Summary
In Whitworth v. Mississippi State Highway Commission, 203 Miss. 94, 107, 33 So. 2d 612, 613 (1948), this Court said that, "[w]hen a highway is abandoned as such, there is a reversion [of the easement to the property owner.]"
Summary of this case from Tippah Cnty. v. LeroseOpinion
No. 36481.
January 12, 1948. ON SUGGESTION OF ERROR.
1. EMINENT DOMAIN.
The statutes authorizing Highway Commission to obtain and pay for rights of way and to condemn or acquire by gift or purchase lands containing road building materials and lands necessary for safety and convenience of traffic contemplate acquisition of rights of way to the end that a highway system may be constructed and maintained, and does not authorize the Commission to divest a land owner of interests which Commission cannot in turn exploit (Code 1942, secs. 8012 et seq., 8023, 8038).
2. EMINENT DOMAIN.
Even in the absence of statutory definition of estate which Highway Commission is empowered to acquire, no more property may be taken than the public use requires (Code 1942, sec. 8014 et seq.).
3. HIGHWAYS.
The rights acquired by Highway Commission through purchase for highway purposes are not greater than those acquired by condemnation, which is Commission's resort to same end, after negotiations for purchase have failed, and Commission can acquire no more than an easement (Code 1942, sec. 8014 et seq.).
4. EMINENT DOMAIN. Highways.
The fact that when a highway is abandoned as such there is a reversion is indicative that Highway Commission acquires no more than an easement whether by prescription, eminent domain or purchase.
5. HIGHWAYS.
Where Highway Commission was empowered to acquire no more than an easement for highway purposes, the fact that amount paid for right of way may have approximated value of fee is not indicative that a fee was acquired, since damage to owner, in practical effect, was approximately same whether fee or an easement was taken.
6. ESTOPPEL.
The State, having raised point of Highway Commission's authority to take a fee by Commission's bill to remove clouds from title to right of way, could not assert that defendant was without right to raise point that Commission exceeded its authority.
7. HIGHWAYS.
The Highway Commission having authority only to acquire an easement for highway purposes, its bill to remove clouds on a claimed fee title to right of way should have been dismissed (Code 1942, secs. 8014 et seq., 8023, 8038).
8. HIGHWAYS.
The estate acquired by Highway Commission in purchase or gift of land for highway purposes is measured by language of statutes, not language of deeds (Code 1942, secs. 8014 et seq., 8023, 8038).
L.A. SMITH, SR., and GRIFFITH, JJ., dissenting.
APPEAL from the Chancery Court of Madison County.
Ray, Spivey Cain, of Canton, and Watkins Eager, of Jackson, for appellants.
The deeds from Whitworth to the Highway Commission conveyed only a right of way or easement for highway purposes and not the fee simple title to the land to be occupied by the highway.
Richardson v. Moore, 198 Miss. 741, 750, 22 So.2d 494; Lott v. Payne et al., 82 Miss. 218, 33 So. 948; Campbell v. Covington County, 161 Miss. 374, 378, 137 So. 111, 112; Dantzler v. Mississippi State Highway Commission, 190 Miss. 137, 148, 199 So. 367; Trahan v. State Highway Commission, 169 Miss. 732, 754, 151 So. 178; Wilkinson County v. State Highway Commission, 191 Miss. 750, 756, 4 So.2d 298; Lanier v. Booth, 50 Miss. 410, 413, 414; State Highway Commission v. Powell et al., 184 Miss. 266, 185 So. 589; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 608, 184 So. 296; Keokuk County v. Reinier et al. (Iowa), 288 N.W. 676; Texas Pacific R. Co. v. Martin, 123 Tex. 383, 71 S.W.2d 867; Rock Island, A. L.R. Co. v. Gourney et al., 205 La. 125, 17 So.2d 8; Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208; City of Knoxville v. Phillips et al. (Tenn.), 36 S.W.2d 434; Carter Oil Co. v. Myers et al., 105 F.2d 259; Robinson v. Miss. R. Co., 59 Vt. 426, 10 A. 522; Gladys City Oil Co. v. Right of Way Oil Co. (Tex.), 137 S.W. 171; Atlanta, B. A.R. Co. v. Coffee County, 152 Ga. 432, 110 S.E. 214; Hodges v. Owings (Md.), 13 A.2d 338; Alabama Great Southern R. Co. v. McWhorter (Ala.), 80 So. 839; Code of 1942, Sec. 8023; 51 C.J. 39; 62 C.J. 947-948; 35 C.J.S. 289; 19 Words Phrases 449, highway; Black's Law Dictionary (3 Ed.), p. 1561, right-of-way; Webster's New International Dictionary (2 Ed.), right-of-way.
