STOCKSTILL, ET AL. v. PEARL RIVER COUNTY

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 41142.

Judges

HALL, J.

See more information ...

Smart Summary

Please sign up to generate summary.

STOCKSTILL, et al. v. PEARL RIVER COUNTY, MISS.

Tate Thigpen, Picayune, for appellants.

I. The lower court erred in overruling the plea to the jurisdiction for the reason that the order of the Board of Supervisors of Pearl River County failed to adjudicate and judicially determine that the taking of appellants' land was for the public use and for the public interest and convenience for use as a public road, and was therefore void, leaving the court with no jurisdiction of this matter. Hill v. Woodward, 100 Miss. 879, 57 So. 294; Brown v. Beatty, 34 Miss. 227; Ferguson v. Wilkinson County, 149 Miss. 623, 115 So. 779; Aden v. Issaquena County, 142 Miss. 692, 107 So. 753; Craft v. DeSoto County, 79 Miss. 618, 31 So. 204; Secs. 17, 90, Constitution 1890; Secs. 8314, 8327, Code 1942.

II. The lower court erred in admitting the testimony of the members of the Board of Supervisors and county engineer for reason that none of these witnesses fixed any value before the taking, or after the taking, and they all failed to qualify as experts, or as being familiar with the land proposed to be taken, or with any lands in the adjacent territory, all over objection of appellants. Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Sullivan v. Board of Supervisors, 58 Miss. 790; Highway Comm. v. Treas, 197 Miss. 670, 20 So.2d 475.

III. The lower court erred in excluding the testimony of Bert Wilkes, as to cost of filling portion of remaining land to replace area proposed to be taken, thus depriving the jury of the essential elements necessary in evaluating the testimony so as to arrive at a fair market value before and after the taking. Highway Comm. v. Hillman, supra; Highway Comm. v. Treas, supra; Highway Comm. v. Hudgins, 182 Miss. 518, 181 So. 719; Rasberry v. Calhoun County, 230 Miss. 858, 94 So.2d 612; Baker v. Highway Comm., 204 Miss. 166, 37 So.2d 169.

IV. The lower court erred in excluding testimony as to the influence of the stream and water frontage on the value of the property being taken. Highway Comm. v. Hillman, supra; Board of Levee Comrs. of Yazoo-Miss. Delta v. Lee, 85 Miss. 508, 37 So. 747; 18 Am. Jur. 880.

V. The lower court erred in refusing a new trial for the reason that the testimony shows that the verdict of the jury is contrary to the overwhelming weight of the testimony in the record, as to the amount of appellants' damage. Highway Comm. v. Buchanan, 175 Miss. 157, 166 So. 537; Campbell v. Covington County, 161 Miss. 374, 137 So. 111; Skrmetti v. Highway Comm. (Miss.), 43 So.2d 649.

Morse Morse, Poplarville, for appellee.

I. Where the Legislature grants the right of eminent domain in special instances, without specifically requiring a finding of public necessity, no such order is required; but assuming arguendo that such order is required, the question cannot be raised in a court of eminent domain since that court only has power to determine the damages and its jurisdiction can only be tested by writ of prohibition or injunction; but if mistaken in all the foregoing, the question is now moot since the Board has already expropriated the land and built a road thereon in accordance with the plans and specifications on file herein. Puyper v. Pure Oil Co., 215 Miss. 121, 60 So.2d 569; Erwin v. State Highway Comm., 213 Miss. 885, 58 So.2d 52; Sec. 8035-01, et seq., Code 1942.

II. At any rate, the question is moot since the road has been constructed and built as shown by the special plea attached hereto together with affidavits. McDaniel v. Hurt, 92 Miss. 197, 88 Miss. 769, 41 So. 381; Adams v. Carter, 92 Miss. 578, 46 So. 59; McInnis v. Simmons, 162 Miss. 606, 139 So. 872; Board of Suprs. Kemper County v. Nevelle, 95 Miss. 56, 48 So. 727; Dantzler v. Highway Comm., 187 Miss. 721, 193 So. 4.

III. In an eminent domain proceeding, the court of eminent domain has jurisdiction only to determine the damages due the defendant, the sole remedy to question of jurisdiction being by writ of prohibition or in special cases injunction. Vinegar Bend Lbr. Co. v. Oak Grove, 89 Miss. 84, 43 So. 292; Cage v. Frazer, 60 Miss. 563, Secs. 2757, 8314, Code 1942.

