Berry v. Southern Pine Electric Power Ass'n , 222 Miss. 260 ( 1954 )

McGehee, C. J.

It is sought in this suit of the appellant H. L. Berry to recover damages, both actual and punitive, from the appellee Southern Pine Electric Power Association, and to obtain a mandatory injunction so as to require such Electric Power Association to remove certain poles and electric power lines from a right-of-way sold and conveyed by the appellant and his wife for highway purposes to the appellee Mississippi State Highway Commission, on March 13, 1939. The proof disclosed that the poles and electric power lines were placed on the highway right-of-way during the latter part of the year 1951 over the written protest of the appellant as abutting landowner but in reliance upon a written permit from the State Highway Commission.

The bill of complaint alleges that the right-of-way conveyed to the appellee Mississippi State Highway Commission by the appellant and his wife consisted of “a strip of land 100 feet in width, extending through, over, on and across” the lands of the appellant consisting of approximately 86 acres, and was for “a proposed highway as now surveyed and shown by the plans of said highway on file in the office of the State Highway Department at Jackson, Mississippi, and known as State Project No. 13-1500-C (1)” between the towns of Prentiss in Jefferson Davis County and Mendenhall in Simpson County, Mississippi. The proposed highway is what is now known as State Highway No. 13, which runs in a general north and south direction and passes through the Gwinville Gas Field and the village of Gwinville, Mississippi, in Jefferson Davis County.

The remaining lands of the appellant H. L. Berry have a frontage of approximately one-quarter of a mile on the east side of this paved highway. Directly across the highway from Berry’s land there are located 12 or 13 nice residences facing to the east on the highway, together with the gas plant of the Southern Natural Gas Company where approximately 150 men are employed. There is a postoffice and store in the village, and the proof discloses without dispute that the property of Berry along the highway is as suitable for residential purposes as is the land across the highway and in front thereof, unless made less so because the appellee Electric Power Association has its poles and high voltage power lines on the east side of the highway right-of-way, and along in front of the Berry property. He testified that these high powered transmission lines being strung on poles about 25 feet high were considered dangerous in that they may fall or be blown down, and that as now located they would interfere with 'television and radio reception, and with the result that the fair cash market value of his land was reduced from $12,000.00 to $10,-000.00 by reason of the location of the said high-powered lines between his one-quarter mile frontage on the highway and the paved portion thereof.

The appellant introduced a local citizen who claimed to be familiar with the fair cash market value of the land before and after this additional burden or servitude was imposed by the construction of this high-powered electric wire; this witness thought that the residential sites of Berry’s property fronting the highway were rendered at least $100.00 less valuable per lot by reason of the presence of the electric power line.

One witness for the defense, who lived about 15 miles from the land, expressed the opinion that Berry’s property was not damaged by reason of. tbe presence of these electric power lines. 'There were four of these lines, three of which carried 13,000 volts.

The trial judge rendered no express finding of fact on the conflict in the testimony as to whether or not the Berry property had been damaged, and since it is manifest from the great weight of the testimony that actual damage to the market value of the abutting property was shown we conclude that the decree dismissing the bill of complaint with prejudice was based upon the contention of the defendants that the complainant was without remedy even though the market value of his property may have been substantially reduced by reason of the location of the electric power line on the highway right-of-way, upon the theory that the appellee Electric Power Association was authorized and empowered by statute to place its electric power line on the highway subject only to the approval of the State Highway Commission and without regard to any objection on the part of the abutting landowner.

Section 17 of the State Constitution of 1890 provides, among other things, that: “Private property shall not be taken or damaged for public use, except on due compensation ’* * * made to the owner or owners thereof, in a manner to be prescribed by law * # * ??

This Court held in the cases of Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162, and in State Highway Commission v. Mason, 192 Miss. 576, 4 So. 2d 345, 6 So. 2d 468, that Section 17 of our State Constitution is self-executing. The Court had theretofore held in the case of Hill v. Woodward, 100 Miss. 879, 57 So. 294, that a guarantee in the constitution can not be overridden by the public policy of the State.

