Willmut Gas & Oil Co. v. Covington County

• Decision Date: 15 March 1954
• Docket Number: No. 38859,38859
• Citation: 221 Miss. 613,71 So.2d 184
• Parties: WILLMUT GAS & OIL CO. et al. v. COVINGTON COUNTY.
• Court: Mississippi Supreme Court

Page 184

71 So.2d 184

221 Miss. 613

WILLMUT GAS & OIL CO. et al. v. COVINGTON COUNTY.

No. 38859.

Supreme Court of Mississippi.

March 15, 1954.

W. O. Crain, Shreveport, La., Hannah, Simrall & Aultman, Hattiesburg, Green, Green & Cheney, Avery & Putnam, Jackson, Brunini, Everett, Grantham & Quin, Vicksburg, for appellants.

Hugh McIntosh, John K. Keys, Collins, for appellee.

ARRINGTON, Justice.

This suit was brought in the Chancery Court of Covington County, by Covington County, appellee herein, against appellants Willmut Gas and Oil Company, hereinafter referred to as Willmut, and United Gas Pipeline Company, hereinafter referred to as United, and also against other defendants who have not appealed. The purpose of the action was to cancel certain alleged clouds on the title to sixteenth section school lands asserted by the defendants, to confirm the State's title as trustee, and to recover damages against Willmut and United resulting from the construction of a natural gas pipeline across the sixteenth section, and a reasonable rental for the use of the right-of-way, and to enjoin its further use.

The parties stipulated the relevant facts. For purposes of presenting the issues involved, they may be summarized as follows: The title to the sixteenth section in question, located in Covington County, Mississippi, is vested in the State of Mississippi as trustee for the use and benefit of the schools in the township. None of it has been sold and no one has established title to this section under the twenty-five year adverse possession statute, Code § 6596. On March 3, 1846, the county, through the proper authorities, leased the entire section to Malachia Odom for a term of 99 years. This lease remained in effect until March 3, 1945, its expiration date.

In 1932 Public Service Corporation of Mississippi, hereinafter referred to as Public Service, constructed an eight-inch pipeline for the transmission and distribution of natural gas as a public utility across this section. This pipeline has been used continuously until the present date as a facility of a public utility distributing natural gas. Public Service purchased right-of-way deeds from all persons who were transferces and assignees of Odom under the 99-year lease. Since 1932 natural gas has been continuously transmitted through this pipeline and is available to municipalities in the adjoining area. From 1932 until February 20, 1934, Public Service continued to operate this gas pipeline, and appellee in this suit is not claiming any damages for Public Service's actions during this period. Public Service was adjudicated a bankrupt, and on February 20, 1934 its assets were sold to appellant, Willmut. At that time Willmut took possession of this gas pipeline across the sixteenth section in question, and used and operated it for the stated purposes until August 20, 1943, when Willmut conveyed it to United. Since that date, United has continued to use and operate it.

It was stipulated that 'no trees thereon have been cut, clearing having been completed by Public Service.' Neither the state nor appellee county has received any cash consideration for such right-of-way. The only consideration paid was that paid by Public Service to the persons claiming as assignees from the 99-year lessee, Odom. These persons executed right-of-way deeds to Public Service. United owns a certificate of public convenience and necessity issued by the Federal Power Commission. When the 99-year lease expired on March 3, 1945, Covington County granted agricultural leases for 15-year periods to various parties who were made defendants to this bill; none of them filed answers, and subsequently pro confesso decrees were taken against them.

It was further stipulated that solely for the purpose of this suit, the sum of $30 was a reasonable amount for the use of this sixteenth section for pipeline purposes for each year, and a proportionate amount for each fractional year, but that the board of supervisors of the county has not made any order as to the amount of the rental. In Covington County, the pipeline crosses five of the forty-acre governmental units in this sixteenth section. None of the land is used for any purpose except for agriculture, and 'the reasonable cost per annum for a right-of-way across the said land is $10 per forty, or fractional forty, if Covington County has the lawful authority to exact any cash compensation whatsoever.' Public Service, Willmut, and United have each regularly paid annual ad valorem assessments on the pipeline, except where the same was exempt from taxation, which taxes have been collected by the county. When Public Service constructed the pipeline, no demand for rental was made by appellee or by the State, nor was any demand made upon Willmut or United until October 11, 1951, when this suit was filed. During this period, Public Service, Willmut and United have in good faith claimed a right-of-way from the state across these lands under the conveyances from assignees of the 99-year lessee, and under Miss.Code 1942, Sec. 2780, which is discussed subsequently. It was stipulated that the case could be tried on the pleadings, exhibits, and the agreed statement of facts. No testimony was taken.

