Summary
In Puyper v. Pure Oil Company et al., (1952), 215 Miss. 121, 60 So.2d 569, 573, this Court said: "The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets.
Summary of this case from State Highway Comm. v. FlemingOpinion
No. 38474.
October 13, 1952.
1. Municipal corporations — streets — authority to vacate.
Where full power is granted to the authorities of a municipality to vacate streets, they may act on their own motion and a petition of property owners as a basis of the proceeding is not necessary in the absence of a statute requiring it, nor is it necessary to give notice to nonabutting property owners. Sec. 3419, Code 1942.
2. Municipal corporations — streets — closing — abutting property owners — special damages.
Where the abutting property owners on that part of a street ordered closed by a municipal ordinance had consented thereto, and the nonabutting owners had sufficient and adequate access to and from their properties after the closing of the street, and had sustained no special damages differing in kind, and not merely in degree, from those sustained by the public generally, there was no injury to such nonabutting property owners or violation of their rights as would entitle them to compensation. Sec. 17, Constitution 1890.
3. Municipalities — streets — closing — nonabutting property owners.
As a general rule one whose property does not abut on the closed section of a street has no right to compensation if he still has reasonable access to the general system of streets, and to warrant an exception to the rule the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally.
4. Constitutional law — taking property for public use — judicial question as to public use.
When in suit to enjoin the closing of a portion of a street the chancellor found with the support of ample evidence that the closing was for the public good, the authorizing ordinance would not be held invalid for the reason that it did not provide for a judicial determination of the question thus presented and decided. Sec. 17, Const. 1890.
5. Municipal corporations — streets — closing — ordinances, recitals.
The adoption of an ordinance closing a street was of itself a determination by the governing authorities that the public interest and welfare required that the street be closed, wherefore the ordinance was not rendered invalid by its failure so to recite in express terms.
6. Public lands — donation — closing public street — reversion to abutting owner.
The fact that when a public street is closed and abandoned by a municipality the land in the former right of way will revert to the abutting owner or owners, in this case a private corporation, does not deprive the municipality of the authority to close the street, and the contention in such case that there would be a donation of public land to a private corporation in contravention of the Constitution is not well founded. Sec. 95, Const. 1890.
Headnotes as approved by Kyle, J.
APPEAL from the chancery court of Pearl River County; J.K. TRAVIS, Special Chancellor.
J.E. Stockstill, for appellants.
I. The grant of power by the Legislature under Sec. 3419, Code 1942 (being the nineteenth power) subject, closing streets, to municipality is one of their charter powers, is a legal legislative grant of power, but the provisions of Sec. 3419, Code 1942 are inoperative and cannot be used by the municipality because the Legislature failed to provide any municipality having the Code Chapter for its charter legislative provisions for a definite method of public hearing to abutting owners on streets, and failed to prescribe the notice required by the Constitution, to be given to abutting owners affording them the right to be heard on a proposal to close a public street, alley, or any part thereof, and the Legislature failed to provide the place and manner of hearing with notice to abutting owners under Sec. 17 of the State Constitution, under the phrase "in a manner to be prescribed by law." Sec. 3419, Code 1942; Sec. 17, Constitution 1890; City of Water Valley v. Poteete, 203 Miss. 382, 33 So.2d 794; Bouslog v. City of Gulfport, 112 Miss. 184, 72 So. 896; Sick v. City of Bay St. Louis, 113 Miss. 175, 74 So. 272.
II. A municipality in this state operating under Code chapter on municipalities as now shown in Title 16, Divisions 1 and 2 of the Code of 1942, Vol. 3, has no power except as granted by the Legislature in said chapter or any amendments thereto. A municipality is an agent of the State and has no power beyond that granted by the Legislature. City of Water Valley v. Poteete, 203 Miss. 382, 33 So.2d 794.
