Opinion
No. 31726.
May 13, 1935. Suggestion of Error Overruled June 10, 1935.
1. EMINENT DOMAIN.
That state highway department had, prior to instituting condemnation proceeding, already appropriated land for highway purposes held not to deprive it of its right to thereafter condemn land for highway purposes, even though original appropriation was wrongful (Code 1930, section 1480 et seq.).
2. EMINENT DOMAIN.
State highway department held not to have waived its right to appeal from judgment awarding damages in condemnation proceeding by fact that department had entered upon and appropriated the land, where appropriation had occurred prior to institution of condemnation proceeding (Code 1930, section 1480 et seq.).
APPEAL from the circuit court of De Soto county.
HON. JNO. M. KUYKENDALL, Judge.
Condemnation proceeding by the State Highway Department against A.S. Campbell and others. Plaintiff appealed from the judgment rendered, and defendants moved to dismiss the appeal. From an order sustaining the motion to dismiss the appeal, plaintiff appeals. Reversed and remanded.
E.R. Holmes, Jr., Assistant Attorney-General, for appellant.
A subdivision of the state need make no bond to take an appeal.
State Highway Commission v. Gully, 167 Miss. 631, 145 So. 351; State Highway Commission v. Knight, 170 Miss. 60, 154 So. 263; State Highway Commission v. Stewart, 166 Miss. 43, 148 So. 218; Section 76, Code of 1930.
Section 1494 says that the applicant in an eminent domain suit may pay the defendant the amount of the compensation fixed by the jury or tender him the amount so found to be due and it would have the right to enter upon and take possession of the property.
We do not maintain that a private corporation or that a public service corporation can enter upon and take possession of land condemned for public use before the actual payment of compensation to the owner has been made. That question has been definitely determined by this court. It has also been definitely decided by this court that if, pending an appeal, the amount of compensation fixed by the first jury is paid to the circuit clerk, such payment is tantamount to the abandonment of the appeal, but this is not the case before the court here.
This court in the case of Hinds County v. Johnson, 133 Miss. 591, at page 607, decided the specific question involved here in 1923. The court first hinted at the proposition that there might be a difference between the taking by a private corporation and a taking by a subdivision of the sovereign state in the case of Cage v. Trager, 60 Miss. 563, but in Hinds County v. Johnson, supra, it squarely decided the point involved here. The only difference between that case and the case at bar is that in that case a county was the subdivision which condemned for public use, while in this case the highway commission is the condemning subdivision, and in that case the county was acting under sections 4400 to 4402, Code of 1930 (sections 1080 to 1082, Hemingway's Code) while the highway commission was acting in this case under the general eminent domain statute. Neither statute, however, could contravene the meaning and intent of section 17 of the Constitution of 1890, and there is no distinction in that case and the present case — only a slight difference in the facts involved.
Hinds County v. Johnson, 133 Miss. 591, 606.
We contend that a public department of the state, such as the highway commission, may occupy the land prior to actual payment or tender of compensation.
Logan Barbee, of Hernando, for appellees.
There are two ways to condemn and take land for roads in this state. One is under chapter 122, Code of 1930, and the other is under section 6340, Code of 1930. In the case at bar the appellants proceeded under said chapter 122, Code of 1930, and especially section 4998 of said Code.
Under cases cited by appellants the applicant cannot appeal, but when damages are assessed it must pay off, the defendant only being authorized to appeal.
Appellant in the case at bar has not complied with the law.
Counsel for appellant argued at great length that the only thing necessary for the highway department to do is to start eminent domain court to moving and have a trial in said court and if the commission is dissatisfied with the judgment it can appeal the case, and not pay the judgment and at the same time take possession of the land and proceed to construct the highway without the consent of the owner and pending the appeal. We do not understand this to be the law.
Section 4998, Code of 1930.
While it is provided that an appeal by the defendant under this section shall not defeat the right of the applicant to enter on the land, yet it is not said in the statute that if the applicant is dissatisfied with the finding of the jury, it may appeal by the execution of a bond, and proceed to appropriate the land without first paying to the owner or owners the amount assessed by the verdict of the jury in the special court.
Helm et al. v. Turner, 89 Miss. 344, 42 So. 377; Jackson v. Williams, 92 Miss. 301, 46 So. 551.
Section 17 of the Constitution of the state provides that private property shall not be taken or damaged for public use, except upon due compensation being first made to the owner, etc.
The state highway commission is not authorized to assess, levy or enforce the payment of any tax whatever, for any purpose whatever, and while it can sue or be sued there is no provision in the law for execution to be issued against it or any property belonging to it. In the case at bar the state highway commission has the land of the appellees and suppose for the sake of argument it should say: We have no money with which to pay this award. How could Mr. Campbell proceed to enforce the collection of the same?
If the Legislature had provided in chapter 159 of the Code of 1930 or in chapter 122 of the Code of 1930 that land could be taken under either of these chapters for road purposes without first paying the owner of said land the value thereof or tendering him the value and damages, then in that event, the chapters, or that part of the said chapters authorizing the same would be in conflict with section 17 of the Constitution of 1890. But these chapters do not authorize this, and we do not believe these bodies, the state highway commission and the various counties of the state, and the municipalities of the state can do something that the Legislature of the state cannot authorize them to do.
Argued orally by E.R. Holmes, Jr., for appellant, and by R.F.B. Logan, for appellee.
The appellant instituted a proceeding in the court of a justice of the peace under section 1480 et seq., Code 1930, for the condemnation of land owned by the appellees, for use as part of a public highway. The judgment rendered awarded the appellees damages in the sum of two thousand five hundred dollars, from which the appellant appealed to the circuit court. A motion by the appellees to dismiss the appeal was sustained. The ground of this motion is that, after the rendition of the eminent domain judgment, the appellant accepted the benefit thereof by entering upon and appropriating the land, thereby waiving its right to appeal. In support of its claim that this motion should have been overruled, the appellant says, first, that it had the right to enter upon and appropriate the land for highway purposes without first compensating the appellees therefor; and, second, although at the time the motion was sustained it was in possession of the land, and using it for highway purposes, that it entered upon and appropriated the land prior to the commencement of the eminent domain proceeding.
The first of these contentions will be left out of view, and no opinion expressed thereon, for the reason that the judgment of the court below sustaining the motion to dismiss the appeal must be reversed on the appellant's second ground therefor. The evidence discloses that prior to the commencement of the eminent domain proceeding the appellant had entered upon the land, and had done everything necessary towards the construction of the highway thereon, except laying concrete, although, according to the appellees, this was done without their consent. We are not here concerned with the right of the appellant to enter upon and appropriate the land prior to compensating the appellees therefor, and express no opinion thereon. Assuming merely for the purpose of the argument that this appropriation of the land was wrongful, nevertheless the appellant was not deprived thereby of exercising its right to condemn the land for highway purposes; and it did nothing after the eminent domain judgment was rendered that it was not doing prior to the institution of the proceeding therefor.
The motion to dismiss the appeal should have been overruled.
Reversed and remanded.