Opinion
No. 32542.
January 25, 1937.
EMINENT DOMAIN.
Landowners held entitled to recover compensation from State Highway Commission for strip of land taken for state highway without condemnation or compensation, as against contention of commission that it was not at time of taking of land a corporation so that it could be sued, where commission was thereafter incorporated, since trespass was continuing one so that cause of action arose when commission was incorporated (Laws 1930, chap. 47; Const. sec. 17).
APPEAL from the circuit court of Covington county. HON. EDGAR M. LANE, Judge.
E.R. Holmes, Jr., Assistant Attorney-General, for appellant.
It is not the contention of the appellant in this suit that the appellees should not be paid for the taking and appropriating for public use, a part of their property, but it is appellant's contention that under the agreed facts in this case the taking and appropriation to public use occurred in the year 1929, at a time when the State Highway Commission was not a body corporate and could not sue nor be sued and did not have the power to purchase or condemn rights of way. Prior to the passage of the Stansel Bill, which was chapter 47 of the Laws of 1930, the Highway Commission merely acted in a supervisory capacity in the constructing of state highways. It had the power to maintain state highways, but it had no power to obtain rights of way, except through the boards of supervisors of the several counties.
The facts in this record show that the actual taking and appropriation to public use of a part of the appellees' property was in 1929 which was at a time when the Highway Commission had no power to take it at all. The board of supervisors of Covington county had the power to take a part of appellees' land for public use and it had the corresponding duty to pay for the land if it took it. Section 5006, paragraph (c), which, in 1930, allowed suits to be instituted against the State Highway Commission, is not retroactive and can have no application to a taking and appropriation of land for public use prior to its enactment.
If the Highway Department had damaged appellees' property by an additional taking or had necessarily damaged appellees' property by proper maintenance after the passage of section 5006, paragraph (c), in 1930, a judgment might have been rendered against the Highway Commission, but the agreed statement of facts in this case specifically says that no damage has been caused plaintiffs' property by reason of any maintenance and that since the completion of the road, as originally laid out in 1929, it has followed along the bounds already designated.
We point out to the court that the damages which the plaintiffs, appellees here, have suffered in this case are the same damages set out in the justice's instruction in section 1491 of the Code of 1930. The original taking and the original damaging was by the board of supervisors of Covington county, Mississippi, and the board of supervisors should have been defendants in this suit. There cannot possibly be any liability on the State Highway Commission for an occurrence over which it had no control at a time when it had no power to sue or to be sued.
E.L. Dent, W.W. Dent and R.L. Calhoun, all of Collins, for appellees.
It appears by paragraph (c), section 16, chapter 47, Laws of 1930, known as the "Stansel Bill," which is paragraph (c), section 5006, Mississippi Code of 1930, that appellant was made "a body corporate, and as such may sue and be sued, plead and be impleaded, in any court of justice having jurisdiction of the subject matter of any such suit." This law came in force on April 14, 1930, it becoming a law without the approval of the then governor.
It being admitted that the taking of this property in 1929 was wrongful, it continued to be wrongful in April, 1930, when the appellant could be sued as any other corporation or person, and on this act becoming a law they were engaged in constructing a public highway on this private property and thereby appropriating the same for public use, without the due compensation having been paid therefor, or due compensation for damaging the same.
Section 170, Constitution of Mississippi; Chapter 143, Laws of 1924.
The case of State Highway Commission v. Knight, 154 So. 263, is authority for bringing a suit of this character against the appellant.
In the case of Board of Levee Commissioners for the Yazoo-Mississippi Delta v. Kate Dancy, 3 So. 569, 65 Miss. 335, it is said: "Obtaining by grant from the owner, or by adverse possession, long enough to bar his claim to the property, or condemning and paying for it, are the only modes of obtaining private property for public use in this state; and no act which devolves on the owner the duty of initiating proceedings for compensation for his property as the condition of his obtaining it is allowable."
Campbell v. Covington County, 137 So. 111.
It appears to us that if the board of supervisors did nothing except furnish the money for the Highway Department, which completed the road in 1931, the county could not be liable, for there would be no act of the board of supervisors, evidenced by the minutes, appropriating this property for public use.
State v. Morgan, 31 So. 338; Board of Supervisors of De Soto County v. Weatherford, 75 So. 114.
When appellant took the twenty-nine thousand dollars in 1929 and completed this road in 1931, and appropriated it to public use it knew, the law requiring it to know, that this property had never been condemned, purchased, or, by prescription, obtained for public use as a highway, and they knew all the orders of the board of supervisors with reference to this property, if it could be considered that they have any reference to it, were void.
Ferguson v. Board of Supervisors of Wilkinson County, 115 So. 779.