A town or city is an agency or instrumentality of the State. City of Water Valley v. Poteete, 203 Miss. 382, 33 So.2d 794; City of Birmingham, et al. v. Hendrix, et al., 38 So.2d 626; Bouslog v. City of Gulfport, 112 Miss. 184, 72 So. 896; Coe v. Armour Fertilizer Co., 237 U.S. 413, 59 L.Ed. 1027, 35 S.Ct. 625.
III. "The owners of property that build on each side of, and with reference to a public street, acquire an easement in its free user by them and the public in the resultant value of such user. This is property and cannot be taken from them or damaged by closing the street except upon compensation first paid. The closing of the street is a taking of the easement for the public use in the purview of our Constitution." Laurel Improvement Co., et al. v. Rowell, 84 Miss. 435, 36 So. 543; Polk v. City of Hattiesburg, 109 Miss. 876, 69 So. 675; Town of Clinton v. Turner, 95 Miss. 594, 52 So. 261.
IV. A judicial determination by the governing authorities of a municipality operating on the Code chapter for its charter cannot close or have closed a street, unless it is for public good, which is a condition precedent to the closing of a street.
Under the power granted to a municipality under Sec. 3419, Code 1942 the governing authorities have power to declare the necessity for closing a street, and that it is for public good, but the governing authorities can go no farther, and cannot execute any such ordinance under said section of the Code, unless they see fit to file a petition in a court of proper jurisdiction, based upon said order, in which court the abutting owners along said street, may be summoned into court, to confirm or contest the order of the board, and have their evidence heard upon the questions:
First: The necessity to close the street;
Second: That it is for public good; and
Third: The proof of and adjudication of the damages to the property of the abutting owners, if any, in which court, the abutting owners have their day in court, and can be served with notice generally, under the Constitution "in a manner prescribed by law" — Sec. 17. Sec. 3419, Code 1942; Sec. 17, Constitution 1890; City of Water Valley v. Poteete, 203 Miss. 382, 33 So.2d 794; City of Birmingham, et al. v. Hendrix, 58 So.2d 626; Bouslog v. City of Gulfport, 112 Miss. 184, 72 So. 896.
Morse Morse, also for appellants.
I. The ordinance closing old Highway No. 11 or Harvey Avenue was passed without notice thus depriving appellants of their property without due process. Sec. 3913, Code 1942; Alabama V. Ry. Co., et al. v. Turner, 95 Miss. 594, 52 So. 261, 262; Laurel Improvement Co. v. Rowell, 84 Miss. 435, 36 So. 543; Morris v. Covington County, 118 Miss. 875, 80 So. 337; Danielson v. Sykes, (Colo.), 109 P. 87; Footnote 28 L.R.A. (N.S.), pp. 1024-1025; Secs. 17, 24, Constitution 1890; Donivan v. Vicksburg, 29 Miss. 247, 64 Am. Dec. 143; Jack v. Thompson, 41 Miss. 49; Wilkinson v. Gaines, 96 Miss. 688, 51 So. 718; Jones v. Belzoni Drainage District, 102 Miss. 796, 59 So. 921; Bouslog v. City of Gulfport, 112 Miss. 184, 72 So. 896; Sick v. City of Bay St. Louis, 113 Miss. 175, 74 So. 272; Sterritt v. Young, 14 Wyo. 146, 82 P. 946; State, ex rel. Merriam v. Ball, 116 Tex. 527[ 116 Tex. 527], 296 S.W. 1085; Coe v. Armour, 237 U.S. 413.
II. The ordinance closing the street on which appellants reside and own property is void because is violates the mandate of the Constitution of the State requiring that the taking of private property be judicially determined to be for public use. Polk v. City of Hattiesburg, 109 Miss. 872, 69 So. 675; Poythress v. Mobile O.R.R. Co., 92 Miss. 638, 46 So. 139; Laurel v. Rowell, 84 Miss. 435, 36 So. 543; Morgan v. United States, 304 U.S. 1; Wichita Railroad v. Public Utilities Co. of Kansas, 260 U.S. 48; Mohler v. Eby, 264 U.S. 32; United States v. B. O.R.R. Co., 293 U.S. 454; Panama Refining Co. v. Ryan, 293 U.S. 388, 54 A.L.R. 7.
