Opinion
No. 27793.
April 1, 1929. Suggestion of Error Overruled April 15, 1929.
1. MUNICIPAL CORPORATIONS. Constitutional provision requiring compensation for damages to property in making public improvements applies to all persons, natural and artificial; owners of abutting property injured by city changing grade of street must be compensated for damage ( Constitution 1890, section 17).
Under section 17 of the Constitution, any person whose property is damaged in making public improvements, or whose legal rights in property are invaded in doing so, is entitled to damages. This section applies to all persons, natural and artificial, and where a city changes a grade of a street and thereby injures abutting property, the owners must be compensated for the damages thereby sustained.
2. MUNICIPAL CORPORATIONS. Each of different persons having interest in property damaged by change of grade in street is entitled to compensation ( Constitution 1890, section 17).
Different persons may have different interests in property abutting on a street or highway, and, where that is true, each of them is entitled to compensation for his injury.
3. MUNICIPAL CORPORATIONS. City can change grade of street only by proper order entered on its minutes; contract rights with city affecting grade of street cannot be acquired except by order entered on the minutes.
A city can change the grade of a street only by a proper order entered on its minutes, and no person can acquire contract rights with a city affecting the grade of a street except by having an order entered upon the minutes.
4. MUNICIPAL CORPORATIONS. City permitting person to fill street with established grade so as to elevate it at property line may thereafter remove dirt without liability for damages.
Where a city has a street, the grade of which is established, and permits a person to fill in dirt on said street so as to elevate it at the property line for the purpose of ingress and egress, the city may, at any time thereafter, remove the dirt so filled in, for the purpose of improving its street, and may lower the center of the street for said purpose, so long as such lowering does not affect the grade at the property line, and so long as the center of the street is not below the grade at the property line, without paying the abutting property owners damages for such improvement.
APPEAL from circuit court of Pearl River county, HON. J.Q. LANGSTON, Judge.
Morse Bryan, for appellant.
The court should have granted a peremptory instruction for appellant as against both defendants. There is no dispute that there was a change of grade in front of appellant's property. There is no dispute about the fact that in the old Ball grade there was a ditch in front of appellant's property that was about three feet deep. There is no dispute that appellant placed a tile to carry off the water of said drain, and filled it in and utilized that portion of the street as a street and changed the grade of the ditch to conform to the grade of the center of the street; that the traveling public acquiesced therein and accepted it as such, and that the town of Poplarville acquiesced therein and worked the fill as a part of its streets and made no objection thereto. This condition existed for a period of years. It is the contention of ap-appellant that thereby the town accepted that portion of the grade as its own grade and was liable when it changed this grade by digging out the dirt and culvert and leaving appellant's property inaccessible to the traveling public. None of the above facts are in dispute. Our contention is that the town ratified the set of J.B. White's Garage and built on the Ball grade and made the improvements to conform to that grade, and that any subsequent change was made at the risk of the municipality. Under section 17 of the Constitution it is beyond the power of the state or any municipality to take or damage the property of any person, even for public use, without due compensation being first made. See Williams v. Meridian Light Ry. Co., 110 Miss. 174, 69 So. 596; Slaughter v. Meridian Light Ry. Co., 95 Miss. 251, 48 So. 6; and Jackson v. Williams, 92 Miss. 301, 46 So. 551.
The court instructed the jury for the defendants, that if they believed from the evidence that there had previously been established a grade on the road or street in question, under the work done by Ball, and that this grade was not changed, then the defendants were not liable and the jury should so find. Homer Moody testified on direct and cross-examination that the grade of the street had been changed. There is not one particle of evidence by any witness to the effect that the grade as established by Ball was not changed. The mayor of the town was on the stand but made no statement. The town introduced no evidence contradicting the statement of Mr. Moody that there had been a change of grade. We say that this instruction is clearly erroneous. Not being supported by any evidence, it gave the jury a wrong impression and they reached a false conclusion as a result of this instruction. If there is a change of grade the property owners whose property adjoins are theoretically damaged and he is entitled to peremptory instruction to find in his favor.
J.C. Shivers and John C. Street, for appellee, town of Poplarville.
The main contention of counsel for appellant here and in the court below is that the appellant was entitled to a peremptory instruction. We think that this record discloses that the court was correct in refusing to grant plaintiff a peremptory instruction and that the case was properly submitted to the jury. The evidence offered by the plaintiff does not sufficiently show that the original grade of the street was lowered, and that appellant's property was thereby damaged. In the trial of the case it developed that after the establishment of the Ball grade the appellant's property was considerably higher than the street and in order to make his property more accessible to the public, he put a drain pipe in the gutter in front of his property and leveled it over with dirt, and that this condition was permitted by the town to remain. The fact that the town acquiesced by its silence and permitted the dirt to remain is not sufficient to establish a new grade in the street; and because it was necessary for appellees to remove this dirt in order to maintain the original Ball grade, does not constitute a lowering of the grade. The present grade of the street must be measured by the original Ball grade and not be the fact that appellees may have removed some dirt put into the street by appellant.
The title to the property in question is not in appellant, but is in J.B. White, individually, appellant being a corporation. The records were introduced showing that Mr. White had purchased the land some years ago and that the title was conveyed to him, where it has since remained. Counsel for appellant say that we cannot raise this question in this court in view of the fact that the decision below was in favor of appellees. This is true, except if appellees were entitled to a peremptory instruction because of the fact that appellant has no title to the property, then the case would be affirmed. We understand the rule to be in a case of this kind that plaintiff must either show a record title in himself or possession under color of title, and neither was shown in this case. We do not think the fact that appellant was merely in possession of the property is sufficient. Counsel for appellant cite Funderburke v. Board of Alderman, 117 Miss. 173, 78 So. 1, but this case is clearly not in point. In fact we think that this authority sustains our position that there must be more than bare possession. We submit that because of the fact that the plaintiff had no title to the property at the time of the alleged damage, that appellees were entitled to a peremptory instruction and that the cause should be affirmed for this reason.
