Yazoo & M. V. R. Co. v. Bolivar County

• Decision Date: 07 February 1927
• Docket Number: 25214
• Parties: YAZOO & M. V. R. CO. v. BOLIVAR COUNTY. [*]
• Court: Mississippi Supreme Court

111 So. 581

146 Miss. 30

YAZOO & M. V. R. CO. v. BOLIVAR COUNTY. ^[*]

No. 25214

Supreme Court of Mississippi

February 7, 1927

Division A

Suggestion of Error Overruled March 21, 1927.

APPEAL from chancery court of Bolivar county, Second district, HON C. L. LOMAX, Chancellor.

Suit by Bolivar County against the Yazoo & Mississippi Valley Railroad Company. Decree for complainant, and respondent appeals. Reversed and decree rendered.

Decree reversed.

H. D. Minor, Chas. N. Burch and Shands, Elmore &amp Causey, for appellant.

I. The state had the undoubted and unlimited power in 1833 to dispose of sixteenth section lands. Cooper v Roberts, 18 How. 173; Jones v. Madison County, 72 Miss. 777, after reviewing Hester v. Crisler, 36 Miss. 681; and Board v. E. Miss. Mills, 16 So. 210. Jones v. Madison County, has since been referred to by the court and its correctness never denied. Robertson v. Monroe County, 118 Miss. 536. Even since the Constitution of 1890 the power of the state to sell and convey the timber on such lands has been upheld. Dantzler Lbr. Co. v. State, 97 Miss. 355.

Further argument, therefore, seems unnecessary on the proposition that the state's power to sell and convey these sixteenth sections was in 1833 without limitation. There was no limit on the state's power until the Constitution of 1890, section 211.

II. Under the law as it existed at the time the board of supervisors granted this right of way to defendant's predecessor (1883), there was authority in the board of supervisors to make a lease for ninety-nine years. Sections 732 et seq., Code of 1880, supersede all public laws on the subject of conveying sixteenth section lands. Lbr. Co. v. Harrison County, 89 Miss. 523; Code of 1880, section 732; Hemingway's Code, section 7509; infra, pages 12-20.

III. The board of supervisors having authority to make a lease for ninety-nine years and having undertaken to grant a right-of-way to defendant's predecessor in title, there is, by statute (Hemingway's Code, section 7509), a conclusive presumption--in view of the fact that forty years have elapsed--that everything necessary to a proper exercise of the authority of the board of supervisors was done.

Hemingway's Code, section 7509, is a copy verbatim of section 4148, Code of 1892, and section 4699, Code of 1906. The rule created by this section has been frequently applied. Carroll County v. Estes, 72 Miss. 173; Amite County v. Steen, 72 Miss. 567; Forsdick v. Tallahatchie County, 76 Miss. 622.

IV. The same presumption exists by virtue of the recognized equity principle that after the lapse of forty years a valid grant will be presumed. While Hemingway's Code, section 7509, puts in statutory form the principle we rely on, the same principle has often been declared and applied, as a maxim of equity, by our courts in other cases even when the state is affected. Caruth v. Gillespie, 109 Miss. 679; Stevenson v. McReary, 12 S. & M. 50; 2 C. J., page 292; Scales v. Cockrill, 3 Head. (Tenn.) 432; Rogers v. Nabe, 15 N.C. 180.

V. The complainant is barred by laches. Comans v. Tapley, 101 Miss. 222; Naddo v. Bardon, 53 F. 493; Norris v. Burnett, 108 Miss. 415; Lodge v. Knights, 102 Miss. 283; Smith v. Jassen, 105 Miss. 299; Aetna Ins. Co. v. Robertson, 131 Miss. 428; Nixon v. Carco, 28 Miss. 430.

VI. The defendant has acquired a good title by adverse possession. That the payment of taxes is an important element in considering the doctrine of laches and that of the equitable presumption of a valid grant--also the adverse possession mentioned in the statute already reviewed (Hemingway's Code, section 7509)--is clear in Mississippi. Caruth v. Gillespie, supra; McCaughn v. Young, 85 Miss. 293; Holtzman v. Douglas, 168 U.S. 284.

VII. The fact that complainant is an arm of the state does not prevent the application of the doctrine of laches or that of a presumption of valid grant above stated. It cannot be said that the state and its subdivisions are not to be affected by the negligence of their respective officers. Jonestown v. Ganong, 97 Miss. 83; Jones v. Madison County, 72 Miss. 804.

VIII. This case differs from the ordinary claim of possession founded on lapse of time for the defendant here is occupying the land for the purpose of a public highway--railroads being declared by the Constitution of 1890 to be public highways.

IX. The grant to defendant was no breach of the trust under which the state holds these lands. On the contrary, it was an advancement of the trust.

X. The provision of the Constitution of 1890, that a railroad company shall not pass within three miles of a county seat without passing through it, is an important consideration.

XI. This case is not at all like that of Y. & M. V. R. R. Co. v. Sunflower County, 125 Miss. 92. The two cases are wholly dissimilar.

XII. The statute, Hemingway's Code, section 7509, provides, "If the claim be under a lease, the time at which the leases expires shall be fixed by the court." As this railroad is, under the constitution, a public highway and its continued operation is absolutely essential to the well-being of a large section of the state, the period of this lease should be fixed by the court at the maximum--ninety-nine years.