III. The ordinance closing old Highway 11, the extension of Harvey Avenue, is void for the reason that it is a donation of public and private property for the use and benefit of a private corporation repugnant to the Constitution and public property. Secs. 87, 90, 95, Constitution 1890; Laurel v. Rowell, 84 Miss. 440, 36 So. 543; 25 Am. Jur., Sec. 119; Duckworth v. Town of Robertsdale, (Ala.), 128 So. 182; 22 L.R.A. (N.S.), p. 530.
Hannah, Simrall Aultman, for appellees.
The first contention is that the appellants were deprived of their property without due process of law. This contention proceeds on the theory that the appellants were abutting property owners on the street closed by the ordinance and that appellants had a special easement in the street for its use and that appellants suffered special damage by the closing. On the first proposition the appellants cite the case of Town of Clinton v. Turner, 95 Miss. 594, 52 So. 261. They also cite the cases of Laurel Improvement Co. v. Rowell, 84 Miss. 435, 36 So. 543, and Morris v. Covington County, 118 Miss. 875, 80 So. 337. These cases are cited for the purpose of attempting to demonstrate that the appellants in this case are, in fact, abutting property owners on the street closed by the ordinance above mentioned, but the undisputed fact is that none of the appellants own any property that abuts on the street closed by the ordinance and that the property of all of the appellants lies North of 5th Street. A careful reading of the three cases cited by appellants shows that, in each case, the facts of the situation were different and the complaining property owner owned property which was actually adjacent to the street closed by the ordinance. In the Turner case, the Court said: "The point at which this street is ordered to be closed on the South side is adjacent to the property of Mattie Turner." In the Rowell case the statement of facts says: "The Laurel Improvement Company owns all the land abutting on the street on the North side and H.H. and R.E. Rowell own all the land abutting it on the South side." In the Morris case, the Court said: "The declaration alleges that the Board of Supervisors of Covington County adopted an order vacating and abandoning a certain public highway leading from Seminary across Okatoma Creek to and through the farm of appellant." The cases which are exactly in point with the facts in the case at bar, and which settle the question, are Poythress v. Mobile Ohio R.R. Co., 92 Miss. 638, 46 So. 139; City of Jackson v. Welch, 136 Miss. 223, 101 So. 361, and Town of Wesson v. Swinney, 144 Miss. 867, 110 So. 669. We particularly call the Court's attention to the map shown in the opinion in the Poythress case, which appears at page 642 of the official report of the case, and at page 141 of the Southern Reporter report of the case. We also desire to particularly call the Court's attention to the following language appearing in the opinion in the Swinney case:
"A landowner complaining at the closing of a street or alley must suffer especial damage over and above that of the landowners generally of the municipality. The statute undertakes to define those landowners who may suffer such special damages. It is only those who are `abutting landowners.' We are of the opinion that the statute in its language and purpose carries out the inhibition of Section 17 of the Constitution, which provides that private property shall not be taken or damaged for public use, except upon due compensation being made to the owner. To construe the Constitution and statute as extended to others than abutting landowners would go too largely into the field of speculation. It would be too illusory and unsubstantial an undertaking to show that any particular landowner, or class of landowners, other than an abutting owner, was damaged above the other landowners of the municipality because of the closing of a street."
The second proposition argued by appellants is a corollary to their first proposition, it being that the ordinance is void for the reason that it does not recite in the body of the ordinance that a judicial hearing had been given the appellants and a judicial determination reached that the closing of the street was in the public interest. An all-sufficient answer to this contention is that the facts being that the appellants are not abutting owners and have suffered no special damage, they cannot be heard to complain. The chancellor below considered this question and held that the principle of law contended for by appellants did not apply to this case, and he cited ample authority for his decision. Appellants point to no authority which would authorize a private citizen to bring a suit collaterally attacking a municipal ordinance on the ground that it is void where he has suffered no special damage. American Oil Co. v. Interstate Wholesale Grocers, 138 Miss. 801, 104 So. 70, and the many decisions of this Court in cases brought by taxpayers do support this conclusion. There is no pretense in this case that any application has been made to the Mayor and Aldermen to bring the suit and that they have failed to do so, nor is there any pretense that this suit is a class suit on behalf of all citizens and taxpayers.
