White v. Mississippi Power & Light Co.

• Decision Date: 27 February 1967
• Docket Number: No. 44281,44281
• Citation: 196 So.2d 343,30 A.L.R.3d 754
• Parties: Johnnie WHITE v. MISSISSIPPI POWER & LIGHT COMPANY and Illinois Central Railroad Company.
• Court: Mississippi Supreme Court

Page 343

196 So.2d 343

30 A.L.R.3d 754

Johnnie WHITE v. MISSISSIPPI POWER & LIGHT COMPANY and Illinois Central Railroad Company.

No. 44281.

Supreme Court of Mississippi.

Feb. 27, 1967.

Wroten, Orlansky & Miller, Greenville, for appellant.

Bogen, Wilkes & McGough, Lake, Tindall, Davison & McGee, Greenville, Green, Green & Cheney, Bethel Ferguson, Jackson, for appellees.

RODGERS, Justice.

This is a suit for damages for personal injury resulting from an electric shock received by Johnnie White, the appellant. He filed the suit in the Circuit Court of Washington County, Mississippi, against appellees, Mssissippi Power & Light Company and the Illinois Central Railroad Company (hereinafter called Electric Company and Railroad Company.) At the conclusion of the testimony, the court directed a verdict in favor of defendants, appellees here. A judgment was accordingly entered dismissing plaintiff's suit. Plaintiff has appealed to this Court, and contends that the trial court was in error in directing a verdict in favor of defendants, and made certain other contentions which will be discussed separately.

These are the salient facts: On October 18, 1963, Johnnie White, appellant, was engaged in 'flagging trucks' and picking up rags found in slag being moved by the county trucks to the county roads. The trucks were being loaded by a 'dragline' extending from a long metal 'boom' or crane. The slag had been piled around and near poles and high voltage electric wires owned and operated by the defendant, Mississippi Power & Light Company. During the loading process, the regular 'dragline' operator was called to another place to repair a vehicle and he directed his oiler-assistant to operate the dragline in his stead. During the absence of the regular dragline operator, the oiler continued loading the trucks, as they were 'spotted' or placed in position by plaintiff and another employee. The crane or 'boom' swung in a horizontal half-circle from the slag pile under the high voltage electric lines to the trucks. During this operation, the crane struck the high voltage lines. One witness testified that he heard a loud noise 'like a backfire from a truck,' and another witness said he saw a 'flash' go down the boom and also saw it flash near the center of the body of the dragline. The plaintiff heard a noise and turned to run, but at that time he was shocked and seriously burned and injured. He was immediately taken to the hospital where he remained sometime. The testimony shows that he is permanently injured.

The appellant based his claim against the Railroad Company upon an alleged duty of the Reailroad Company to prevent the Power Company from negligently constructing its power lines over the slag pile then being used by the county. He based his suit against the Power Company upon a charge of negligent construction of the high voltage line over the slag pile, and negligent failure of the Power Company to inspect and maintain its wires in a safe condition over the slag pile being used by the county. Appellees contend that they are not liable for the injury to appellant because (1) he was a trespasser upon the land of the Railroad Company at the time of the accident; (2) the Mississippi Power & Light Company had a statutory right to have its wires upon the land of the Railroad Company; and (3) it is not liable to trespassers or licensees upon the land of the Railroad Company. Moreover, it is said that appellant assumed the risk of danger of the power lines found upon the land of the Railroad Company.

In answer to the contention of appellees, the appellant asserts that he was not a trespasser because (1) the deed through which the Railroad Company obtained title to the particular lot of land, here involved, gave the county the right to use the land; (2) the county had been storing slag on the land since 1957, and the Railroad Company acquiesced in, and impliedly consented to, the use of the land by the county, and both appellees are now estopped 'from raising the defense of alleged trespass;' and (3) the Electric Company had no right upon the land described as 'Depot Grounds at Stoneville' because the 'Depot Grounds at Stoneville' did not 'constitute a railroad within the meaning of Mississippi Code Annotated sections 2778 and 2780 (1956),' wherein the Legislature gave the Electric Company the right to erect its lines upon the railroad right-of-way, and denied that the Electric Company 'was lawfully authorized to erect and maintain high tension lines across said parcel of land.'