If the deeds from Whitworth to the State Highway Commission conveyed the title in fee simple, appellants are entitled, under their cross-bill, to a reformation to limit them to the conveyance of an easement. The record conclusively shows that the Highway Commission intended to acquire and did acquire an easement only.
Town of Magee v. Mallett, 178 Miss. 629, 174 So. 246; Mississippi Power Co. v. Sellers, 160 Miss. 512, 133 So. 594; Trotter v. Frank P. Gates Co., 162 Miss. 569, 139 So. 843; Scott County v. Dubois, 158 Miss. 245, 130 So. 106; Brotherhood of Railroad Trainmen v. Agnew, 170 Miss. 604, 155 So. 205; Code of 1930, Sec. 4998; 59 C.J. 171; 31 C.J.S. 830.
Even if the Highway Commission had intended to acquire title in fee simple, it is nevertheless bound by the mistake and legal fraud of its right of way agents.
Brown v. Coker, 129 Miss. 411, 92 So. 585; Barataria Canning Co. v. Ott, 88 Miss. 771, 41 So. 378; Prest v. Farmington, 104 A. 521, 2 A.L.R. 1391; Ackerlind v. United States, 240 U.S. 531, 36 S.Ct. 438, 60 L.Ed. 785; 53 C.J. 987; 45 Am. Jur. 615. Greek L. Rice, Attorney General, by James T. Kendall and John Kuykendall, Jr., Assistant Attorneys General, and Heidelberg Roberts, of Hattiesburg, for appellee.
The deeds purported to convey and did convey a fee simple title.
Garner v. Garner, 117 Miss. 694, 78 So. 623; Dunbar v. Aldrich, 79 Miss. 698, 31 So. 341; Hart v. Gardner, 74 Miss. 153, 20 So. 877; Connecticut Life Ins. Co. v. Planters Savings Bank, 182 Miss. 463, 181 So. 724; Whelan v. Johnston, 192 Miss. 673, 6 So.2d 300; Robinson v. Payne, 58 Miss. 690; Miller v. Tunica County, 67 Miss. 651, 7 So. 429; Hall v. Eastman, Gardiner Co., 89 Miss. 588, 43 So. 2; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296; Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892; Frederic v. Merchants Marine Bank, 200 Miss. 755, 28 So.2d 843; Nicholson v. Myers, 170 Miss. 441, 154 So. 282; Thorton v. Natchez, 88 Miss. 1, 41 So. 498; Soria v. Harrison County, 96 Miss. 109, 50 So. 443; Federal Land Bank v. Cooper, 190 Miss. 490, 200 So. 729; Lott v. Payne, 82 Miss. 218, 33 So. 948; State Highway Commission v. Powell, 184 Miss. 266, 185 So. 589; Brightwell v. International Great Northern R. Co. (Tex.), 49 S.W.2d 457, 84 A.L.R. 265; Radetsky v. Jorgensen, 70 Colo. 423, 202 P. 175; Midstate Oil Co. v. Ocean Shore R. Co., 93 Cal.App. 704, 270 P. 216; Johnson v. Valdosta, etc., R. Co., 169 Ga. 559, 150 S.E. 845; Carr v. Miller, 105 Neb. 623, 181 N.W. 557; Killgore v. County Court, 80 W. Va. 283, 92 S.E. 562; Rowell et al. v. Gulf M.O.R. Co. (Ala.), 28 So.2d 209; Alabama Great Southern R. Co. v. McWhorter (Ala.), 80 So. 839; Cooper v. Selig, 48 Cal.App. 228, 191 P. 983; Las Posas Water Co. v. Ventura County, 97 Cal.App. 296, 275 P. 817; Mt. Olive Stave Co. v. Handford, 112 Ark. 522, 166 S.W. 532; Vail v. Long Island R. Co., 106 N.Y. 283, 12 N.E. 607; Stanberry v. Wallace (Tex.), 45 S.W.2d 198; Schultz v. Grove, 70 Pa. Super. 