The third proposition advanced by appellants in their brief is that the passage of the ordinance was the donation of public property to a private corporation, in violation of Sec. 95 of the Constitution. As far as we know, there has never been any dissent in this state from the proposition that when a public street or alley is lawfully closed and vacated, the abutting property owners on each side take the land, one-half going to each owner. That is all that has happened in this case. The Mayor and Aldermen of Picayune have lawfully closed the street by the passage of a valid ordinance and the abutting owner has taken possession of and is using that which belongs to it. The question of whether or not this action of the Mayor and Aldermen was for the public good is a question of fact that was litigated in the court below, and the chancellor has expressly found against the appellants on this question of fact and has held that the closing of the street was "in promotion of the general public good."
E.J. Puyper and others, complainants, filed their bill of complaint in the chancery court of Pearl River County against the Pure Oil Company, the City of Picayune and the New Orleans and Northeastern Railroad Company, as defendants, seeking to enjoin the Pure Oil Company and the City of Picayune from closing or obstructing a short section of a street in the City of Picayune, which constituted a part of Old U.S. Highway No. 11, and to recover damages alleged to have been sustained by the complainants as a result of the wrongful closing of the street by the governing authorities of the municipality and the wrongful obstruction of same by the Pure Oil Company.
The complainants alleged in their bill of complaint that the mayor and board of aldermen of the City of Picayune had, on October 10, 1949, without notice to the complainants, adopted an ordinance closing that part of the said Old U.S. Highway No. 11 lying between Fourth Street and Fifth Street, and that the Pure Oil Company, which owned the land abutting on the east side of the closed section of said highway, had taken possession of the old right-of-way of said highway lying between Fourth Street and Fifth Street and had appropriated the same to its own use; that the complainants were property owners owning property along the east side of said old highway and had received no notice of the proposed action of the mayor and board of aldermen prior to the adoption of said ordinance; and that the complainants had not been made parties to any proceeding for the closing of said street. The complainants further alleged that their properties abutting on the old highway had been greatly damaged and the market value thereof greatly impaired as a result of the closing of said street, and that no compensation had been paid to them for the damage thus inflicted upon them. The complainants asked for a mandatory injunction requiring the city and the Pure Oil Company to restore the street to the condition it was in prior to the adoption of the closing ordinance and for a decree awarding damages to each of them for the injuries sustained by them as a result of the wrongful closing of said street.
The New Orleans and Northeastern Railroad Company filed a separate answer asserting its ownership of a 200-foot right-of-way along the west side of the old highway and denied that the complainants were entitled to any relief against it. After the filing of the answer an agreed order was entered as to the railroad company in which the company's ownership of the 200-foot right-of-way was recognized, and the railroad company took no further part in the trial.
The Pure Oil Company and the City of Picayune filed separate answers and in their answers admitted that the section of the old highway lying between Fourth Street and Fifth Street had been closed by an ordinance adopted by the mayor and board of aldermen on October 10, 1949. The defendants alleged that the street had been closed by the mayor and board of aldermen as a safety measure to reduce traffic hazards near the intersection of Fourth Street and the new U.S. Highway No. 11 and at the railroad crossing immediately west of said intersection. The defendants in their answers denied that the complainants were abutting property owners owning property abutting on the section of the old highway which had been closed, or that the complainants had been damaged in any way by the closing of the highway. The defendants averred in their answers that there were several cross streets leading from the old highway, on which the complainants' properties were located, into the new highway which provided easy access from the old highway to the business district of the City of Picayune; and the defendants denied that the complainants were entitled to any compensation for damages to their properties as a result of the closing of the highway.