The Legislature has declared, with full authority so to do, a public policy of encouraging the development of the oil and gas and electric power industries in this State by giving them the right to build or construct pipe lines and electric power lines “along or across highways, * * * , and public lands * * The Legislature has authorized this to be done without regard to whether a landowner may be damaged thereby, and without regard to whether the landowner consents thereto or not. This, too, was a legitimate exercise of the legislative power, but as we held in the case of Willmut Gas & Oil Co. v. Covington County, 221 Miss. ......, 71 So. 2d 184, “we cannot assume that the Legislature intended by the enactment of Section 2780 (Code of 1942) to violate the constitution. On the contrary, the presumption is that that body intended to comply with the organic law, and the statute should be given a reasonable interpretation which is consistent with that presumed intent and which would permit the upholding of the Act.”

Section 2780, Code of 1942, as amended, which found its origin in Chapter 291, Laws of 1922, provides among other things as follows:

“All companies or associations of persons, incorporated or organized, for the purpose of building or constructing pipe lines and appliances for the conveying and distribution of oil or gas or for the purpose of constructing, maintaining and operating lines for transmitting electricity for lighting, heating and power purposes, are hereby empowered to exercise the right of eminent domain in the manner now provided by law, to build and construct the said pipe lines and appliances along or across highways, # # and public lands. * * * all such companies or associations shall be responsible in damages for any injuries caused by such construction or use thereof.”

Chapter 291, Laws of 1922, contains the provision last above quoted and has been brought forward as Section 2780, Code of 1942, as amended. This is one of the statutes relied upon by the appellee Electric Power Association as a defense to liability in the case at bar; and it is argued that when the appellant, H. L. Berry, executed his deed of conveyance of the right-of-way to the Mississippi State Highway Commission on March 13, 1939, he is deemed to have executed the conveyance with this statute of 1922 read into the same. Even so, the statute assured him that all such companies or associations should be responsible in damages for any injuries caused by the construction or use of an electric power line over the land described in the conveyance.

We should assume that the State Highway Commission in paying out the funds of the Highway Department did not intend to pay him for a second easement (not needed for highway purposes) to be utilized by an electric power company some twelve years later. So far as the actual intention of the parties to the conveyance is concerned, the grantor testified that the construction of an electric power line on the right-of-way was neither mentioned nor taken into consideration in determining the price or consideration that the State Highway Commission was to pay him for the right-of-way. His testimony to that effect is undisputed in the record. If he is to be bound by Chapter 291, Laws of 1922, wherein electric power companies or associations were authorized and empowered to build or construct their lines along a highway right-of-way, then it follows that such companies or associations in relying upon this statute are invoking the same in the light of their responsibility to pay “any damages for any injuries caused by such construction or use thereof.”

The appellee Electric Power Association also invokes as a defense Subsection (f) of Section 8038, Code of 1942, brought forward from Chapter 47, Laws of 1930, granting the State Highway Commission the authority:

“To make proper and reasonable rules, regulations and ordinances for the placing, erection, removal or relocation of telephone, telegraph or other poles; sign boards, fences, gas, water, sewerage, oil or other pipe lines, and other obstructions that may in the opinion of the Mississippi highway commission contribute to the hazard upon any of the state highways, or in any way interfere with the ordinary travel, upon such highways or the construction, or reconstruction thereof, and to make reasonable rules and regulations for the proper control thereof. Any violation of such rules or regulations or non-compliance1 with-such ordinances shall constitute a misdemeanor.

“And whenever the order of the state highway commission shall require the removal of, or other changes in the location of telephone, telegraph or other poles, sign boards, gas, water, sewerage, oil, or other pipe lines or other similar obstructions, the owners thereof shall at their own expense move or change the same to conform to the order of the said state highway commission. Any violation of such rules or regulations, or non-compliance with such orders shall constitute a misdemeanor;”

However, we are of the opinion that this subsection in the enumeration of the powers of the State Highway Commission merely confers upon the Commission in the exercise of its jurisdiction over the highways the power to supervise the location, etc. of telephone, telegraph or other poles, and other obstructions so as to prevent them from constituting a hazard or interfering with the ordinary travel upon the highways, and that this grant of authority to determine the location of poles and wires upon the highway presupposes that a telephone, oil or gas company or electric power company has obtained the right to place their poles, pipes, or wires upon the highway right-of-way in the exercise of the right of eminent domain for that purpose as contemplated by Section 2780, Code of 1942, as amended, as brought forward from Chapter 291, Laws of 1922, which makes such telephone, oil and gas, and electric power companies or associations responsible in damages for any injuries caused by such construction or use thereof. Section 8038, supra, does not undertake to confer upon the State Highway Commission the authority to grant to telephone, oil and gas pipe lines, and to electric power lines, the use of the highway right-of-way for the purpose of constructing their poles and telephone and electric power lines ■ or gas pipe lines, without regard to the constitutional right of an abutting landowner to recover damages where his private property may have been damaged for such public use.

