Wood v. Mississippi Power Co., 42397

• Decision Date: 12 November 1962
• Docket Number: No. 42397,42397
• Citation: 146 So.2d 546,245 Miss. 103
• Parties: Dr. James P. WOOD v. MISSISSIPPI POWER COMPANY and Guy Walker.
• Court: Mississippi Supreme Court

Page 546

146 So.2d 546

245 Miss. 103

Dr. James P. WOOD v. MISSISSIPPI POWER COMPANY and Guy Walker.

No. 42397.

Supreme Court of Mississippi.

Nov. 12, 1962.

Curtis Breland, Leakesville, Morse & Morse, Jackson, for appellant.

Eaton, Cottrell, Galloway & Lang, Gulfport, Heidelberg, Sutherland & McKenzie, Hattiesburg, for appellees.

KYLE, Justice.

This case is before us on appeal by Dr. James P. Wood, plaintiff, from a judgment of the Circuit Court of Greene County rendered in favor of the Mississippi Power Company and Guy Walker, an employee of Sidney L. Ragland, an independent contractor, defendants, in an action for the statutory penalties for the wrongful cutting of trees on the plaintiff's land situated in Greene County.

The record shows that the Mississippi Power Company is a corporation engaged in the business of generating, transmitting, distributing and selling electric power and as such has power to condemn property by eminent domain proceedings; and that on February 9, 1960, it obtained from the Mississippi Public Service Commission a certificate of public convenience and necessity authorizing the company to survey, purchase right of way and construct approximately 50 miles of 115 kilovolt electric transmission line to connect the Waynesboro 115 KV substation and the Lucedale 115 KV substation. The Company contracted with Sidney L. Ragland, Consulting Engineer of Jackson, Mississippi, to make a survey of the proposed transmission line, to select the most advantageous route therefor and to lay the same out on the ground. The survey was begun during the latter part of 1960 and was completed in the early part of 1961. The cost of the survey was approximately $17,000.00. The purpose of the survey was: First, to select the most advantageous route for the construction of the transmission line from Lucedale to Waynesboro; second, to mark the center line of the route on the ground with stakes; and third, to secure engineering data in the field for preparation of property maps to be used in the acquisition of rights of way, and preparation of profile sheets to be used by the design engineers to design a line adaptable to the particular property and route selected.

The preliminary layout of the 50-mile route was initially made by the Company's engineer by use of county maps and aerial photographs of the counties involved, selecting the most direct and advantageous route which it was possible to select with the use of the aerial photographs, so as to aboid obvious obstructions, such as swamps, rivers, roadways, large communities and even individual houses. The general tentative route thus selected was marked off with a red pencil line and the photographs were delivered to the survey contractor, Sidney L. Ragland, for further examination in the field. He and his survey parties then made the actual field survey, and determined, selected and marked the final location of the center line, making such alterations and adjustments as were necessary due to obstructions and terrain encountered in the field, which did not appear on the aerial photographs.

The record shows that, during the month of September or October, 1960, Ragland's survey party, with the appellee Guy Walker as party chief, while making the survey from Lucedale to Waynesboro, entered on the 500-acre tract of land owned by the appellant in Greene County, without consulting him, and ran two separate lines across five 40-acre tracts, a total distance of 6,631 feet. The land was unoccupied, open, wild land, with pit fences or improvements. The appellant at the time the survey was made, was a nonresident of the State of Mississippi. Guy Walker did not know who owned the land. The survey party, in making the survey across the appellant's land, cleared and trimmed underbrush and also cut a number of small trees. It is undisputed that such clearing, cutting and trimming, as was done, was necessary in order to make the survey. The appellant's own forester, William A. Prather, testified that the survey was normal for such line, the usual type of cutting one would normally expect to see in the making of such survey. Although the appellant's declaration averred that 1036 trees were cut, the appellant's forester testified that 999 trees were cut ranging from the size of a pencil upward. Neither Prather nor the appellant stated definitely the size of the trees included in the count. The only witnesses actually testifying on this point agreed that no more than 25 trees four inches in diameter or larger were cut, and only a few of those were larger than 8 inches. The appellant was questioned as to the actual value of the trees which were cut. His answer was, 'The value was nominal. I was just fussing about the principle of the thing.' When pressed for an estimated amount, he said, 'Around $100.'

