Summary
In Nicholson v. Myres, 170 Miss. 441, 448, 154 So. 282, 283 (1934), a case in which land was left to the City of Natchez for use as a cemetery, the supreme court stated that "[the] failure of the city to use the land as a cemetery did not cause it to revert to the grantor or his heirs; that the title to land sold and conveyed for a designated use will not revert to the grantor or his heirs upon being put to another or different use, in the absence of express terms in the deed providing for reversion."
Summary of this case from Lenoir v. AndersonOpinion
No. 31177.
April 16, 1934. Suggestion of Error Overruled May 14, 1934.
1. LEVEES AND FLOOD CONTROL.
Express power of board of Mississippi levee commissioners to condemn land for levee purposes held to imply power to acquire by conveyance at least as large an interest in land for levee purposes as it could acquire by condemnation (Acts of November 27, 1865, sections 1, 3; Const. 1890, sections 232, 233).
2. QUIETING TITLE.
Complainant has burden of showing perfect title in himself to maintain bill to remove clouds and establish his title to land (Code 1930, sections 403-405).
3. DEEDS.
Deed conveying land to board of Mississippi levee commissioners "for levee purposes," without more, held not to create "condition subsequent" for breach of which land reverted to grantor's heirs (Acts of November 27, 1865, sections 1, 3; Const. 1890, sections 232, 233).
4. LEVEES AND FLOOD CONTROL.
State alone could question right of board of Mississippi levee commissioners to hold land for levee purposes in fee, but neither state nor purchaser from heirs of board's grantor could question title of purchaser from board (Acts of November 27, 1865, sections 1, 3; Const. 1890, sections 232, 233).
APPEAL from Chancery Court of Issaquena County.
Ramsey Russell, of Greenville, for appellant.
The deed from John A. and Ethel D. Moore carries a condition subsequent, not only written therein, by the words "for levee purposes," but also to be implied therefrom the wording of the Constitution of the State of Mississippi, which gives the Board of Mississippi Levee Commissioners the right to "appropriate" lands for the purposes of "maintaining, constructing and repairing levees." That this condition subsequently paved the way for a reverter of the lands to the original grantor or his heirs upon condition broken.
6 Am. Eng. Encyc. of Law (2 Ed.), page 504; C.J., Deeds, secs. 281 and 375; 23 R.C.L., Reversions, secs. 5 and 17; Section 233, Constitution State of Mississippi; Y. M.V.R.R. Co. v. Lakeview Traction Co., 56 So. 393, 396.
The right of eminent domain must be strictly construed, and no other powers must be exercised by the body to which this power is extended that are not set out in express terms, or cannot be construed from the clear implication of the wording of the statutes giving such body this power.
10 R.C.L., Eminent Domain, secs. 78 and 168; 82 P. 615; 20 Ann. Cas. 568; 51 So. 453.
The Board of Mississippi Levee Commissioners cannot purchase for other purposes than those set forth in the laws governing that body, and if they desire land for any other purpose than that of a right of way or a site upon which to locate their office building, they must take by eminent domain proceedings, and not by outright purchase and warranty deed.
Pages 50, 51, 139 of Laws Governing the Board of Mississippi Levee Commissioners, 1921.
It is a well settled principle of law that where land is taken by eminent domain and the easement will suffice for the purpose for which the land is to be used, the fee cannot be obtained.
10 R.C.L., Eminent Domain, sec. 78; Chamberlain v. N.E. Ry. Co., 25 L.R.A. 139, 141; New Jersey Zinc Iron Co. v. Morris Canal Banking Co., 1 L.R.A. 133; Jessup v. Loucks, 1 L.R.A. 134; Neitzel v. International R.R. Co., 36 L.R.A. (N.S.) 523.
Under any circumstances, whether the Board of Mississippi Levee Commissioners, obtained land by condemnation proceedings, by purchase, or in any other manner, they could only obtain an easement that ceased on abandonment of the use for which the land was obtained.
New Jersey Zinc Iron Co. v. Morris Canal Banking Co., 1 L.R.A. 133; Jessup v. Loucks, 1 L.R.A. 134; Neitzel v. International R.R. Co., 36 L.R.A. (N.S.) 523; Chamberlain v. N.E.R.R. Co., 25 L.R.A. 139.