The facts developed upon the hearing before the chancellor showed that Harvey Avenue was the main business street of the City of Picayune and extended northwardly to the point of intersection with Fourth Street. The old U.S. Highway No. 11, which was established as a state highway many years before the new highway was constructed, ran northwardly along Harvey Avenue to a point about 100 feet south of the point of intersection of Harvey Avenue with Fourth Street. The old highway then turned northwestwardly for a short distance and crossed Fourth Street at a point immediately east of the railroad crossing, and continued thence northwardly along the east side of the railroad right-of-way toward the northern boundary of the city. That part of the new U.S. Highway No. 11 which passed through the City of Picayune was completed in 1949. The new highway followed the route of the old highway along Harvey Avenue to the point where the old highway turned northwestwardly toward the railroad crossing. The new highway then continued along Harvey Avenue to the point of intersection with Fourth Street and ran thence northwardly along a new route laid out by the State Highway Department to the north boundary line of the city. After the completion of the new highway the old right-of-way of U.S. Highway No. 11, extending northwardly along the east side of the railroad right-of-way, ceased to be used as a part of U.S. Highway No. 11 and reverted to its status as a mere street of the City of Picayune. After the new highway had been relocated north of Fourth Street there was left between the old highway and the new highway immediately north of Fourth Street a small U-shaped parcel of land which was owned by the Pure Oil Company. The distance along the north side of Fourth Street between the old highway and the new highway was 47.5 feet; the distance between the two highways on Fifth Street, one block farther north, was 76 feet. The distance along the old highway from the north boundary line of Fourth Street to the south boundary line of Fifth Street was 353 feet. It was this link of the old highway that was vacated by the ordinance adopted on October 10, 1949.
The testimony of the complainants showed that all of their properties abutted on that part of the old highway lying north of Fifth Street. Only one of the complainants owned property in the first block north of Fifth Street. The other complainants owned property lying two, three or four blocks north of Fifth Street. The complainants testified that the market value of their properties had been diminished as a result of the closing of the street above the Fourth Street intersection. Each of them testified as to the inconvenience to which they were subjected by being forced to turn into the new highway at the Fifth Street intersection and not being able to drive southwardly to the Fourth Street intersection, as they had been accustomed to do prior to the closing of the old highway south of Fifth Street.
The testimony offered on behalf of the defendants showed that the old highway running northwardly along the east side of the railroad right-of-way was a black top highway; that there were three streets paved with asphalt surfacing running eastwardly from the old highway into the new highway north of Fourth Street; that the complainants had ready access to their properties over any of these streets; and that complainants' properties had not been damaged on account of the closing of the lower end of the old highway below Fifth Street. Members of the board of aldermen testified that the closing of the lower end of the old highway was necessary to eliminate the danger of traffic accidents at the intersection of Fourth Street and the new highway and at the railroad crossing lying immediately west of the intersection. The record shows that immediately after the closing of the old highway north of Fourth Street the Pure Oil Company conveyed to the city a small strip of land off of the north side of Fourth Street for the purpose of enabling the city to widen the street between the railroad crossing and the new highway, and that the street had been widened and an "S" curve eliminated near the new highway intersection.
The chancellor after hearing the testimony stated in writing his findings of fact and his conclusions of law. The chancellor found that the ordinance closing the street had been legally adopted; that the complainants were not abutting property owners entitling them to compensation for the closing of the street; that the complainants had no special interest in the use of the vacated street for access purposes to their property, because their property did not abut on that portion of the street which was closed, and that they had sufficient and adequate access to and from their property; and the chancellor found that the complainants had sustained no special damage by the closing of the street not shared in by the general public. The chancellor also found that the vacation of that part of the street complained of was in promotion of the general public good, and that the complainants were not entitled to the relief prayed for; and the chancellor entered a final decree dismissing the bill of complaint. From that decree the complainants prosecute this appeal.