The record also shows that the appellees entered upon the appellant's land to make the survey and did the cutting on the advice of counsel that they had the legal right to do so.

On April 11, 1961, the Mississippi Power Company instituted an eminent domain proceeding to condemn a 100-foot right of way through the property of the appellant and on the 24th day of April, 1961, the appellant applied for a writ of prohibition against the Power Company to stay the hearing in the court of eminent domain, and a temporary writ was issued. On April 28, 1961, the appellant filed his action in tort seeking to recover the statutory penalties provided for in Section 1075, Code of 1942, Rec., for the wrongful cutting of trees.

The appellant alleged in his declaration that the defendants, Mississippi Power Company and Guy Walker, acting under its direction, entered his land without his consent and unlawfully cut 1036 trees of various species and demanded judgment in the amount of $12,660 for statutory penalties. The appellant did not seek to recover actual damages, but only statutory penalties. The appellees in their answer admitted entry on the appellant's land without his permission, but averred that the entry was made under the authority granted by Section 2776, Miss. Code of 1942, Rec., and a certificate of public convenience and necessity issued by the Mississippi Public Service Commission. The appellees admitted that Guy Walker and the members of the survey party did some clearing and trimming and cut a few trees of nominal value only, but averred that such cutting was necessary to make the survey. The appellees interposed a plea of good faith as an affirmative defense; and the appellees denied that they were liable for statutory penalties for the cutting of trees incident to the survey.

On November 8, 1961, the Court, after a hearing upon its merits, overruled the appellant's application for a writ of prohibition; and on November 14, 1961, the appellant's suit for the recovery of statutory penalties was tried before a jury. The question of good faith and the reasonableness of and necessity for the clearing and cutting were submitted to the jury, under proper instruction of the court. The jury returned a verdict for the defendants, and judgment was thereupon entered in favor of the defendants. From that judgment the plaintiff has prosecuted this appeal.

The main point argued on behalf of the appellant as ground for reversal of the judgment of the lower court is, that the court erred in holding that Mississippi Power Company had a right, either through its own efforts or through the agency of an independent contractor, to invade the possession of the appellant and to make such examination and survey as might be necessary to the selection of the route for the electric transmission line, without the appellant's knowledge or consent.

It is argued that the statute under which the Power Company claimed such right of entry upon the appellant's land (Code Section 2776, supra), is unconstitutional, for the reason that the statute is in conflict with Section 17 of the State Constitution of 1890, which provides that, 'private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law * * *.' It is also argued that the statute is violative of Section 14 of the State Constitution, which provides that, 'No person shall be deprived of life, liberty, or property except by due process of law.'

It is also argued that, even if the Power Company had the right under Code Section 2776, as a public utility, to enter upon the appellant's lands and make the examination and survey, it could not employ an independent contractor, who did not have the right of eminent domain, and give him the protection which the Power Company itself would have had under the statute if the examination and survey had been made by the Power Company.

We think there was no error in the holding of the trial judge that the Power Company had the right to enter upon the appellant's land and make such examination and survey as was necessary for the proper location of the proposed transmission line.

Section 2751, Code of 1942, Rec., which appears as a part of the Code Chapter on Eminent Domain, provides that, 'When any person or corporation having the right so to do shall desire to exercise the right of eminent domain, he or it shall make application therefor in writing, and the owners of the property sought to be condemned and * * * other persons having an interest therein * * *, shall be made defendants thereto, which shall state with certainty the right and describe the property sought to be condemned, showing that of each defendant separately.'

Section 2776, Code of 1942, Rec., which also appears as a part of the Code Chapter on Eminent Domain, provides as follows: 'Railroads, street or interurban railroads, mining, lighting, power, telephone, and telegraph corporations, and all other corporations, * * *, having rights and powers to condemn property may cause to be made such examinations and surveys...