D.S. Strauss and Wynn, Hafter Lake, all of Greenville, for appellant.
The extent of the interest to be acquired by the Levee Board being qualified by the Constitution and the laws creating the Levee Board, no act of the parties could enlarge this limitation. The Constitution and the levee laws limit and qualify the interest to be acquired, and an easement is all it could obtain.
I.C.R. Co. v. Chicago, Ill., 17 L.R.A. 530; Section 233 of the Constitution; Corpus Juris, page 1222; 1 Lewis, Eminent Domain, 710; Nugent v. Levee Commissioners, 58 Miss. 197; Wise v. Yazoo City, 51 So. 453; Crittenden v. Booneville, 45 So. 723.
The appellee has wholly failed to show any necessity for the taking of title to the land, whether fee simple or an easement, and the burden was on him to show that it was necessary, for the purpose of the district, that the Levee Board had to acquire title to the land.
John T. Moore P. Co. v. Morgans, La., etc., Co., 53 So. 22; 20 C.J. 1236.
Where only an easement is taken for public use, and the use is abandoned, the land reverts to the original proprietor, his heirs, or assigns, or perhaps more properly the land is relieved of the burden cast upon it and the owner of the fee is restored to his complete dominion over it.
2 Lewis, Eminent Domain, 1499; Nicholson v. Stockett, Walker 67; Campbell v. Covington Co., 137 So. 112; McCarty v. Southern Pacific Co., 82 P. 615.
The Legislature has seen fit to prescribe the nature of the title which can be acquired by a Levee Board to an easement, and has restricted the use of the land acquired by it to the construction, maintenance and operation of the levee, and no act of the parties can enlarge the right vested by the Legislature, nor remove any of the restrictions imposed by the Legislature upon the conduct of the Levee Board; and this court will not, through a decision, amend a statute of the Legislature of this state so as to enlarge the rights and powers of the Levee Board.
W.H. Clements, of Rolling Fork, for appellee.
John A. Moore and wife, and those claiming derivatively from him or them, are estopped to question the right of the Levee Board to purchase, own, or alienate this land.
Clark v. Slaughter, 34 Miss. 65; Leflore Co. v. Allen, 80 Miss. 298; Kaiser v. Knight, 64 Miss. 492; Saw Mill Co. v. Douglas, 107 Miss. 678; Cleveland T. V.R.R. Co. v. State, ex rel. Ellis, 85 Ohio 251, 39 L.R.A. (N.S.) 1219; Charles River Bridge v. Warren Bridge, 11 Pet 420, 9 L.Ed. 733; Fitzgerald v. Allen, 126 Miss. 678.
The state alone has the right and authority to question the right of the Board to purchase, own or alienate land.
Quitman Co. v. Stritze, 70 Miss. 320; 4 Am. Eng. Enc. 233; Cleveland T. V.R.R. Co. v. State, ex rel. Ellis, 7 R.C.L., sec. 553, page 567; Jones v. Haversham, 107 U.S. 174, 191, 27 L.Ed. 406; Chamberlain, etc., v. North Eastern R.R. Co., 25 L.R.A. 139, 142.
The words, "for Levee Purposes," do not create a condition subsequent to the deed. There are no specific words showing intent and, if so, no right of re-entry or reversion or forfeiture, is retained in the deed.
Thornton v. Natchez, 88 Miss. 1; Soria v. Harrison Co., 96 Miss. 109; 8 R.C.L. 1102, 1104, Sec. 162; Packard v. Ames, 16 Gray 327; Hand v. St. Louis, 158 Mo. 204; Garfield Twp. v. Herman, 66 Kan. 256; Abbot v. Curran, 98 N.Y. 665; Chattam v. Brainerd, 11 Conn. 60, 7 A.L.R. 1429; 19 L.R.A. 262; Coffin v. Portland, 16 Or. 77; Downen v. Rayburn, 3 Am. Eng. Anno. 36; L.R.A. 1918B 692; Cleveland T. V.R.R. Co. v. State, 39 L.R.A. (N.S.) 1277; Ashland v. Greiner, 58 Ohio St. 67; Warren Co. v. Patterson, 56 Ill. 111; Labaree v. Carleton, 53 Me. 211; Martin v. Martin, 121 Mass. 548; Portland v. Tervillinger, 16 Or. 472; Raley v. Umatitia Co., 15 Or. 179; Columbia 1st M.E. Church v. Old Columbia, etc., 103 Pa. St. 613; Perry v. Scott, 51 Pa. St. 124; Armstrong v. Armstrong, 4 Bast. (Tenn.) 360; Carper v. Cook, 39 W. Va. 346; Keatley v. County Ct., 70 W. Va. 267; Kellgore v. Cabell Co. Ct., L.R.A. (N.S.) 1918B 692; Steuart v. Easton, 170 U.S. 383, 42 L.Ed. 1078.