The appellee Electric Power Association invokes the further defense of Section 5474, Code of 1942, which enumerates the powers of electric power associations, including subsection (6) of the said Section 5474, which confers upon electric power companies or associations the right: “To use any right of way, easement or other similar property right necessary or convenient in connection with the acquisition, improvement, operation or maintenance of a system, granted by the State or any political subdivision thereof, provided that the governing body of such political subdivision shall consent to such use; and to have and exercise the power of eminent domain in the manner provided by the' condemnation laws of this State for acquiring private property for public use, such right to be paramount except as to the property of the State or of any political subdivision thereof. ’ ’

However, it will be noted that this subsection of the statute contemplates that such electric power companies or associations shall not only obtain the consent of the State Highway Commission, if applicable thereto, but also contemplates the exercise of the power of eminent domain in the manner provided by the condemnation laws of this State for acquiring private property for public use — a necessary prerequisite where the placing of poles and electric power lines on the right-of-way would constitute an additional burden or servitude upon the estate granted unto the State Highway Commission by an abutting landowner.

The appellee finally invokes as a defense Section 1506, Code of 1930, Chapter 233, Laws of 1926, (Section 2778, Code of 1942), which reads as follows: “All companies or associations of persons incorporated or organized for such purposes are authorized and empowered to erect, place and maintain their posts, wires and conductors along and across any of the public highways, streets or waters and along and across all turnpikes, railroads and canals, and also through any of the public lands; but the same shall be so constructed and placed as not to be dangerous to persons or property; nor interfere with the common use of such roads, streets, or waters; nor with the use of the wires of other wire-using companies ; or more than is necessary with the convenience of any landowner.” However, this statute must be construed in connection with Section 1508, Code of 1930, Chapter 291, Laws of 1922, brought forward as Section 2780, Code of 1942, as amended, and which provides that such companies or associations “shall be responsible in damages for any injuries caused by such construction or use thereof.” Moreover, the said Section 1506, Code of 1930, (Section 2778, Code of 1942), must also be construed in connection with Section 17 of our State Constitution which guarantees compensation to any landowner whose property is taken or damaged for public use. The argument on behalf of the Electric Power Association that the several statutes hereinbefore set forth have the effect of authorizing the Association, holding a permit from the State Highway Commission, to place its poles and power lines on the right-of-way, without being accountable to an abutting landowner for any actual damage caused thereby to his property, overlooks the fact that the right of the owner of the fee in that behalf was beyond the control of the Legislature. His right is predicated upon the constitutional guarantee that private property shall not be taken or damaged without just compensation.

In Burrall v. American Telegraph Company, 224 Ill. 266, 272, 8 L. R. A. (N. S.) 1091, 79 N. E. 705, the Court said: “If the land is needed for a public use the law provides a way for acquiring it, and the constitution prohibits its appropriation for such a use without compensation. ’ ’

In 18 Am. Jur. 834, Section 204, it is recognized that the authorities which hold that the poles and wires of the telegraph and telephone lines are not an additional servitude upon a public highway are based upon the reasoning that a message sent along the wires in a street or on a highway right-of-way takes the place of a messenger and thus relieves the street or highway of much of the use to which it would otherwise be subjected. But this reasoning, if sound, is not applicable to an electric power line which has no relation to promoting or lessening public travel over a highway.

The deed of conveyance from the appellant to the State Highway Commission on March 13,1939, is similar in all material respects, except as to the description of the land, number of the highway project, the amount of the consideration, etc., to the deed of conveyance executed by J. S. Whitworth and wife on January 4, 1939, to the Mississippi State Highway Commission, which was involved in the case of Whitworth, et al. v. Mississippi State Highway Commission, 203 Miss. 94, 33 So. 2d 612, and which is fully set forth in the report of that case. Each of the said conveyances is a warranty deed, and each recites that it is "understood and agreed that the consideration herein named is in full payment and settlement of any and all claims or demands for damage accrued, accruing, or to accrue to the grantors herein, # * * for or on account of the construction of the proposed highway, change of grade, water damage, and/or any other damage, right or claim whatsoever.” We are therefore of the opinion that the consideration paid wqs only "for or on account of the construction of the proposed highway” mentioned in the deed, and for any other damage, right or claim whatsoever resulting from the construction of the proposed highway; and that if the grantor is presumed to have executed the deed in the light of the sections of the Code hereinbefore quoted, then the grantee in the right-of-way deed is presumed to have accepted the deed in the light of Section 17 of the State Constitution, supra, which conferred upon the landowner the right to recover compensation for any damage to his property which may not have been compensated for in the consideration paid for the deed.