The appellant points out that the deed from W. E. Hunt, Maria Hunt and Katie H. Stone in 1885 to the Memphis & New Orleans Railroad and Levee Company was made 'for railroad and depot purposes' and it is set out in the deed that 'It is understood and agreed that the present * * * mode of egress and ingress of The Georgia Pacific Ry. Co. is not to be interfered with'; that said Railroad Company shall establish and maintain a regular local station at said Town of Stoneville, and 'for the further consideration of said Railroad and Levee Company agreeing to comply with all the requirements of said above mentioned contract * * * we grant, bargain and sell unto the said Rail Road and Levee Company a right-of-way * * * in addition * * * to the above described right-of-way the said W. E. Hunt, Maria Hunt and Katie H. Stone hereby convey to the said Railroad and Levee Company the following lot or parcel of land.' The deed described the parcel of land here involved. The deed contained the following: 'It is understood and agreed * * * that a public roadway shall be kept open from the present public on Deer Creek to said depot grounds which shall be for the public convenience at the around said depot or station. To have and to hold for the purposes herein mentioned to the Memphis & New Orleans Railroad and Levee Company successors or assigns forever * * *.'

I

There is some authority to support the appellant's contention that the agreement in a deed from a grantor to a railroad company requiring it to locate, construct and maintain a station or depot upon the land described in the deed, where it is a part of the consideration, is a covenant and is condition precedent or condition subsequent, as the case may be, and such covenant runs with the land. The breach of such a covenant renders the Railroad Company or its successors in title liable in damages. See cases collected in 74 C.J.S. Railroads §§ 484, 485, 488, 492 (1951).

Assuming that the appellant is correct in his contention that the deed gave the public a right of ingress and egress across the land involved, it did not give Washington County the unrestricted right to take possession of and totally cover with slag the parcel of land described in the deed for three reasons:

(1) The photographs filed as exhibits showed, and plaintiff admitted, that there is a roadway across the lot of land and as such it is land still used for the public convenience; (2) no objection has been made by the Railroad Company to the public use of the roadway; and (3) the testimony shows that no station or depot building has been on the lands here involved for more than forty years. The covenant in the deed was therefore breached many years ago. Where a covenant runs with the land, the covenant may be enforced by a member of a class of persons for whose benefit the deed is made although he is not a party to the instrument. A cause of action for the breach of a covenant accrues immediately upon its breach, and suit may be brought during the ownership of the assignee. On the other hand, actions for the breach of a covenant are subject to the defense of the statute of limitations, so that after the statute has run, suit may not be maintained to enforce the covenant. Scheller v. Tacoma Ry. & Power Co., 108 Wash. 348, 184 P. 344, 7 A.L.R. 810 (1919); 14 Am.Jur. Covenants, Conditions and Restrictions §§ 37, 39, 40 (1938). See also 75 C.J.S. Railroads § 93(b) (1951).

The county did not therefore have a right to invade the property here involved where the right of the covenantee had lapsed because the right to enforce the covenant had been barred many years by the statute of limitations. Miss.Code Ann. §§ 709, 710, 743 (1956). It is not true, as contended by appellant, that the Railroad Company is estopped to defend the suit against it upon the ground that the county had been using the plot of land known as the 'Depot Grounds at Stoneville' for many years without objection from the Railroad Company, and it thereby 'acquiesced in, impliedly consented to, permitted and licensed the use of said premises by him and Washington County Road Department.' At most, the failure of the Railroad Company to object to the use of the land by the covenantee could amount to no more than a license to go upon the land. The issue then is whether or not the county and its employees were 'tenants at will,' 'licensees' or 'trespassers' upon the property of the Railroad Company. Turner v. Morris, 196 Miss. 297, 17 So.2d 205 (1944); 52 Am.Jur. Trespass § 44 (1944); Annot. 76 A.L.R. 310 (1932).

The relationship of tenant-at-sufference arises only when a person comes into possession of land lawfully but holds over wrongfully as a result of neglect on the part of the landowner to assert his right of possession. The relationship of tenancy-at-sufference may be established by actual permission to occupy land, or permission may be implied from circumstances growing out of the long-time use of land with knowledge and the failure of the owner to object to the occupancy of the land. 51 C.J.S. Landlord and Tenant §§ 159, 176 (1947).

In Marlon Investment Company v. Conner, 246 Miss. 343, 349, 149 So.2d 312, 314, 315 (1963), we said that 'A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.' In 65 C.J.S. Negligence § 63(3) (1966) the textwriter said:

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