494; Green v. Kunkel (Tex.), 183 S.W.2d 505; West Texas Utilities Co. v. Lee (Tex.), 26 S.W.2d 455; United States v. Case Library, 98 F.2d 512; Kynerd v. Hulen, 5 F.2d 160; Stevens v. Galveston, H. S.A.R. Co. (Tex.), 212 S.W.2d 639; Ark. Improvement Co. v. Kansas City So. R. Co., 189 La. 921, 181 So. 445; Carter Oil Co. v. Myers, 105 F.2d 259; Keokuk County v. Reinier (Iowa), 288 N.W. 676; Watkins v. Central Railway Co., 123 Iowa 390, 98 N.W. 910; Texas Pacific R. Co. v. Martin, 123 Tex. 383, 71 S.W.2d 867; Rock Island A. L.R. Co. v. Gourney, 205 La. 125, 17 So.2d 8; Texas Pacific R. Co. v. Ellerbe, 199 La. 489, 6 So.2d 556; Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208; City of Knoxville v. Phillips (Tenn.), 26 S.W.2d 434; Robinson v. Miss. R. Co., 59 Vt. 426, 10 A. 522; Hunter v. Murfee, 126 Ala. 123, 28 So. 7; Gladys City Oil Co. v. Right of Way Oil Co. (Tex.), 137 S.W. 171; Hodges v. Owings (Md.), 13 A.2d 338; Magnolia Pet. Co. v. West, 274 Ill. 516, 30 N.E.2d 24; Jones Island Realty Co. v. Middendorf, 191 La. 456, 185 So. 881; Bradley v. Crane (N.Y.), 94 N.E. 358; Savannah v. Barnes, 148 Ga. 317, 96 S.E. 625; Forgeus v. Santa Cruz County, 24 Cal.App. 193, 140 P. 1092; Mueller v. Schier, 189 Wis. 70, 205 N.W. 912; Right of Way Oil Co. v. Gladys City Oil Co., 106 Tex. 94, 157 S.W. 738; Joy v. City of St. Louis, 138 U.S. 1, 11 S.Ct. 243, 34 L.Ed. 857; John T. Moore Planting Co. v. Morgan's La. T.R. S.S. Co., 126 La. 841, 53 So. 23; Moakley v. L.A. Pac. R. Co., 137 Cal. 421, 34 P.2d 218; Atlanta, B. A.R. Co. v. Coffee County, 152 Ga. 432, 110 S.E. 214; Thompson v. Orange Rockland Elec. Co, 254 N.Y. 336, 173 N.E. 336; Johnson v. Valdosta, M. W.R. Co., 169 Ga. 559, 150 S.E. 845; Vail v. Long Island R. Co., 106 N.Y. 283, 12 N.E. 607; Ballard v. L. N.R. Co., 9 Ky. Law. Rep. 523, 5 S.W. 484; Code of 1942, Secs. 833, 852; Note, 132 A.L.R. 149; 26 C.J.S., Deeds, Sec. 162.
No mutual mistake was shown and, therefore, the evidence of an alleged oral agreement or representation is inadmissible for the purpose of varying or contradicting the clear and express provisions of the deeds under consideration.
Hart v. Gardner, supra; Stone et al. v. Grenada Grocery Co. et al., 180 Miss. 566, 178 So. 107; Garner v. Garner, supra; Blaylock v. Lonn, 157 Miss. 783, 128 So. 555; Lowery et al. v. Williams, 143 Miss. 661, 109 So. 670; Slush et al. v. Foxworth, 146 Miss. 360, 111 So. 841; Ballard v. Brown, 93 Miss. 104, 46 So. 137; Thompson v. Bryant, 75 Miss. 12, 21 So. 655; State Highway Department v. Duckworth, 178 Miss. 35, 172 So. 148; Code of 1942, Sec. 852.
See Sumter Lumber Co. v. Skipper, supra; Gaston v. Mitchell, supra; Harrington v. Harrington, 2 How. (3 Miss.) 701; Dunbar v. Aldrich, supra; Barksdale v. Barksdale, 92 Miss. 166, 45 So. 615; Code of 1942, Sec. 833.
See, also, Federal Land Bank v. Cooper, 190 Miss. 490, 200 So. 729.
Appellee has the power under the statute to acquire a fee simple title by purchase.