The appellants' attorneys in their brief contend that the ordinance closing the section of the old highway between Fourth Street and Fifth Street is void for the reasons that, (1) the ordinance was passed without notice to the appellants, thus depriving them of their property without due process of law, and (2) the ordinance violates Section 17 of the Constitution of the State of Mississippi, which requires that the taking of private property be judicially determined to be for the public use, and (3) the ordinance in effect represents a donation of public property to a private corporation in violation of Section 95 of the Constitution of the State of Mississippi.
None of these contentions, in our opinion, can be successfully maintained in view of the findings of the chancellor and the facts disclosed by the record.
Section 3419, Code of 1942, vests in a municipal corporation full power and authority to close or vacate any street or alley, or any portion thereof, subject only to the requirement that due compensation be first made to the abutting land owners for all damages sustained thereby.
(Hn 1) Where full power is granted to the authorities of a municipality to vacate streets, they may act upon their own motion, and a petition of property owners as a basis for the proceeding is not necessary in the absence of a statute requiring it. 44 C.J., p. 902, Municipal Corporations, par. 3641; Curtiss, et al. v. Charlevoix Golf Ass'n., 178 Mich. 50, 144 N.W. 818. In those jurisdictions where the statutes require that notice of the intention of the governing authorities of the municipality to vacate a street be given to interested parties, the courts have held that only abutting property owners or persons having a legal right to compensation are entitled to notice. 44 C.J., p. 902. And "the general rule is that only those who sustain some special or peculiar injury, differing in kind and not merely in degree from that sustained by the general public are entitled to complain of a vacation." 25 Am. Jur., p. 420, Highways, par. 123.
The ordinance in this case recited (Hn 2) that the owner of the land adjacent to that part of the street which was ordered closed had agreed that the same might be closed and had waived any claim for damages that might be sustained as a result of the closing of the street; and the ordinance further recited that no other person would be damaged by the closing of the street. The chancellor found that the complainants were not abutting property owners owning property abutting on the section of the street which was closed; and the chancellor found that the complainants had sufficient and adequate access to and from their properties after the closing of the street, and that the complainants had sustained no special damages differing in kind, and not merely in degree, from those sustained by the public generally.
Under the facts thus developed it is clear that the complainants failed to show any violation of their property rights by the closing of the street, or any injury for which they were entitled to be compensated under Section 17 of the State Constitution.
(Hn 3) The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally. 18 Am. Jur., p. 856, Eminent Domain, par. 224.
In the case of Tomaszewski, et al. v. Palmer Bee Company, et al., 223 Mich. 565, 194 N.W. 571, the Court held that mere inconvenience to owners of property abutting on a street but not on a closed section, in having to go around instead of through the adjacent block, when proceeding in that direction, does not constitute a taking of property. In that case the Court said: "It is a well-settled rule that a lot owner's right to object to the vacation of a part of a street depends upon whether his lot abuts upon or comes in actual contact with the vacated portion, or access to his lot is entirely or materially cut off by reason of the vacation. That he may be inconvenienced or that he may have to go a more roundabout way to reach certain points does not bring to him any injury different in kind from the general public, but only in degree. If means of ingress and egress are not cut off or lessened in the block of the abutting owner, but only rendered less convenient because of being less direct to other points in the city, and made so by the vacation of the street in another block, such consequence is damnum absque injuria. Buhl v. Union Depot Co., 98 Mich. 596, 57 N.W. 829, 23 L.R.A. 392. See, also, Baudistel v. Michigan Central Railroad Company, 113 Mich. 687, 71 N.W. 1114; Realty Investment Co. v. Deere Co., 208 Mo. 66, 106 S.W. 496, 14 L.R.A. (N.S.) 822; Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 62 N.E. 341, 87 Am. St. Rep. 600; McQuillin Mun. Corp., Vol. 3, par. 1410; Elliott, Roads Streets (3rd Ed.), par. 1181."