The constitutional prohibition against taking property without compensation applies to land taken without the consent of the owner, not to that which is taken with his consent.
15 Cyc. 800, 801; Sec. 233, Constitution of Mississippi.
Eminent domain is not exclusive but additional method of attaining property for public use.
The Levee Board under its charter has plenary powers to do all things in its discretion or judgment necessary to protect its district from overflow; therefore, it may own land if it thinks necessary for that purpose.
Sections 1 and 3 of Acts Nov. 27, 1865, Compiled Levee Laws, pages 1 and 2; Constitution, sections 232 and 233; Ham v. Levee Board, 83 Miss. 552 and 554; Archer v. Levee Board, 158 Miss. 57; 1 Waterman on Corporations, page 627, sec. 164; Angell Ames on Corporations, sec. 187.
If the power to purchase or hold land is not specifically mentioned in charter, in order to carry out the purposes for which created, this right will be implied.
7 Am. Eng. Enc. (2 Ed.) 933 and 934, 995 and 996; 1 Waterman on Corporations, page 627, sec. 164; Angell Ames on Corporations, sec. 187; Chamberlain, etc., v. North Eastern R.R. Co., 25 L.R.A. 139, 142; Sheidley v. Lynch, 95 Mo. 487; Culpepper Co. v. Gorrell, 20 Gratt (Va.) 484.
There can be no abandonment where a sale is had, it shows no intent to abandon.
St. Peter's Church v. Bragaw, 56 S.E. 688, 10 L.R.A. (N.S.) 633.
Argued orally by W.T. Wynn and D.S. Strauss, for appellant, and by Ernest Kellner and W.H. Clements, for appellee.
Appellee filed his bill in the chancery court of Issaquena county against appellant to remove clouds from and establish his title to eighty-four acres of land, situated in that county, described in the bill, and to cancel the deed under which appellant claimed title to the land. There was a trial on bill, answer, and proofs, resulting in a decree in appellee's favor, from which decree appellant prosecutes this appeal.
The claim of title by both parties runs back to the same source, John A. and Ethel D. Moore. On the 25th day of July, 1929, John A. Moore and his wife, Ethel D. Moore, in consideration of five thousand dollars, conveyed the eighty-four acres of land involved to the board of Mississippi levee commissioners. The deed conveyed and warranted a fee-simple title. The conveying clause of the deed, leaving off the description of the property, is in this language: "We convey and warrant to the Board of Mississippi Levee Commissioners for levee purposes the following real property," etc. On July 2, 1933, John A. Moore having died, Ethel D. Moore, his widow, and their children, his sole heirs, executed a quitclaim deed to all their right, title, and interest in the eighty-four acres of land to the appellant. On the 24th day of July, 1933, the board of levee commissioners conveyed by warranty deed the eighty-four acres of land to appellee. At the time of this conveyance appellant was occupying a part of the land as lessee of Mrs. M.E. Fortner, who was a lessee of the levee commissioners.
Appellant claimed the land through his quitclaim deed from the heirs of Moore, while appellee claimed by virtue of his deed from the levee commissioners. The evidence showed that the levee commissioners acquired the land in good faith for levee purposes, but little, if any, use was made of it for those purposes, and that at the time of the conveyance by the levee commissioners to appellee it was no longer needed or used for levee purposes. Under the charter of the levee board (sections 232 and 233 of the Constitution, sections 1 and 3 of the Acts of November 27, 1865, Compiled Levee Laws, pp. 1 and 2), the board was expressly authorized to condemn land for levee purposes, and we are of opinion that it was also authorized by implication to acquire by conveyance at least as large an interest in lands for levee purposes as it could acquire by condemnation. We do not decide, because it is not necessary, whether the levee board had the right to acquire lands in fee. As above shown, the conveyance from the Moores to the levee board conveyed a fee-simple title. For the purpose of this decision we will assume that the levee board had no right to acquire lands for levee purposes in fee. We have, therefore, the levee board holding a fee-simple title to this land, and, when it was no longer needed for levee purposes, attempting to convey by warranty deed such title to appellee.
