Opinion
No. 42439.
November 12, 1962.
1. Eminent domain — access — corner of intersection of existing highway and highway of new construction — damages denied landowner.
Although plaintiff's predecessor in title had access directly into drive, an integral part of intersection, and had access to service or frontage road, plaintiff was not entitled to damages because Highway Commission denied plaintiff permission to construct entrances across flare or sight distance which lay in corner of intersection of existing highway and new highway.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, J.
Wells, Thomas Wells, Roland D. Marble, Jackson, for appellant.
I. Access rights of appellant to U.S. Highway 51 North are "property" which appellee had arbitrarily refused to acquire either by purchase or by eminent domain, but which appellee has taken for public use, without compensation, in such a manner as to constitute confiscation. Beaver Dam Drainage District v. McClain, 241 Miss. 865, 133 So.2d 615; Berry v. Southern Pine Electric Power Assn., 222 Miss. 260, 76 So.2d 212; Carney v. Mississippi State Highway Comm., 233 Miss. 598, 103 So.2d 413; City of Jackson v. Welch, 136 Miss. 223, 101 So. 361; Harreld v. Mississippi State Highway Comm., 234 Miss. 1, 103 So.2d 852; Jones Beach Blvd. Estate v. Moses, 268 N.Y. 362, 197 N.E. 313, 100 A.L.R. 487; Mississippi State Highway Comm. v. Finch, 237 Miss. 314, 114 So.2d 673; Mississippi State Highway Comm. v. Herring, 241 Miss. 729, 133 So.2d 279; Mississippi State Highway Comm. v. Spencer, 233 Miss. 155, 101 So.2d 499; Mississippi State Highway Comm. v. Windham, 241 Miss. 1, 128 So.2d 577; Morris v. Mississippi State Highway Comm., 240 Miss. 783, 129 So.2d 367; Muse v. Mississippi State Highway Comm., 233 Miss. 694, 103 So.2d 839; Nichols v. Commonwealth (Mass.), 121 N.E.2d 56; Sec. 8023, Code 1942; Chap. 332, Laws 1948; Chap. 332 Sec. 14 (h), Laws 1948; Chap. 6, Laws 1949; Chaps. 313, 314, Laws 1956; 25 Am. Jur., Highways, Sec. 154 p. 448; Anno. 43 A.L.R. 2d 1074; XXX Mississippi Law Journal 197.
II. The police powers of the State of Mississippi do not authorize the taking of access rights of the appellant. Creasy v. Stevens, 104 F. Supp. 404; Martin v. Creasy, 360 U.S. 219, 3 L.Ed.2d 1186, 79 S.Ct. 1034; Newman v. Newman, 73 R.I. 385, 57 A.2d 173; San Antonio v. Pigeonhole Parking, 311 S.W.2d 218, 73 A.L.R. 2d 640; Smith v. State Highway Comm. of Kansas, 185 Kan. 445, 346 P.2d 259; State, by and through State Highway Comm. v. Burk, 265 P.2d 783; State v. Lawrence, 108 Miss. 291, 66 So. 745; Wolfe v. Providence, 74 A.2d 843; 25 Am. Jur., Highways, Secs. 253, 254 p. 544; Anno. 72 A.L.R. 2d 659.
Martin R. McLendon, Asst. Atty. Gen., Satterfield, Shell, Williams Buford, K. Hayes Callicutt, Jackson, for appellee.
I. The Commission did have the authority and did purchase the right to prevent access across the said sight flare from the predecessor in title to American Oil. Logan v. Smith, 229 Miss. 513, 91 So.2d 707; Montgomery v. Ives, 13 Sm. M. (21 Miss.) 161; Muse v. Mississippi State Highway Comm., 233 Miss. 694, 103 So.2d 839; Staton v. Bryant, 55 Miss. 261.
II. The act of the Commission prohibiting American Oil from constructing entrances to its property across the sight flare was a valid exercise of the police powers of the State of Mississippi, and any damages arising therefrom are not compensable. Carazalla v. State, 269 Wis. 593, 71 N.W.2d 276; Harreld v. Mississippi State Highway Comm., 234 Miss. 1, 103 So.2d 852; King v. Stark County, 66 N.D. 467, 266 N.W. 654; Muse v. Mississippi State Highway Comm., supra; Nick v. State Highway Comm., 13 Wis.2d 511, 109 N.W.2d 71, 111 N.W.2d 95; XXX Mississippi Law Journal 87, 198.
The appellant, American Oil Company, filed its suit in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against the appellee, Mississippi State Highway Commission, for damages in the amount of $32,275 which the appellant alleges arose out of the denial by the Commission of the desire of the appellant to construct entrances across the "flare" or "sight distance" hereinafter referred to as sight flare which lies in the northeast corner of the intersection of Northside Drive and U.S. Highway 51 North within the corporate limits of the City of Jackson, Mississippi.
There were several preliminary motions and orders, not pertinent to the issues now before the Court on appeal. The American Oil Company filed a motion to strike the answer of the Mississippi State Highway Commission and then the Commission filed a motion to strike the declaration of the appellant, and this raised certain questions of law and facts. The Commission introduced certain testimony before the trial judge upon its motion to strike and this testimony is undisputed. After such proof the circuit court entered a written ruling and order dismissing the suit of the appellant, American Oil Company, with prejudice. After a motion of the American Oil Company for a new trial was overruled by the court, this appeal was prosecuted.
The appellee, Mississippi State Highway Commission, contends that the right to prohibit the appellant from constructing entrances to its service station across the sight flare was a proper exercise of the police powers of the state.
(Hn 1) We have concluded that the case of Muse v. Mississippi State Highway Commission, 233 Miss. 694, 103 So.2d 839, is controlling in the instant case and settles all of the principles necessary to be decided on this appeal.
While this block of land was in the possession of W.P. Bridges, the predecessor in title of the appellee, he had access directly into Northside Drive, an integral part of the intersection and he had access to the service or frontage road to the north.
In the case of Mississippi State Highway Commission v. Finch, 237 Miss. 314, 114 So.2d 673, the landowner had access to a conventional, existing highway which was converted into a "controlled-access facility", whereas in the instant case, the highway was one of entirely new construction.
From the foregoing, it follows that we are of the opinion that the judgment of the circuit court herein appealed from should be affirmed.
Affirmed.
Ethridge, McElroy, Rodgers and Jones, JJ., concur.