Frank A. Reid, Miles, Waring & Walker and Green, Green & Potter, amici curiae, for appellant.

(1) (a) Appellee filing bill to cancel cloud upon title must show fairness of his title. Longmire v. Mars, 124 Miss 77; Lumber Co. v. Lumber Co., 87 Miss. 773, 40 So. 485. A lease executed in 1886, validated by chapter 186, Laws of 1886, appeared with title thereunder outstanding; whereupon obligation of showing invalidity thereof rested upon appellee. Goff v. Avent, 122 Miss. 86, 84 So. 134; Gilchrist-Fordney Co. v. Keys, 113 Miss. 742, 74 So. 619; Jones v. Rogers, 85 Miss. 726, 38 So. 742. Pearman lease valid. Jones v. Madison County, 72 Miss. 790; Corinth v. Robertson, 125 Miss. 31, 87 So. 468; Robertson v. Monroe County, 118 Miss. 520, 79 So. 185. This court takes judicial knowledge of its own records (23 C. J., 109). Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107, held Pearman lease invalid solely because affirmatively on supervisor's minutes consent of inhabitants of township did not appear (which was then jurisdictional and compulsory under the law under the rule of Hester v. Crisler, 36 Miss. 681. Thereafter Lauderdale County v. East Mississippi Mills, 16 So. 210, 18 So. 87, and Jones v. Madison County, 72 Miss. 792, 18 So. 87, held consent inhabitants not a prerequisite, overruling Hester v. Crisler and assuming to establish Georgia as donor instead of the United States for sixteenth sections. Thus the only reason of the alleged invalidity--consent of the inhabitants--being obviated, the Legislature in 1896 validated, and such validation is not incontestable. (a) Under presumed grant and presumption of whatever else may be requisite. Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Hewling v. Blake, 70 So. 248, 110 Miss. 225; Native Lumber Co. v. Elmer, 78 So. 705, 117 Miss. 720; Scarborough v. Native Lumber Co., 79 So. 84, 118 Miss. 138. (b) This grant as thus made cannot be collaterally attacked. Ingram-Day Lumber Co. v. Robertson, 92 So. 289, 129 Miss. 365. (c) The inhabitants of the township estopped by receipt and retention of consideration during a period of forty years. Ingram-Day v. Robertson, 92 So. 289; 129 Miss. 365; Trustees v. Vincennes, 14 Howard, 268. (d) The Constitution did not prohibit restitution of wrongfully obtained property. Carter v. Henry, 88 Miss. 21, 40 So. 995; Hancock Co. v. Shaw, 81 So. 648. (e) This act of the legislature, depending upon extraneous facts, should be presumed to be valid, the legislature being vested with discretion thereasto and solely accountable under the Constitution. Hunt v. Wright, 70 Miss. 107, 11 So. 608; Mayor v. State, 102 Miss. 663, 59 So. 873; State v. Jackson, 81 So. 1, 119 Miss. 727. (f) Whatever the legislature could have constitutionally originally dispensed with they can subsequently eliminate without impairing vested rights. Southern Coal Co. v. Yazoo County, 118 Miss. 860, 80 So. 334; Powers v. Penny, 59 Miss. 12, Dingey v. Paxton, 60 Miss. 1055; Hancock Co. v. Shaw, supra; Deans v. Robertson, 64 Miss. 195, 1 So. 159; Hamilton v. Halpin, 68 Miss. 99, 8 So. 739. (g) After forty years of appropriation presumption becomes conclusive, and the inhabitants unable to complain when legislature authorized the act, the exercise of their discretion not subject to review. Authorities supra. (2) Proper parties not before the court. This decree cancels fundamental rights of parties not before the court; wherefore the court sua sponte could dismiss. Garzot v. Rios, 209 U.S. 52; Minnesota v. Northern Securities Co., 184 U.S. 199; Sivley v. Summers, 57 Miss. 730. (3) Section 211 of the Constitution prospective, not retrospective. Hancock Co. v. Shaw, supra; Ex parte Jones, 112 Miss. 27, 72 So. 846; Adams v. Dendy, 82 Miss. 135, 33 So. 843; Lum v. Vicksburg, 72 Miss. 960; Corinth v. Crittenden, 94 Miss. 41, 47 So. 525; Adams v. Kuykendall, 83 Miss. 571, 35 So. 830. (4) Section 212 of the Constitution not self-executing. I. I. & C. case, 81 Miss. 174; Schilher v. Bordeaux, 64 Miss. 59; Delphia Jackson v. Collins, 16 B. Monroe, 214; In re State Census, 62 N.W. 129; Spinney v. Griffith, 98 Cal. 151; Fux v. Spennhorst, 67 Mos., 256; Brown v. Seay, 5 So. 215; Green v. Aker, 11 Ind. 223. (5) Should section 211 of the Constitution adversely affect the rights under the Pearman lease, then: (a) An impairment of the obligation of a contract by a state law; and (b) Deprivation of property without due process. A state constitution is a law subordinate to the Federal power. 12 C. J., 988; Keith v. Clark, 97 U.S. 454. (6) Congressional act of 1...