Ferguson v. Board of Sup'rs , 149 Miss. 623 ( 1928 )

^* Corpus Juris-Cyc. References: Eminent Domain, 20CJ, p. 534, n. 49, 41; p. 627, n. 95; p. 887, n. 43. Appellant appealed to the circuit court of Wilkinson county from an order of the board of supervisors of that county condemning a right of way through his lands for a public highway. There was a trial in the circuit court resulting in a judgment affirming the action of the board of supervisors. From that judgment, appellant prosecutes this appeal.

This is the second appearance of this case in this court.Ferguson v. Seward et al., 146 Miss. 613, 111 So. 596. On the former appeal, the judgment appealed from was reversed and the cause remanded. Before the mandate got back, the board entered an order dismissing the proceedings involved in the cause on the former appeal, and begun new proceedings, under section 4400, Code of 1906 (section 8340, Hemingway's 1927 Code) to condemn a right of way through appellant's land for a public highway. As above stated, the condemnation proceedings before the board of supervisors were affirmed by the judgment of the circuit court.

The order of the board of supervisors granting the petition for laying out a public road did not adjudicate that the public interest or convenience required the road to be laid out and established. Appellant contends, for that reason, that the order of the board was void.

Section 4400, Code of 1906 (section 8340, Hemingway's 1927 Code) follows:

"When any person shall desire to have a public road laid out, altered or changed, a petition shall be presented to the board of supervisors of the county, signed by ten or more freeholders or householders of the county interested in the road, setting forth the commencement and termination and general course thereof, and that the public interest or convenience requires the road to be laid out and opened or altered or changed, as shown in the petition; and the petitioners if not owners of the land through which the road runs or is proposed to be run, or if the land through which the road runs, or is proposed to run, is owned by the county, or a municipality of the state, by giving a copy of the same to the president of the board of supervisors if the county is the owner of the land, or to the mayor if a municipality is the owner thereof, and shall give five days' notice to the owners of the land, in person, or by leaving the same at their residence, if they reside in the county, or if the owners be nonresidents of the county, by putting up the notice in some conspicuous place on the land through which the road runs, or is proposed to run, and thereupon the board of supervisors shall hear the parties, and if it determine that the prayer of the petitioners ought to be granted, in whole or in part, it shall appoint a committee of two members, of districts other than that of the road or proposed road, which shall examine and view the contemplated route of the road, and, if they find the same practicable they shall lay out and mark the road, or the alteration or change, and report their proceedings in writing to the board at its next meeting."

It will be noted from the statute that the petition for laying out, altering or changing a public road must set out that the "public interest or convenience requires the road to be laid out and opened or altered or changed," as shown in the petition.

On the former appeal, the court held that it was a necessary, jurisdictional fact, which had to appear in the orders of the board of supervisors, that the required number of signers of a petition for laying out, altering, or changing a public road be freeholders or householders of the county, and that nothing would be presumed in favor of the jurisdiction of the board, and that the mere recital in the face of the petition that the signers thereof were freeholders or householders did not establish that they were such in fact, and could not take the place of a finding by the board of supervisors that this necessary, jurisdictional fact existed. The court cited, as being directly in point, Aden v. Board ofSupervisors, 142 Miss. 696, 107 So. 753.

What was said in the Aden case and what was said on the former appeal of this case we think is decisive of this question by analogy, for, under the statute, plainly, one of the fundamental things which must be set out in the petition and adjudicated by the board is that the public interest or convenience requires the laying out, altering, or changing of the particular road under consideration. That requirement is as vital as the requirement of the statute that the petition for laying out, altering, or changing the road be signed by ten or more freeholders or householders of the county interested in the road. Under this statute, the board of supervisors exercise limited, special, statutory authority, and is governed by the rules of law applicable to the exercise of such limited authority. Craft v.De Soto County, 79 Miss. 618, 31 So. 204.

In Strahan v. Attala County, 91 Miss. 529, 44 So. 857, the court held that where a petition is filed with the board of supervisors under this statute for the purpose of having a new road laid out, the question whether the public interest or convenience required it was a matter addressed to the sound discretion of the board. The power of eminent domain is in derogation of common right. Therefore the statutes conferring the right of eminent domain are to be strictly construed. They are not to be extended beyond their plain provisions. The right to exercise this power is strictly limited to the purposes expressed in the statutes conferring the power. Where there is any doubt of the right to exercise the power, the landowner is entitled to the benefit of such doubt. Wise v. Yazoo City,96 Miss. 519, 51 So. 453, 26 L.R.A. (N.S.) 1130, Ann. Cas. 1912B, 377. In Polk v. Hattiesburg, 109 Miss. 872, 69 So. 675, the court had under consideration an ordinance of the city closing a street. The statute authorizing the closing of the street was set out in the opinion. The court held, among other things, that the municipal authorities clothed with the power to close the street had to judicially determine whether the contemplated use was a public use.

Public roads are only authorized to be laid out, and lands condemned therefor, when it is shown to the board of supervisors that the public interest or convenience requires them. It is argued that the order of the board in this case sufficiently adjudicated that the proposed road through appellant's lands was required by the public interest or convenience, because the order of the board recites more than once that it is to be a public road. We disagree with appellant's position. The board of supervisors might, in disregard of the statute, lay out and establish a public road where the public interest or convenience did not require it.

We are of opinion that the failure of the board to adjudicate, on its minutes, that the laying out and establishment of the public road through appellant's lands was required by the public interest or convenience, was jurisdictional, and that therefore the order appealed from was void.

We do not think there is enough merit on appellant's other contention to require a discussion by the court.

Reversed and remanded.