In the case of Phelps, et al. v. Stott Realty Company, et al., 233 Mich. 486, 207 N.W. 2, the Court, citing with approval the principles laid down in the Tomaszewski case, supra, held that the right to object to the vacation of a portion of an alley depends upon whether the objector's property abuts on that part of the alley which is vacated or closed. In the case of East St. Louis v. O'Flynn, 119 Ill. 200, 10 N.E. 395, 59 Am. Rep. 795, the Court held that under a statute providing for the payment of compensation when property is "damaged" by the vacation or closing of streets, one whose property was located in another block from the streets and alleys vacated could not recover damages, since his injury was of the same kind as that sustained by other persons in the municipality, although it might be greater in degree.
In the case of Glasgow v. St. Louis, 107 Mo. 198, 17 S.W. 743, it was held that there was no right to compensation for the vacation of a part of a street, under a constitutional provision that private property shall not be "taken or damaged" for public use without just compensation, where the part of the street vacated was in the block adjacent to the property abutting on another part of the same street which it was claimed had sustained damages. The Court said that there is no doubt that a property owner has an easement in a street upon which his property abuts which is special to him and should be protected; but that in this case the plaintiffs owned no property fronting or abutting on the part of the street which was vacated; that their property was surrounded by streets not touched or affected by the vacating ordinance, although they would be obliged to go a little farther to reach the next street in that direction, which, however, was an inconvenience different in degree only from that suffered by all other persons.
The principles laid down in the authorities mentioned above have been approved and applied by our own Court in the cases of Poythress, et al. v. Mobile Ohio R. Co., et al., 92 Miss. 638, 46 So. 139; Town of Clinton, et al. v. Turner, 95 Miss. 594, 52 So. 261; City of Jackson, et al. v. Welch, et al., 136 Miss. 223, 101 So. 361; and Town of Wesson v. Swinnery, 144 Miss. 867, 110 So. 669.
In the Poythress case supra, the Court held that Poythress was not an abutting landowner upon the street which was closed, entitling him to have compensation first made to him before the closing of the street, within the meaning of Code of 1906, paragraph 3336, as he owned no property abutting the closed portion, citing Cram v. City of Laconia, 71 N.H. 41, 51 A. 635, 57 L.R.A. 282. In the Poythress case, the Court said: "We are unwilling to hold that a municipality cannot close a street, when in its judgment it is for the public good. In such case the individual right of the citizen must yield. The ordinance providing for the closing of this street was passed, as the ordinance declares, because the municipal authorities believed that the safety of the public demanded it. Under these conditions it was in the power of the municipality to order the street closed. If the complainants have suffered any special damage by the closing of this street, not shared in by all the public, they have recourse against the municipality; but, in the meantime, it is within the power of the municipality to close the street, if in the judgment of the municipality it is dangerous to pedestrians and others, and this can be done without interference to Poythress. To deny the municipality this right would be to deny to it the power to exercise one of the most important protective duties that it owes to the public."
In the case of Town of Wesson v. Swinnery, supra, the Court in its opinion said: "It is the convenient ingress and egress to and from his property which the municipality cannot interfere with by the closing of a street on which the landowner's property abuts without making due compensation therefor. The statute (Section 3336, Code of 1906), Section 5833, Hemingway's Code) expressly confines the right to compensation for the closing of streets and alleys in a municipality to `abutting landowners upon such streets or alleys.' A landowner complaining at the closing of a street or alley must suffer especial damage over and above that of the landowners generally of the municipality. The statute undertakes to define those landowners who may suffer such special damages. It is only those who are `abutting landowners.' We are of the opinion that the statute in its language and purpose carries out the inhibition of Section 17 of the Constitution, which provides that private property shall not be taken or damaged for public use, except upon due compensation being made to the owner. To construe the Constitution and statute as extending to others than abutting landowners would go too largely into the field of speculation."
The appellants' attorneys cite in support of their contentions the cases of the City of Laurel, et al. v. Rowell, et al., 84 Miss. 435, 36 So. 543; Town of Clinton, et al. v. Mattie Turner, supra; and Morris v. Covington County, 118 Miss. 875, 80 So. 337. But in each of those cases the Court had under consideration the question as to the rights of property owners owning property which actually abutted upon that part of the street or highway which had been closed, and the facts presented in each of those cases were entirely different from the facts presented in the case that we now have before us.
