Tishomingo County v. McConville ( 1925 )

^* Headnotes 1. Eminent Domain, 20 C.J., section 546; 2. Eminent Domain, 20 C.J., section 153. Appellee, C. McConville, brought this action in the circuit court of Tishomingo county against the appellants, Tishomingo county and the town of Iuka jointly, for damages alleged to have been done his property in the town of Iuka by lowering the grade of Quitman street in said town. There was a trial and judgment against appellants jointly for one hundred dollars, from which judgment appellants prosecute this appeal, and appellee prosecutes a cross-appeal.

Appellants each deny liability for the injury and damages done appellee's property. Each contends that under the evidence and the law the trial court erred in refusing its request for a directed verdict. Appellee prosecutes a cross-appeal upon the ground that the amount awarded by the jury was so grossly inadequate as to entitle appellee to another trial.

Appellee's property fronts one hundred and seventy-five feet on Quitman street in the town of Iuka. Appellee alleged and undertook to prove that appellants were liable to him for damage done his property in the construction of a county highway through the town of Iuka along Quitman street therein. In the construction of the highway by the county with the permission of the municipality, the grade was lowered from six to twelve feet in front of appellee's property, rendering ingress and egress to and from his property difficult. Injury and damage were shown without conflict in the evidence. The court directed a verdict in favor of appellee on the question of liability. That action of the court is unquestioned to the extent that injury and damage to appellee's property is admitted by both of appellants, but each denies liability therefor. The controlling facts are, in substance, as follows:

Quitman street in the town of Iuka runs east and west. A good roads district was organized by the board of supervisors of Tishomingo county for the purpose of constructing a road east and west through said county. The municipality of Iuka was included in this road district, and the road to be constructed was to run through the town of Iuka from east to west along Quitman street. Acting under the authority of section 1, chapter 255, Laws of 1914, (Hemingway's Code, section 7179), the town of Iuka made an order on its minutes for the conveyance of Quitman street to Tishomingo county, and also gave its consent under said statute, by order spread upon its minutes, for the construction and maintenance of the highway over Quitman street by the county road commissioners. Tishomingo county, pursuing the statute through the road commissioners, had plans and specifications made for the construction of the highway, including its construction through the town of Iuka, and later the contract was let and the highway constructed. In the construction of the highway, the injury and damage in question was done by the contractor in obedience to such plans and specifications.

The statute involved is in the following language (Hemingway's Code, section 7179 [Laws of 1914, chapter 255]): "Any public highway being constructed, improved and maintained under the provisions of chapter 149, of the Acts of 1910, or under chapter 257, of the Laws of 1912, or under any of the various methods of building good roads authorized by law of the state of Mississippi, where the same shall run or extend into or through any incorporated municipality within the district or districts operating under said act may be constructed, improved and maintained the same within as without the corporate limits of said municipality; provided, however, that with the consent of and in conjunction with the commissioners provided for in said act the said municipality may, out of its own funds, add such street crossings, or making improvements, such as grading, culverts, graveling or other improvements as it may desire. Provided the mayor and board of alderman shall, by an order, spread upon their minutes consent for the work to be done by the commissioners."

So far as the liability of the town of Iuka is concerned, that is settled in favor of its liability by the case of Atkinson v.Town of Decatur, 131 Miss. 707, 95 So. 689, construing this identical statute. Under the following cases municipalities are liable for the character of injury done appellee; Vicksburg v.Herman, 72 Miss. 211, 16 So. 434; Jackson v. Williams,92 Miss. 301, 46 So. 551; Robinson v. Vicksburg, 99 Miss. 439, 54 So. 858; Slaughter v.Meridian, 95 Miss. 251, 48 So. 6, 1040, 25 L.R.A. (N.S.) 1265;Berry v. Mendenhall, 104, Miss. 94, 61 So. 163; Funderburk v. Columbus, 117 Miss. 173, 78 So. 1. The effect of this statute, where a county and municipality come under its provisions, is to make the jurisdiction of the county and the municipality joint. As held in the Atkinson case, 131 Miss. 707, 95 So. 689, the municipality under the statute is not divested of its jurisdiction over its streets to the extent that it is relieved of liability for injuries received because of its defective bridges and streets. The statute simply gives the county joint jurisdiction with the municipality, to be exercised between them in the manner laid down by the statute.

The county let the contract and had the work done, resulting in injury and damage to appellee's property. Under section 17 of our Constitution, prohibiting the taking or damaging of private property for public use without due compensation having been first made, the county is liable for the injury and damage done appellee in this case. Rainey v. Hinds County, 78 Miss. 308, 28 So. 875; Morris v. Covington County, 118 Miss. 875, 80 So. 337; Covington County v. Watts, 120 Miss. 428, 82 So. 309;Jackson v. Monroe County, 124 Miss. 264, 86 So. 769. The county would have been liable for such an injury had it been done outside of the municipality on one of its county roads.

We hold, therefore, that, by virtue of the statute and section 17 of the Constitution, the county and municipality are jointly and severally liable for the injury and damage done appellee's property by the construction of the highway in question.

We find no merit in appellee's cross appeal. There was ample evidence to sustain a verdict of only one hundred dollars. From the evidence we cannot say that the verdict was so inadequate as to evince passion or prejudice on the part of the jury.

Affirmed both on direct and cross appeal.

Affirmed.