Whelan v. Johnston
| Citation | 192 Miss. 673,6 So.2d 300 |
| Decision Date | 23 February 1942 |
| Docket Number | 34791. |
| Court | United States State Supreme Court of Mississippi |
| Parties | WHELAN et al. v. JOHNSTON et al. |
May & Byrd, of Jackson, Walter Sillers, of Rosedale, Harry G Gwinnup, of Jackson, E. C. Craig, of Chicago, Ill., and C. H McKay and Lucius E. Burch, both of Memphis, Tenn., for appellants.
J G. Holmes, of Yazoo City, for appellees.
The Yazoo and Mississippi Valley Railroad Company was chartered in 1882 by Chapter DXLI of that session of the Legislature. Section 7 thereof provides:
"That the right of way is hereby granted said company to pass in and through the State of Mississippi, with said railroads branches, spurs and laterals aforesaid, and to enter upon and use all lands, rocks, timber, earth, sand, gravel, water or other materials, which may be found on the routes selected, and which may belong to the State of Mississippi, and be convenient or necessary for the use of said railroads; and wherever said railroads or the branches, spurs or laterals aforesaid are located, over any lands belonging to this State, the title in fee simple, to one hundred feet on each side of the center of said railroad track or tracks shall vest in said company, its successors and assigns; * * * and to enter upon and appropriate all such lands and materials as may be private property, which may be convenient or necessary for said road, together with one hundred feet on each side of the center of such road, laterals, branches, or spurs; and in case the company fails to agree with the owners of such lands or materials upon the price to be paid for the fee simple title thereto, or in case the owner is under any disability in law to contract, or is absent from the county where such lands or materials are situate, or is unknown, the company may proceed to condemn such lands or materials as provided in section eight of the act, approved March 10, 1852, entitled 'an act to incorporate the Mississippi Central Railroad Company,' with all the rights and powers as therein provided; and upon such condemnation being had, the title in fee simple to such lands or materials, shall vest in the said company, its successors and assigns."
The pertinent parts of c. 21, Section 8 of the Act of 1852 incorporating the Mississippi Central Railroad Company are:
"And in case of disagreement with the owner as to price of the land required for said road," a justice of the peace on application to him therefor shall impanel a jury of twelve "who shall act as a jury of inquest of damages, having an oath or affirmation administered first to each by said sheriff or justice of the peace, justly and impartially to value the damages which the owner or owners will sustain by the use or occupation of the land, materials, or property required by said company; and the jury in estimating the damages, if for the ground occupied by said road shall take into the estimate the benefit resulting to such owner or owners by reason of said road passing through or upon said land, towards the extinguishment of such claim for damages; and the jury shall reduce their inquisition to writing and shall sign and seal the same; and such valuation when paid or tendered to the owner or owners of such property, his, or her or their legal representatives, if found in the county or thereafter paid on demand of any person legally authorized to receive the same shall entitle said company to the land, the estate and interest thus valued as fully as if it had been conveyed by the owner or owners of the same, for such term of time as said company shall occupy the same as a railroad."
Acting upon the authority thus conferred a jury impanelled by a justice of the peace on the 11th day of September, 1882, rendered the following verdict:
"We the undersigned Jurors, being disinterested free holders of said County, and being first duly summoned, sworn and directed to assess the damages that will be sustained by O. H. Brumfield and J. M. Brumfield, the owners of the following described parcel of land in said County, to-wit: One hundred feet on each side of the staked line of said Railroad, being at Station 1803, and running to Station 1820, being a strip of land Two Hundred feet in width and Seventeen hundred feet in length, and also seventy-five feet on each side of said line from Station 1820, and running to a point twenty-one feet beyond Station 1852, being a strip of land One hundred and fifty feet in width and thirty two hundred and twenty one feet in length, all in Section Two, Township Ten, Range Three West, containing in all 18.68/100 acres, by reason of the use and occupation of said parcels of land by said Company, and having met upon and duly examined said property and being fully advised in the premises, upon our oaths, we the Jury do say said damages amount to Nine Hundred & Forty-Seven 85/100 Dollars, and in assessing the amount of said damages, the same was not diminished by a consideration of any benefit which would accrue to said O. H. Brumfield and J. M. Brumfield, by the building of said railroad-& we direct that plaintiff pay said damages and the costs herein expended."
Appended thereto after the signatures of the jurors is the following receipt:
"Yazoo City, Miss. Sept. 15, 1882.
Received of the Yazoo and Mississippi Valley Railroad Company Nine Hundred and Forty-seven 85/100 Dollars in payment of the above damages.
J. E. Everett, Atty.
for O. H.-J. M. Brumfield."
The recital in this verdict that "in assessing the amount of said damages, the same was not diminished by a consideration of any benefit which would accrue to the said O. H. Brumfield and J. M. Brumfield by the building of said railroad" was evidently inserted therein for the reason that in Brown v. Beatty, 34 Miss. 227, 69 Am.Dec. 389, this Court, or rather its predecessor the High Court of Errors and Appeals, held that the provision of Section 8 of the Mississippi Central Railroad Company's charter that "the jury in estimating the damages, if for the ground occupied by said road, shall take into the estimate the benefit resulting to such owner, or owners, by reason of said road passing through or upon said land, towards the extinguishment of such claim for damages" was constitutionally invalid.
The Yazoo & Mississippi Valley Railroad Company granted to Whelan the right to enter the land thus acquired by it and remove oil and gas therefrom. Lucy and Maggie Brumfield, who claim through the Brumfields, who owned the land when it was appropriated by the railroad company, have...
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