The chancellor was amply justified in finding that the complainants had sustained no special damages as a result of the closing of that part of the old highway lying south of the Fifth Street intersection not shared by the general public, and that the complainants were not entitled to complain of the vacation of the highway.
(Hn 4) The appellants' attorneys contend, however, in their briefs that the closing ordinance is void because it violates the mandate of the State Constitution requiring that the taking of private property be judicially determined to be for the public use. The section of the Constitution to which reference is made is Section 17, which provides that "whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question and as such determined without regard to legislative assertion that the use is public." In view of the chancellor's finding that the complainants sustained no injury as a result of the adoption of the closing ordinance for which they are entitled to be compensated, the question thus presented might well be treated by us as entirely moot. But, inasmuch as the question whether the closing of the street was for the public good was presented to the chancellor for decision under the pleadings and proof, and the chancellor found that the closing of the street was for the public good, it may be said that in our opinion the chancellor's finding on that issue is amply supported by the testimony, and there is no merit in the contention now made that the ordinance is void for the reason that it failed to provide for a judicial determination of the question thus presented and decided.
(Hn 5) The appellants' attorneys also contend that the ordinance closing the street is void because it contained no formal declaration that the public interest or convenience required that the street be closed. The question of the need for a formal recital in the ordinance itself of the necessity for its enactment is discussed in McQuillin on Municipal Corporations, Second Edition, Rev. Vol. 2, p. 754, and the general rule is there stated as follows: "The general rule is that the ordinance need not recite the reasons for its enactment. Even where charters or statutes provide that in certain ordinances the necessity of their passage be declared, the judicial view is that failure in this respect does not render the ordinance void, since its passage authorizing the act is equivalent to declaring the necessity. The law, when enacted, furnishes its own reason." The failure to include in the ordinance adopted by the mayor and board of aldermen on October 10, 1949, a formal declaration or recital that the public interest or convenience required that the street be closed did not render the ordinance invalid. The adoption of the ordinance was itself a determination by the mayor and board of aldermen that the public interest and welfare required that the street be closed. 44 C.J., p. 903, Municipal Corporations, par. 3646; City of Crowley v. Ellsworth, 114 La. 308, 38 So. 199, 69 L.R.A. 276, 108 Am. St. Rep. 353; People v. City of Los Angeles, 62 Cal. A. 781, 218 P. 63; Manufacturers' Foundry Co. v. City of Holland, 253 Mich. 60, 234 N.W. 129; Kinney, et al. v. Reno Community High School, et al., 130 Kan. 610, 287 P. 258.
(Hn 6) There is no merit in the appellants' contention that the closing of the street constituted in effect a donation of a portion of the right-of-way of the old highway to the Pure Oil Company, a private corporation, in violation of the provisions of Section 95 of the State Constitution. It is true that when the section of the old highway between Fourth Street and Fifth Street was closed the abandoned right-of-way reverted by operation of law to the abutting property owner. But the adoption of the ordinance closing the street did not constitute a donation by the mayor and board of aldermen to the abutting property owner of property owned by the municipality. The mere fact that the Pure Oil Company may have been benefited on account of the reversion to it of a portion of the abandoned right-of-way did not deprive the governing authorities of the municipality of the right to close the portion of the street which was no longer needed, for the purpose of reducing the dangers of traffic accidents on Fourth Street between the new highway and the railroad crossing. The only donation shown in the record is the donation by the Pure Oil Company to the city of a small parcel of land off of the south side of the Pure Oil Company's lot which was conveyed by the Pure Oil Company to the city after the vacation ordinance had been adopted, for the purpose of enabling the city to improve and widen Fourth Street between the new highway and the railroad crossing.
We find no error in the record, and the decree of the lower court is affirmed.
Affirmed.
Roberds, P.J., and Alexander, Holmes and Ethridge, JJ., concur.