In the case of Whitworth, et al. v. Mississippi State Highway Commission, supra, it was held on Suggestion of Error that Section 8023, Code of 1942, giving to the State Highway Commission the control and supervision of highways and the right of eminent domain, and Section 8038, Code of 1942, authorize the Commission “ ‘to obtain and pay for rights of way,’ and to this end ‘may condemn. . . or acquire by gift or purchase lands containing road building materials ... to condemn or to acquire by gift or purchase lands necessary for the safety and convenience of traffic.’ ” And the Court further held that “The extent of authority in the cited sections contemplates the acquisition of rights of way to the end that a highway system may be constructed and maintained. That it may so acquire ‘land or other property’ is to be interpreted in the light of a means by which it may attain its ordained end, to wit, that such lands ‘be necessary for a state highway system.’ ”

The Court then proceeded to say further in the Whit-worth case that “We are of the opinion that the purpose of our highway statutes, Code 1942, Title 30, is the acquisition of lands solely for highway purposes.” The deed of conveyance in the Whitworth case purports to convey a fee simple title, that is to say there are no limitations on the estate purported to be conveyed. The same is true in the instant case, but the Court in the Whitworth case further said: “We are of the opinion therefore that in this case the appellee acquired no more than it was empowered to acquire, that is to say, a right of way or easement.” In other words, the Court held that the Highway Commission acquired no greater estate than it was entitled to condemn under eminent domain. The general rule is that the power of eminent domain should be construed favorably to the landowner and that no greater estate can be taken than the particular use requires.

In 18 Am. Jur. 837, Section 206, in the chapter on Eminent Domain, it is said: “It is quite generally conceded that electric light and power lines in a public street or highway, so placed for the commercial purpose of furnishing electric current to private individuals or concerns constitute an additional burden or easement for which the owner of the abutting property, who also owns the fee in the street or highway, is entitled to compensation. ’ ’

In Stowers v. Postal Telegraph & Cable Company, 68 Miss. 559, 9 So. 356, it was stated that: “There is some conflict in the authorities, but the decided weight is to the effect that telegraph companies form no part of the equipment of a public street, but are foreign to its use, and that where the abutting owner is the owner of a fee to the centre of the street he is entitled to additional compensation for the additional burden placed upon his land.” Citing a number of cases from other jurisdictions. The Court further stated in its opinion that it was not competent for the City of Vicksburg to authorize the erection of telegraph wires on a street right-of-way by a telegraph company to the injury of the abutting landowners without compensation to them for the injury, for the reason that the right “is secured by constitutional provision, and can only be obtained by the exercise of the right of eminent domain, and upon due compensation being first made.”

In the case of Town of Hazlehurst v. Mayes, 84 Miss. 7, 36 So. 33, the Court held that the owner of land abutting on a street, whether he owned the fee to the street or it be in the municipality, is entitled to compensation for any additional servitude placed on his property by any nse of the street not incidental or necessary to its enjoyment as a street by the public. In that case the Court recognized the right of a municipality to light its streets for safe passage by the traveling public, citing the case of Gulf Coast Company v. Bowers, 80 Miss. 581, 32 So. 114, but as hereinbefore stated there is no relation between the operation of an electric power line along a rural highway and public travel thereover. A lengthy annotation under the case of Query v. Postal Telegraph & Cable Company, 178 N. C. 639, 101 S. E. 390, is found in 8 A. L. R. 1293, wherein there is cited the case of Stowers v. Postal Telegraph & Cable Company and cases from Illinois, Kentucky, Virginia, Maryland, Nebraska, New York, New Jersey, Ohio, Texas, Wisconsin and other states holding that where the additional improvement has no relation to public travel, it is an added servitude for which the abutting landowner is entitled to compensation for any damages to his property, when the improvement is not within the purposes of the original easement.

In the case of Post v. Suffolk Light, Heat and Power Company, 136 N. Y. Supp. 401, the New York Court held in effect that the placing of electric power poles in the highway right-of-way would be an additional burden which the Legislature cannot authorize, without compensation being made therefor to the owners of the abutting property on the highway, unless the electric power line in some manner contributed to serving the purpose of public travel on the highway.

