Town of Wesson v. Swinney

• Decision Date: 22 November 1926
• Docket Number: 25944
• Citation: 110 So. 669,144 Miss. 867
• Court: Mississippi Supreme Court
• Parties: TOWN OF WESSON v. SWINNEY. [*]

110 So. 669

144 Miss. 867

TOWN OF WESSON v. SWINNEY. ^[*]

No. 25944

Supreme Court of Mississippi

November 22, 1926

Division B

Suggestion of Error Overruled Jan. 3, 1927.

APPEAL from circuit court of Copiah county, HON. E. J. SIMMONS Judge.

Action by H. Swinney, Sr., against the town of Wesson. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Reversed.

Wilson & Henley, for appellant.

The subject-matter of this litigation is a grade crossing where the highway in the southern part of the town of Wesson, Mississippi, crosses the right-of-way of the Illinois Central Railroad Company at what is known as the Garner-Swinney Crossing. The testimony throughout the record demonstrates that the only damages suffered by appellee due to the crossing being closed at the point where it crossed the railroad track was caused solely by the diversion of traffic over the overhead bridge, which affected appellee's mercantile business to some extent and, by the further fact that appellee is required to go a more circuitous route in reaching certain points. Access for ingress and egress purposes to appellee's property has not been interfered with nor impaired in any manner whatsoever.

I. Swinney is not an abutting property owner. This case is controlled by Poythress v. M. & O. R. R. Co., 92 Miss. 638; and City of Jackson v. Welch, 136 Miss. 223. See also Cram v. City of Laconia, 57 L. R. A. 282.

II. No damages are recoverable. The burden was on complainant to prove every necessary element of his case by a preponderance of the evidence; and when the testimony is carefully considered, it appears that he did not prove any damages except to his business and except such as was caused by the diversion of traffic from in front of his place of business. This matter was thoroughly and carefully considered in Cram v. Laconia, supra. See also the following cases, holding that damages such as are claimed by Swinney in this case are damnum absque injuria. Bull v. Fort Street Union Depot Co., 23 L. R. A. 392; Davis v. Hampshire County, 11 L. R. A. 750; Dantzer v. Indianapolis Union Ry. Co., 34 L. R. A. 769.

The most favorable cases that have been decided anywhere on this question hold that depreciation in the market value of property, due solely to diversion of travel, loss of trade, or inconvenience in going a more circuitous route is not recoverable.

McNeil & Jones and P. Z. Jones, for appellee.

The property of appellee was damaged and under section 17, Constitution of 1890, private property may not be taken nor damaged without compensation being made.

Poythress v. M. & O. R. R. Co., 92 Miss. 638, relied upon by appellant, recognizes this rule. That case was for an injunction to restrain the closing of the street and the court held that if the property owner has sustained special damage, the plaintiff would have his right of action in the proper suit.

It is immaterial as to why the closing of the crossing was necessary. If the property was thereby damaged, the appellee is entitled to be and should be compensated. We rely upon Town of Clinton v. Turner, 95 Miss. 594, to show that appellee was an abutting property owner.

Both law and evidence fully warrant this verdict, which should have been for a much larger amount.

Argued orally by W. S. Henley, for appellant, and P. Z. Jones, for appellee.

OPINION

ANDERSON, J.

Appellee, H, Swinney, Sr., brought this action in the circuit court of Copiah county, against appellant, town of Wesson, to recover alleged damages to his property caused by appellant closing one of its streets. There was a verdict and judgment in favor of appellee for one hundred dollars from which judgment appellant prosecutes this appeal.

Appellee's action was based on section 17 of the Constitution, which prohibits the taking or damaging of private property for public use except on due compensation being made to the owner; and section 3336, Code of 1906 (section 5833 Hemingway's Code), which authorizes a municipality to close streets and alleys, but providing that due compensation shall first be made to abutting landowners upon such streets and alleys. The Illinois Central Railroad runs in a northerly and southerly direction through the town of Wesson, the appellant. Appellee owns a lot in a block situated on the east side of the railroad. Appellee's property abuts a street on the west. This street runs north and south, and on the west side of appellee's lot, and adjoins the right of way of the railroad. The block in which appellee's lot is situated is bounded on all four sides by streets, and appellee's lot abuts on three of these streets, the one on the west, the one on the south, and the one on the east. There was a street coming from the west through the town, which was one of its main thoroughfares, crossing the railroad at a point about one hundred feet northeast of the northeast corner of appellee's lot. This street entered the north and south street on the west side of appellee's lot. A large part of the travel on this street coming from the west went south on the street bordering appellee's lot on the west, and a large part of the...