Opinion
No. 31526.
January 14, 1935.
1. HIGHWAYS.
Injunction enjoining board of supervisors from laying out and opening up public road held properly denied, since complainant had an adequate remedy at law under statute providing for review of proceedings of board on such matters (Code 1930, section 6345).
2. HIGHWAYS.
Where complainant's bill to enjoin board of supervisors from laying out and opening up public road did not show that road would enter complainant's lands or otherwise affect his interests, and it appeared that road had been laid out and paid for, complainant's bill held demurrable.
3. HIGHWAYS.
Private citizen whose rights are not invaded may not maintain bill to enjoin board of supervisors from laying out and opening up public road unless he procures from appropriate public authority leave to institute such suit in his own behalf and that of the public generally.
APPEAL from the Chancery Court of Grenada County.
W.M. Mitchell, of Grenada, for appellant.
Sections 6340 and 6341, Code of 1930, prescribe the method of laying out, and establishing new roads.
In the exercise of their authority the board acts are limited to the special statutory authority and every jurisdictional fact should appear affirmatively of record.
Craft v. DeSoto County, 79 Miss. 618; Morgan v. State, 79 Miss. 659; Ferguson v. Wilkinson Co., 149 Miss. 623.
It is the duty of the board and not that of the committee to determine the necessity of the road after hearing the parties, and this should be done before the committee is appointed.
Strahan v. Attala Co., 91 Miss. 529; Section 6356, Code of 1930.
The chancellor seems to have based his ruling sustaining the demurrer in this cause upon the idea that the complainant did not have such interest in this matter as to authorize him to seek the relief prayed for in his bill. But that he was in error as to this, and that he can maintain this suit, under his allegations that he was a landowner and taxpayer of the district in which this road is to be built, and will be compelled to pay out money unless the proceeding complained of is prohibited, in the way of extra taxes, is abundantly sustained by the decisions of this court in several cases.
Belzoni Drainage District v. Winn, 98 Miss. 359; Fitzhugh v. City of Jackson, 132 Miss. 585; Hathaway v. Munroe, 119 So. 149; Griffith's Chancery Practice, sec. 193; McKinney v. Adams, 95 Miss. 832. S.C. Mims, Jr., of Grenada, for appellee.
The only limitation the Legislature has ever attempted to prescribe in regard to the establishment or changing public roads is section 6340, Code of 1930. This section is only applicable and controlling when the board of supervisors is proceeding to compel the private owner to yield right of way for public use.
Kinnare v. Gregory, 55 Miss. 612; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349; Henry v. Henderson, 103 Miss. 48; Womack v. Central Lumber Co., 131 Miss. 201; Burks v. Moody, 141 Miss. 370.
The petition and exhibits of the appellant disclose that the board of supervisors, acting within the jurisdiction given it by the constitution, accepted an easement granted to the county by the owners of the land to establish a public highway. The question as to whether or not the road was a public necessity or whether the same was practical, under the circumstances of this particular case, was a matter absolutely within the sound discretion of the board of supervisors and not subject to review by any court.
The appellant, Blakely, filed a bill in the chancery court of Grenada county seeking to enjoin the board of supervisors from laying out and opening up a public road in said county, challenging the sufficiency of the proceedings therefor, and alleging that he was a resident citizen, landowner, and taxpayer of said supervisors' district. The petition for the road, the order of the board appointing the road commissioners, and the final order approving the road, were made exhibits to the bill. Appellant did not allege that the road would enter any lands belonging to him, or in which he had any interest, nor did he allege that he had applied to any public authority having power to represent the public to file such suit.
The chancellor did not grant the preliminary injunction, but set a day for a preliminary hearing at which the board of supervisors appeared and answered, and among other things, setting up in its answer that the road had been completely opened, all expenses incurred therein paid, and that they had acted in good faith in dealing with said matter. The chancellor sustained a demurrer made a part of the answer and granted an appeal to settle the principles of the cause.
Section 6345, Code 1930, provides that: "All proceedings of the board of supervisors, in laying out, altering, or changing any public road, and assessing damages therefor, may be reviewed by the circuit court in respect to any matter of law arising on the face of the proceedings; and on the question of damages the cause may be tried anew, and the damages may be assessed by a jury if the owner of the land so desire," etc. This section grants a remedy at law, and, consequently, an injunction should not have been granted. In addition to this, the appellant did not show, by his bill, any right to challenge the action of the board of supervisors in said matter. No property of his was invaded by the laying out of said road, and it was shown that the road had been laid out and all expenses therefor paid out of the public funds; consequently, there was no burden upon the appellant's property, or himself, in reference thereto.
Furthermore, the public interest would suffer by the undue meddling of private citizens in matters of this kind. Before the appellant should be permitted to maintain a suit of this character, he should apply to an appropriate public authority to institute such suit in his behalf and that of the public generally. See McKee v. Hogan, 145 Miss. 747, 110 So. 775, where questions of this kind are discussed and authorities reviewed. See, also, American Oil Co. v. Interstate Wholesale Grocers, Inc., 138 Miss. 801, 104 So. 70.
The judgment of the court below will be affirmed.
Affirmed and remanded.