State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345; Mid-South Paving Co. v. State Highway Commission, 197 Miss. 751, 20 So.2d 834; Wunderlich v. State Highway Commission, 183 Miss. 428, 184 So. 456; Trahan v. State Highway Commission, 169 Miss. 732, 151 So. 178; Wilkinson County v. State Highway Commission, 191 Miss. 750, 4 So.2d 298; Campbell v. Covington County, 161 Miss. 374, 137 So. 111; Dantzler v. Mississippi State Highway Commission, 190 Miss. 137, 199 So. 367; Whelan v. Johnston, 192 Miss. 673, 6 So.2d 300; Thompson v. O. R. Electric Co., 254 N.Y. 336, 173 N.E. 224; Code of 1942, Secs. 8023, 8038(b), 8059; Constitution of 1890, Sec. 170.
Even though appellee is without authority to acquire the fee, the deeds are not void but are voidable only and appellants have no standing to assail appellee's title.
Middleton v. Georgetown Mercantile Co., 117 Miss. 134, 77 So. 956; Quitman County v. Stritze, 70 Miss. 320, 13 So. 36; Wall v. Darby, 132 Miss. 93, 95 So. 791; Federal Land Bank v. Cooper, supra; Nicholson v. Myers, 170 Miss. 441, 154 So. 282; Kerfoot v. Farmers Merchants Bank, 218 U.S. 281, 54 L.Ed. 1042; Regier v. Ameranda Pet. Corp., 139 Kan. 177, 30 P.2d 136.
No mutual mistake was shown and appellants were not entitled to a reformation. There are several indispensable facts which must be proved by a party seeking a reformation of a written instrument. It must be proved (1) that there was a mistake; (2) it must be a mistake of fact or its equivalent; (3) the mistake must be mutual to all parties; and (4) the evidence to reform an instrument must prove a mutual mistake beyond a reasonable doubt.
Barataria Canning Co. v. Ott, 88 Miss. 771, 41 So. 378; Smith v. Muse, 138 Miss. 518, 103 So. 356; Baker v. Hardy, 194 Miss. 662, 11 So.2d 803; Yarborough v. Thompson, 3 Smedes M. 291; Hall v. State, 69 Miss. 529, 540, 13 So. 38; Everett v. Hubbard, 199 Miss. 857, 25 So.2d 768; Crofton v. New South Bldg. Loan Ass'n., 77 Miss. 166, 26 So. 362; Whitney Central National Bank v. First National Bank, 158 Miss. 93, 130 So. 99; Wall v. Wall, 177 Miss. 743, 171 So. 675; State Highway Commission v. Collins, 198 Miss. 499, 23 So.2d 543; State Highway Department v. Duckworth, 178 Miss. 35, 172 So. 148; Harrington v. Harrington, supra; Jones v. Jones, 88 Miss. 784, 41 So. 373; Rogers v. Clayton, 149 Miss. 47, 115 So. 106; Watson v. Owen, 142 Miss. 676, 107 So. 865; Smith v. Stevens, 184 Okla. 4, 84 P.2d 3; Griffith's Mississippi Chancery Practice, Sec. 589; Pomeroy's Equity Jurisprudence, Secs. 842, 843.
Persons of sound mind, except those under twenty-one years of age, and those who have been overreached, must abide the consequences of their solemn, deliberate acts; equity cannot require cancellation and rescission.
Cresswell v. Cresswell, 164 Miss. 871, 140 So. 521; American Oil Co. v. Williamson, 154 Miss. 441, 122 So. 488; Caulk v. Burt, 112 Miss. 660, 73 So. 618; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763.
Greek L. Rice, Attorney General, by James T. Kendall and John Kuykendall, Jr., Assistant Attorneys General, for appellee, on suggestion of error.
There is no showing of mutuality of mistake.
Rogers v. Clayton, 149 Miss. 47, 115 So. 106; Whitney Central National Bank v. First National Bank, 158 Miss. 93, 130 So. 99; Wall v. Wall, 177 Miss. 743, 171 So. 675; Hall v. State, 69 Miss. 529, 540, 13 So. 38; State Highway Commission v. Collins, 198 Miss. 499, 23 So.2d 543; St. Paul Fire Marine Ins. Co. v. McQuaid, 114 Miss. 430, 75 So. 255; Lamar v. Lane et al., 170 Miss. 260, 154 So. 709; Pearl Realty Co. v. State Highway Commission, 170 Miss. 103, 154 So. 292.
The mistake, if any, was one of law.
Barataria Canning Co. v. Ott, 88 Miss. 771, 41 So. 378; Hall v. State, supra; Baker v. Hardy, 194 Miss. 662, 11 So.2d 803; Pomeroy's Equity Jurisprudence, Sec. 843.
A decision upon the legal effect of the instruments is necessary to the disposition of this case.