Under sections 403, 404, and 405, Code 1930, to maintain his bill to remove clouds and establish title to the land, it devolved upon appellee to show perfect title in himself. The question is whether or not appellee met these requirements of the law in that respect. Appellant's contention is that, when the land had ceased to be used for levee purposes, the title reverted to the Moore heirs, and he acquired it by quitclaim deed. While appellee contends that there was no reverter because the conveyance to the levee board provided for none, and furthermore if the levee board held the land in violation of its charter and the public policy of the state, as therein declared, such illegal holding cannot be questioned except by the state in a proceeding for that purpose.
Does the language in the conveyance from the Moores to the levee board, "for levee purposes," create a condition subsequent, resulting in a reversion of the title to the land to the Moores? On the authority of Thornton v. Natchez, 88 Miss. 1, 41 So. 498, 499, and Soria v. Harrison County, 96 Miss. 109, 50 So. 443, 444, this question must be answered in the negative. In the Thornton Case land was conveyed to the city of Natchez for a cemetery to be used for burial purposes alone "and for no other use or purposes whatsoever." The court held that failure of the city to use the land as a cemetery did not cause it to revert to the grantor or his heirs; that the title to land sold and conveyed for a designated use will not revert to the grantor or his heirs upon being put to another or different use, in the absence of express terms in the deed providing for reversion. In the Soria Case land was conveyed to the board of police of the county for the use of a courthouse and jail "to have and to hold the same . . . for the use of said county as aforesaid." The court held that, when the land had ceased to be used for those purposes, it did not revert; that that language in the deed did not create a condition subsequent, the breach of which would cause the land to revert; that there could be no reversion unless the grantor intended the deed should have that effect, and the deed so provided in plain terms; and that in construing the deed the language would be most strongly construed against the grantor. These decisions are supported by the authorities in other jurisdictions. 8 R.C.L., p. 1104, sec. 163.
There being no reversion, as long as the levee board held the title to the land, no one could question that title, except the state. Quitman County v. Stritze, 70 Miss. 320, 13 So. 36; Middleton v. Georgetown Mercantile Co., 117 Miss. 134, 77 So. 956. It was held in the Stritze Case that, where real estate, not necessary for any of the purposes for which a county is authorized to acquire land, is donated to the board of supervisors, the title of the county is not void but only voidable, and neither the grantor nor those claiming under him could question the county's right of ownership and disposition; that the state alone could question it. In the Middleton Case the court held that land acquired by a corporation in violation of chapter 162, Laws 1912, vested the title in the corporation, and that such unlawful acquisition of title could only be questioned and assailed by the state, through its proper officers, and not by the grantor in a deed of trust under which the corporation purchased at foreclosure sale. These decisions are in line with the decisions of the courts of other states. 7 R.C.L., p. 567, sec. 553.
Conceding, therefore, for the purpose of this decision that the levee board had no right to acquire and hold the fee-simple title to the land, the title did not revert to the Moores, the grantor, because the deed contained no condition subsequent providing therefor, and no one could question the title of the levee board except the state, and, the state having failed to do so while the title was held by the levee board, neither the state nor the Moores, nor the vendee of the Moores, have the right to question the title of the vendee of the levee board. Putting it differently, if the levee board had no right to acquire and hold the fee-simple title, nevertheless it did acquire and hold it, and, while it so held it, no one could question its right except the state, and, after it parted with the fee-simple title to appellee, the title was no longer held in violation of the laws and the public policy of the state. The state had no right to question appellee's title, because he acquired it from the levee board. Appellee was not violating the laws and the public policy of the state in holding title to the land, and the levee board had purged itself of any violation of the laws and public policy of the state in holding the land by conveying it to appellee.
Affirmed.