IV. Where a special court of eminent domain is organized, the writ of prohibition is the sole method by which the question of public necessity may be raised. Mississippi Highway Comm. v. Cockrel, 205 Miss. 826, 39 So.2d 494; Erwin v. State Highway Comm., 213 Miss. 885, 58 So.2d 52.

V. There is substantial evidence in the record to support the jury's verdict, and it is further supported by the jury's actual view of the premises. Clements v. Town of Carrollton, 216 Miss. 859, 63 So.2d 398; National Box v. Bradley, 171 Miss. 15, 154 So. 724.

VI. The testimony of the witnesses for the county was properly admitted as they were familiar with the general value of land in the premises. State Highway Comm. v. Hilman, 189 Miss. 850, 198 So. 565.

VII. The court properly excluded the testimony of Wilkes as to the cost of filling that portion of remaining land to replace the area proposed to be taken. Anderson-Tully Co. v. United States, 189 F.2d 192, 342 U.S. 826, 96 L.Ed. 624, 72 S.Ct. 47; State Highway Comm. v. Day, 181 Miss. 708, 180 So. 794; State Highway Comm. v. Hilman, supra.

1. Eminent domain — failure of board of supervisors to adjudicate on its minutes that public interest and convenience required taking — fatal.

Failure of board of supervisors to adjudicate, in order for bringing of eminent domain suit, that public interest and convenience required taking, invalidated condemnation proceeding.

2. Eminent domain — question of public interest and convenience properly raised by special plea to jurisdiction of board of supervisors — prohibition not the exclusive remedy.

Landowners could have maintained suit for writ of prohibition, but statute did not make that their exclusive remedy, and they were entitled to raise by special plea to jurisdiction, in condemnation case, matter of board's failure to adjudicate, in order for bringing of eminent domain suit, that public convenience and necessity required taking. Sec. 278, Code 1942.

3. Eminent domain — fact that land had been appropriated and road built by condemnor as not rendering question of public interest and convenience moot.

With regard to condemnor's contention, that question as to necessity of adjudication by board that public interest and convenience required taking was moot because land had been appropriated and road had been built, plea in bar and attached affidavit to that effect merely went to show that condemnor was a trespasser on condemnees' land.

Headnotes as approved by Hall, J.

HALL, J.

This is an appeal from a judgment in favor of the appellants in an alleged eminent domain proceeding brought by the appellee. Judgment was rendered in the amount of $50.00 in the eminent domain court presided over by a justice of the peace and on appeal to the circuit court judgment was rendered in the amount of $175.00, and the appellants bring the case to this Court assigning several alleged errors.

We think it is necessary to discuss only one of the errors assigned. The original defendants filed a special plea to the jurisdiction of the board of supervisors and the county, alleging that the order of the board of supervisors for the bringing of an eminent domain suit did not adjudicate the public interest and convenience for the suit.

The order is too long to quote in full and we simply say that nowhere in the order is there any adjudication whatsoever as to the public interest and convenience for the suit. It simply orders that the attorney for the board "be instructed and directed to file an eminent domain suit to obtain an easement over and across the above lands in the width of thirty feet for a road." (Hn 1) In the case of Ferguson v. Board of Supervisors of Wilkinson County, 149 Miss. 623, 631, 115 So. 779, the Court said: "We are of the opinion that the failure of the board to adjudicate, on its minutes, that the laying out and establishment of the public road through appellant's lands was required by the public interest or convenience was jurisdictional, and that therefore the order appealed from was void."

(Hn 2) The appellee contends that the appellants were entitled to a writ of prohibition under Section 2782 of the Code of 1942. It is true that they could have maintained a suit for such a writ, but the statute does not make this the exclusive remedy and we thing that the appellants were entitled to raise the question of public interest and convenience just as they did raise it.

(Hn 3) The appellee also contends that the question is now moot because the land has been appropriated and the road built, and they file a plea in bar supported by an affidavit to this effect. We think that the plea in bar with its attached affidavit merely goes to show that the appellee is a trespasser on appellants' land.

For the reasons stated the judgment of the lower court is reversed and the eminent domain suit dismissed.

Reversed and writ of eminent domain dismissed.

Roberds, P.J., and Arrington, Ethridge and Gillespie, JJ., concur.

STOCKSTILL, et al. v. PEARL RIVER COUNTY, MISS.

Comments