Henry Mounger and Hall Hall also filed a brief for appellee, Sam B. Boyd.
Argued orally by W.E. Morse, for appellant, and J.C. Shivers and Lee Hall, for appellees.
Appellant filed suit in the circuit court of Pearl River county against the town of Poplarville and Sam B. Boyd, the contractor employed to improve the streets of said town and pave same. Appellant is a corporation, operating a filling station and showroom in the town of Poplarville on one of its streets, said filling station having been erected subsequent to 1920. Prior to that time the grade of the city streets had been made by a surveyor named Ball. The city had improved the street with a gravel coating whereby the center of the street was elevated above the sides of the street.
The appellant garage put in a drain pipe, or tile, on said street next to it, and then cut down on the abutting lot an entrance putting the dirt over the tile drain and into the street in such manner as to raise the side of the street approximately to the level of the center of the street with proper sloping grades so as to make an entrance to the garage easy of access.
There was no order on the minutes of the municipality undertaking to give the garage the right to fill in the street, but no objection was made thereto and such condition remained for a number of years. Finally, the town of Poplarville decided to pave this street, and, in doing so, moved the dirt and gravel placed in the street by the garage to make the street practically level. The city also cut down the street at the center from three inches to ten or eleven inches, varying at different points, and the pavement was laid by the contractor, Boyd, on the original grade at the side of the street as made by Ball, but the center of the street was somewhat lowered, and, as stated above, the dirt and gravel fill, placed by the appellant in the street with the apparent acquiescence of the town, was removed as well as the drain pipe.
The appellant filed suit alleging that it was the owner of the land upon which the building was situated. In the proof it developed that the deed to the house and lot was in the name of J.B. White, individually, and not in the name of the corporation. But the equitable title seems to have been in the appellant, and it was actually using and occupying the garage in the conduct of its business.
The case was submitted to a jury, which found for the appellees.
The principal contention of the appellant is that it should have been granted a peremptory instruction on liability. This is based upon the proposition that the town of Poplarville had consented to appellant making an entrance into the street and to the garage, and that the town, after permitting the same, could not thereafter remove it to the damage of the appellant without compensation in damages, under section 17 of the Constitution.
It is contended by the appellees that the peremptory instruction should not have been granted, and that it was rightfully refused, because the plaintiff had no title to the garage and to the lot upon which it was situated, and, consequently, that it had no standing to bring suit for damages as an abutting property owner; and, second, that the city had the right, at that time, to remove the dirt and gravel, as obstructions, from the street whenever it was deemed necessary or proper, as it had been put there under a temporary arrangement, and that the only way in which a city could change a grade so as to effect the public or property owners was by an order entered upon its minutes made in a proper and legal way.
It appears to us that under section 17 of the Constitution any person whose property is damaged in making improvements, or whose legal rights are invaded in doing so, is entitled to damages. In Vicksburg v. Herman, 72 Miss. 211, 16 So. 434, the court held that this section applied to municipalities and to all other persons, natural or artificial, and that a city, by lowering an established grade thus injuring an abutting property owner, must compensate such owner for all damages sustained thereby. In that case damages were held to include all kinds of damages, direct and collateral, and attention was called to the words "or damaged" in the Constitution.
Different persons may have different interests in abutting property, and, where that is true, each of them is entitled to compensation for his injury. It is the purpose of the constitutional section to give each person having a right of property damages which have accrued to that interest or right of use of property by the improvement or taking, as provided by section 17 of the Constitution. See cases cited in Mississippi Constitutions, pp. 99 to 105; Vicksburg v. Herman, supra; Robinson v. Vicksburg, 99 Miss. 439, 54 So. 858. The effect, therefore, of the legal title not being in the plaintiff, is not to preclude any recovery by it. It was using said property under a claim of title as against the owner of the building, and had a right to recover damages, if any accrued by any act of the municipality; but we think the suit must fail because prior to the erection of the garage, and prior to the establishment of the business by the appellant, the city had established the grade of the street, and mere permission by the city for the appellant to fill in the street with dirt and gravel and put in a drain pipe so as to raise the level of the street to the level of the abutting property did not preclude the city from removing these obstructions when it became proper and necessary for the improvement of the street. It was a mere license, at most. No order had ever been entered upon the minutes for so doing. It could not have any effect as a contract, although it may have been verbally understood between the city authorities and the owner at the time of making the fill that it would be permitted to do so. The only way that a city could be deprived of its right to use the grade established would be by establishing a new grade by a proper order on its minutes. The streets of a city are for the use of the public, and when a grade has been established all damages accrue at once which result from such establishing, although the actual conditions under which damages are suffered may thereafter operate. In other words, in the present case, whatever damages were caused the abutting landowner accrued at the time the grade was established, and, if such damages were not then claimed, or, if claimed, and were paid, that would foreclose future actions and contentions growing therefrom.
We therefore think that the appellant's case, as developed, did not present a case entitling him to recover damages, and that the proof shows that the grade was not lowered beyond the grade established by Ball prior to the erection of the garage and the making of the entrance thereto.
We find no error warranting us in reversing the judgment of the court below, and it will therefore be affirmed.
Affirmed.