The final decree confirmed the title of the State as trustee for the township schools to the sixteenth section, as against all of the defendants, subject to designated unexpired leasehold interests in the section. The decree awarded the county a judgment for $285 against Willmut for the use of the land for right-of-way purposes for a natural gas pipeline for the period from February 20, 1934 to August 20, 1943, and a judgment against United for $275 for the use of this section for the same purposes for the period from August 20, 1943 to date. The trial court further enjoined United 'from in anywise using any portion of the said sixteenth section for right-of-way for the operation and maintenance' of its pipeline now located over and across these lands, and enjoined the operation and maintenance of the pipeline by United over the premises. It allowed United and Willmut an appeal with supersedeas.

Appellants contend that the chancery court erred in its final decree because Code of 1942, Sec. 2780, was a self-executing conveyance to them and to their predecessor Public Service of a right-of-way across this sixteenth section without the requirement of any compensation; and that the consideration for which the State by Sec. 2780 made this grant of a right-of-way was that appellants made available to the State and its citizens natural gas and its accompanying benefits. Code Sec. 2780, as amended by Miss.Laws of 1950, Chap. 358, provides:

'All companies, associations of persons, municipalities, associations of municipalities, or natural gas districts, incorporated or organized for the purpose of building or constructing pipe lines and appliances for the conveying and distribution of oil or gas or for the purpose of constructing, maintaining and operating lines for transmitting electricity for lighting, heating and power purposes, are hereby empowered to exercise the right of eminent domain in the manner now provided by law, and to build and construct the said pipe lines and appliances along or across highways, waters, railroads, canals, and public lands, above or below grounds, but not in a manner to be dangerous to persons or property, nor to interfere with the common use of such roads, waters, railroads, canals and public lands. The board of supervisors of any county through which any such line may pass, shall have the power to regulate, within their respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county and all such companies, associations of persons, municipalities, associations of municipalities or natural gas districts shall be responsible in damages for any injury caused by such construction or use thereof.' (Emphasis added.)

This statute granted to Public Service and to appellants the right to build and construct a pipeline across 'public lands'. And 'public lands' includes sixteenth section school lands. Chap. 11, Title 17, Vol. 3 of the 1942 Code, is entitled 'Public Lands'. And Sec. 4070 in effect includes sixteenth section lands in the category of public lands. We think that the legislature in the use of the phrase 'public lands' in this statute intended the same to include sixteenth section lands. Compare United States v. Bisel, 1888, 8 Mont. 20, 19 P. 251; Union Pacific Ry. Co. v. Douglas Co., C.C. Neb.1887, 31 F. 540; State v. Cumberland Telephone & Telegraph Co., 1899, 52 La.Ann. 1411, 27 So. 795.

The purpose which the legislature evidently had in granting to public utilities such as appellants the right to construct its pipelines across sixteenth section lands is consistent with other analogous legislative grants. Code Sec. 5525 provides that all associations and corporations formed under the Rural Electrification Act are authorized to construct electric lines over unimproved sixteenth sections, and that this shall be without payment to the State for that easement. By Code Secs. 7723 and 7737 railroads are given the power to enter upon, acquire, and use a right-of-way across any lands belonging to the State. Code Sec. 7837 provides that all telephone and telegraph companies are authorized to erect their posts and lines across any of the public highways, streets, or waters, 'and also through any of the public lands'. Hodges, Tax Collector of City of Meridian v. Western Union Telegraph Co., 1895, 72 Miss. 910, 18 So. 84, 29 L.R.A. 770, held that a telegraph company could use the city streets without cash compensation being paid. City of Canton v. Canton Cotton Warehouse Co., 1904, 84 Miss. 268, 36 So. 266, 65 L.R.A. 561, applied the above cited statute to a railroad company crossing city streets. The Meridian case held that such a right is...