Insofar as this record shows, appellees never knew their land was being appropriated for public use until it was completed by appellant in 1931, thereby becoming a trespass ab initio. This wrong was continued by appellant from 1930, after passage of the "Stansel Bill," until the present time, and is now being wrongfully appropriated by appellant for public use without due compensation being paid therefor.
Copiah County v. Lusk, 77 Miss. 136; 20 C.J., page 846, par. 284, and page 1118, par. 546; Cowan v. Southern Ry., 23 So. 754, 118 Ala. 354; Faulk v. Missouri River N.W. Ry., 28 S.D. 1, 132 N.W. 233, 30 A. E. Ann. Cas. 1913E 1130; Harbach v. Des Moines Kansas City R.R. Co., 11 L.R.A. 113, 44 N.W. 348, 80 Iowa 593; Little Miami R. Co. v. Hambleton, 40 Ohio St. 496.
Appellant having the authority to condemn private property for public use, when it took this property, without legal proceedings, it thus became a trespasser ab initio, or a continuing trespass, for which it is liable.
26 R.C.L. 943.
This suit was filed in the circuit court of Covington county by the appellees, A.A. Flint and his wife, seeking to recover from the State Highway Commission compensation for land previously taken for the right of way of a state highway running through appellees' land. There was a judgment in favor of the appellees for four hundred twenty-five dollars, from which the State Highway Commission appealed.
The case was heard before the court without a jury, upon an agreed statement of facts, and upon the further agreement that if damages were recoverable, the court might view the land and take such testimony as he desired in reference to value, and fix the amount of damages. It was agreed that appellees were the owners of the land in question when it was appropriated for highway purposes; that the highway which has been constructed across said land was designated as a state highway by section 61, chapter 45, Laws of 1928, Extraordinary Session, and that a strip of land eighty feet in width, and one thousand five hundred feet in length, over and across said land, was in the year 1929, and has since been, appropriated for public use. It was further agreed that such strip of land was taken without the consent of appellees, and that it has never been condemned or paid for by either the board of supervisors of Covington county or the State Highway Commission.
It was further agreed that, during the years 1929, 1930, and 1931, the said public highway was constructed over, through, and across said strip of land, and that it was constructed, paid for, supervised, and has since been maintained, by the State Highway Commission; that in 1929 the board of supervisors of Covington county contributed to the State Highway Commission the sum of twenty-nine thousand dollars as part payment for the construction of this particular highway. It was further agreed that since the completion of said highway some time in the year 1931, the roadbed has not been altered or changed, and that no damages have resulted to the appellees from or on account of the maintenance of said road since that date.
The sole contention of the appellant is that there can be no recovery against it, for the reason that the original taking of the property and the appropriation thereof to the public use occurred in the year 1929, at a time when appellant was not a body corporate, could not sue or be sued, and did not have the power to acquire rights of way by purchase or condemnation.
A State Highway Commission was created by chapter 168, Laws of 1916, and by chapter 278, Laws of 1924, the said act of 1916 was repealed, and a state highway department was created consisting of eight commissioners, with power to act in a supervisory and advisory capacity to boards of supervisors in constructing state highways, and with power to maintain the same. But it was not until the passage of chapter 47, Laws of 1930, that the State Highway Commission was created a body corporate, with power to sue and be sued, and with power to acquire by purchase, gift, or otherwise rights of way and lands containing building material, or lands necessary for other purposes incident to the construction of a system of state highways, and also with the power of eminent domain to secure lands for any of these purposes.
When the appellant, in connection with the board of supervisors, originally took possession of the appellees' land in 1929, without due compensation therefor having been first paid, the appellant had no authority within itself to acquire the land in any way, and there was no authority to sue it for its acts in so doing, but the taking was none the less unwarranted and unlawful, and this unlawful possession, and the construction of a highway on and over the right of way so unlawfully acquired, continued until long after legislative authority to sue the appellant commission had been granted, and full authority to lawfully acquire the right of way by condemnation had been conferred on the commission. When the appellant took possession of this strip of land for public use without due compensation having been first made therefor, as required by section 17 of the Constitution of 1890, it committed a trespass which has continued until the present time; and when legislative authority to sue the commission was granted in 1930, a cause of action immediately arose in favor of appellees to recover against the commission due compensation for taking and damaging their property for the use of the public. 20 C.J. 846 and 1188; Cowan et al. v. Southern Ry. Co., 118 Ala. 554, 23 So. 754; Faulk v. Mo. River N.W. Ry. Co., 28 S.D. 1, 132 N.W. 233, Ann. Cas. 1913E, 1130; Harbach v. Des Moines K.C.R.R. Co., 80 Iowa, 593, 44 N.W. 348, 11 L.R.A. 113.
The judgment of the court below will be affirmed.
Affirmed.