In Southwestern Bell Telephone Company v. Biddle, 186 Ark. 294, 54 S. W. 2d 57, the Court, in construing the statutes of that state which allowed the construction and operation of telephone and telegraph lines along and over the public highways, said: “We also think that the erection of a telephone line upon a public highway along lands of adjoining owners in which the public. only has an easement for use as a highway would not prevent the owner of the land from collecting damages for the new servitude to which his land is subjected, such use not having been in contemplation when the easement was taken or granted. ’ ’

In the case at bar the six poles and the high voltage electric power lines were erected on the highway right-of-way in question some twelve years after the right-of-way was conveyed by the appellant to the State Highway Commission and the deed of conveyance expressly provided that it was understood and agreed that the consideration paid was for and on account of the construction of the proposed highway. Moreover, under the decision in the Whitworth case, supra, the State Highway Commission, would not have been warranted in using the funds of the highway department to pay for an additional easement for the use of an electric power association, since it was expressly held in that case, as hereinbefore stated, that the Commission had the right to acquire the easement solely for highway purposes. The case further held that the grantee could obtain by purchase no greater estate than it could have acquired by condemnation. Most assuredly, it cannot be said that if the appellant had been unwilling to convey the right-of-way by deed to the State Highway Commission, an easement could not have been condemned by the State Highway Commission on March 13, 1939, both for highway purposes and for the construction of the electric power line, since the State Highway Commission derived its authority to acquire the right-of-way by statutes which have been construed to limit such right to highway purposes.

Finally, we are not unmindful of the decision in the case of State, ex rel York v. Walla Walla County decided by the Supreme Court of the State of Washington and reported in 172 A. L. R. 1001, 182 P. 2d 577, decided under a statute of that state, the constitutionality of which was not raised in the case, and which held that a co-operative electric association could place its lines along the right-of-way of county roads without compensating the abutting landowners whose property may have been damaged thereby, but we are unable to follow that decision, which disregarded or held inapplicable a constitutional provision of that state like unto Section 17 of our State Constitution, and upon the theory that the erection of the power line was not an unreasonable interference with the rights of the abutting landowners. The constitutional provision in question, however, contains no exemption from liability to pay compensation for damage to private property for a public use provided the interference with the rights of the abutting landowners is a reasonable interference. That decision recognizes that the abutting landowners would have been entitled to compensation, even though the use of the highway by the electric power line had been authorized, provided the use of the right-of-way for that purpose was an unreasonable encroachment on the rights of the abutting landowners. Whereas, we think that the test should be whether or not the rights of an abutting landowner have been encroached upon at all, to his damage. The Court in that case cited no authority to support its position except a few of its own prior decisions.

Even though there are decisions from other jurisdictions which hold that the erection of a telephone line on a highway right-of-way for sending messages has the effect of dispensing with the necessity to send a messenger over the highway to convey the information transmitted by telephone, those decisions do not support the theory that an electric power line serves the purpose of a highway for public travel, or that the use of such a line has any relation to public travel.

We are of the opinion that the decree appealed from should be affirmed to the extent that it denied the mandatory injunction sought for the purpose of requiring the removal of the poles and electric power lines from the highway right-of-way, and also to the extent that the decree denied punitive damages. The electric power company has the right to maintain its power line on the right-of-way, but subject to the rights of the complainant under Section 17 of onr State Constitution, and we also think that the appellee Electric Power Association placed its line on the right-of-way in good faith, upon legal advice of its counsel, and is not liable for punitive damages for so doing, even though its aetion in that behalf was over the written protest of the complainant. But we are of the further opinion that the case should bo reversed and remanded for a new trial as against the appellee Electric Power Association on the question of actual damages, no relief as against the State Highway Commission having been sought by the bill of complaint.

We also affirm the action of the chancellor in setting aside the decree pro confesso taken against the defendant Electric Power Association, for the reason that the chancellor was warranted in concluding that the failure of such defendant to file its answer within the time required by law was not due to willful inattention or indifference on the part of counsel who had been instructed by the defendant to file the same, and that the delay occasioned thereby was through mistake and was not prejudicial or to the injury of the complainant. Griffith’s Mississippi Chancery Practice, 2nd Ed., Section 269.

Affirmed in part, reversed in part, and remanded.

Hall, Kyle, Holmes and Arrington, JJ. concur.