the railroad right of way. These houses were built at considerable expense to her, and fronting on both sides of Neal avenue. One house is a storehouse, and the other a boarding house and store combined. Some time in 1907 the mayor and board of aldermen of the town of Clinton undertook to close the south end of Neal avenue near complainant's houses, and at the point where the avenue ran into Jefferson street extended,...