Board of Supervisors v. Olsen , 118 Miss. 885 ( 1918 )

Sykes, J.,

delivered the opinion of the court.

The appellee, A. Olsen, filed a bill of injunction against the board of supervisors of Grenada county to restrain the board from opening up a private road through the plantation8 of appellee, which road had been located and ordered opened up by an order of the board of supervisors. The bill in substance alleges: That the appellee is the owner in fee of the land through which the private road is to run. That he had previously by deed given to the county a strip of land to relocate the public road which had been changed froin its old location by order of the board. That in this deed to the board was the following language:

“I agree and obligate myself to give Mrs. Cora Griffis an outlet over my lands to the public road.”

That because of the. change in location of the public road Mrs. Griffis had no outlet to same. That he pointed out to several members of the board of supervisors the outlet over his lands he was willing to give Mrs. Griffis. That the private road located by the order of the board of supervisors does not follow the route he intended giving Mrs. Griffis, but goes through the fertile cultivated lands and does him irreparable damage.

That the board of supervisors against his consent and over his protest issued the order to open up the private road, giving the outlet to Mrs. Griffis. That his deed to Grenada county made Exhibit A. to the bill does not contain any ground or authority to empower the board of supervisors to go and lay out this road over his lands at any place they may see fit and in the total disregard of his legal rights. That, if the said board has any right whatever under said agreement to lay out said outlet for Mrs. Griffis, it only had the right to lay out the said route as the appellee agreed upon and is willing for it to lay out, and that said board is absolutely without authority of law or right to thus illegally invade his premises and to lay out such way as it has proposed in the order it has issued Exhibits to this bill are copies of the deed from appellee to Grenada county giving it the right of way for the public road, which deed also contains the clause quoted in the bill; also, the order of the board of supervisors. This order of the board recites, among other things, that the question of the location of the private road through lands of appellee from the property of Mrs. Griffis came on to he heard, and that appellee was present both himself and by attorney and presented arguments and contentions to the board in the premises. We will now quote the material part of this order:

“And the board being advised in the premises, ana having found that the said Olsen has, by written deed, agreed to give the right of way for said road over his lands, and being of the opinion that it is to the best interest of the county that said, road be located as herein provided.”

The order then goes on to locate the road. The county filed a demurrer to this bill which was overruled. The second ground of the demurrer is:

“Because the bill shows on its face that the complainant is not entitled'to the relief prayed for.”

A temporary injunction was granted appellee. This appeal is prosecuted from the decree overruling the demurrer, to settle the principles of the case.

It is the contention of the appellee in this case: That the order of the board of supervisors laying out this road is void because it is based upon the clause contained in the deed from him to Grenada county reading as follows:

“I agree and obligate myself to give Mrs. Cora Griffis an outlet through my lands to the public road.”

That this is a mere naked promise, void on its face, without an element of validity as a contract or deed. That, if considered as a deed, it is void because of the patent ambiguity therein; there being no valid description of the right of way.

The contention that the order of the board of supervisors is void because the clause in the deed is void, conceding that it is for the purpose of this opinion, by no means follows. The order of the board of supervisors does not show that it is based upon this deed. Section 170 of the Constitution gives the board of supervisors jurisdiction over tETs subject-matter. The order of the board shows that the appellee appeared both in person and by counsel; therefore the board of supervisors had jurisdiction of the person of appellee. The board having thus obtained jurisdiction of the subject matter and person, its order was not void. The attack upon this order by the bill is merely an attack for irregularities, the contention really being that the order should be enjoined because there was no testimony to sustain it. The only way appellee could have taken advantage of this matter was by direct appeal from the order. Strathan v. Board of Supervisors of Attala County, 91 Miss. 529, 44 So. 857; Wolford v. Williams, 110 Miss. 637, 70 So. 823. Johnson v. Yazoo County, 113 Miss. 435, 74 So. 321.

The demurrer should have been sustained.

Reversed and remanded.