Argued orally by Pat H. Eager, for appellants, and by Jas. T. Kendall, for appellee.
ON SUGGESTION OF ERROR.
Appellees state in their brief on suggestion of error, "For obvious reasons, the appellant herein might well be justified in conceiving that the judgment of the Court is much less favorable than a decree holding the instruments to convey an easement alone, and it would appear that the appellants as well as the appellee are entitled to a determination of this question." This suggestion is favorably received.
It is urged that the Statute provides for acquisition of "lands" by other means, to-wit by gift or otherwise. Code 1942, Sections 8023, 8038. Yet, in all events it must be "necessary for a state highway system" or for the purpose of obtaining "road building materials" or for the promotion of "the safety and convenience of traffic."
Code 1942, Sections 8023, 8038, authorizes 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." 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."
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. It would attribute unwisdom to the Legislature to construe the power delegated to the Commission as to divest a landowner of interests which the Commission in turn could not exploit. Were the language of the grant of power in Sections 8023 and 8038 ambiguous, well known principles would be invoked to construe them in the light of the evident purpose of the Legislature. If there were no definition of the estate which the Commission is empowered to acquire, no more property may be taken than the public use requires. Nicholson v. Board of Mississippi Levee Commissioners et al., 203 Miss. 71, 33 So.2d 604, this day decided. "When an easement will satisfy the purpose of the grant the power to condemn the fee will not be included in the grant unless expressly provided." 18 Am. Jur., Eminent Domain, Section 115.
We are unable to detect any difference between the rights acquired by the Commission through purchase for highway purposes and those acquired by condemnation, which is the Commission's resort to the same end after negotiations for purchase have failed. We have held that rights acquired by eminent domain differ not at all from those obtained by prescription, and these are in both cases only an easement. Campbell v. Covington County, 161 Miss. 374, 137 So. 111. When a highway is abandoned as such, there is a revision. See Trahan v. State Highway Commission, 169 Miss. 732, 733, 151 So. 178; Wilkinson County v. State Highway Commission, 191 Miss. 750, 4 So.2d 298.
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. That the amount paid therefor may approximate the value of the fee is not here important for as stated in Nicholson v. Board of Mississippi Levee Commissioners, supra, at the time the deeds were executed "the damage to the owner, in practical effect, was approximately the same whether the fee or an easement was taken." We do not find Dantzler v. Mississippi State Highway Commission, 190 Miss. 137, 199 So. 367, in disharmony with these conclusions. In the cited case, the condemnation sought was for a right of way or easement. The landowner contended that the estate taken must be the entire land. The narrow point was whether there may be an expropriation of an easement with certain "conditions, reservations and limitations" favorable to the owner, thereby limiting the value of the consideration to be paid. Campbell v. Covington County, supra, was there cited with approval.
We notice, finally, the appellee's contention that appellant is without right to raise the point that the Commission exceeded its authority, and that only the State can complain. The principle invoked is unquestioned in cases where parties other than the State itself seek to challenge corporate acts as ultra vires. But, here we are met with a case where the complaint is by the State through its Commission. By its bill to remove clouds, it raised the point. Appellants demurred. We conclude that the cases cited to support this contention are not applicable. Yet, see Southern Realty Company v. Tchula Cooperative Stores, 114 Miss. 309, 75 So. 121. The bill ought to have been dismissed.
Our former opinion, which found sufficient support in the merits of defendant's cross-bill, did not advance further into this fundamental inquiry. We are now of the opinion that, as suggested by appellee, this is a proper occasion to examine, as respects highway construction, the extent of the powers of the Commission in the light of the purposes of the Statute. The estate acquired by appellee is measured by the language, not of the deeds, but of the Statutes. Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208, 1 L.R.A. (N.S.) 806, 114 Am. St. Rep. 509, 6 Ann. Cas. 239; Chouteau v. Missouri Pac. R. Company, 122 Mo. 375, 22 S.W. 458, 30 S.W. 299; Lewis, Eminent Domain (3rd Ed.), Section 468.
For the reasons above stated, our former opinion is withdrawn, and there being no necessity to reform the deeds from appellants to the appellee, our former judgment herein will be set aside and bill of complaint dismissed.
So ordered.
Smith, L.A., Sr., and Griffith, JJ., concur in the withdrawal of the former opinion, but dissent from the one above substituted in its stead.
Roberds, J., took no part in the decision of this case.
CONCURRING OPINION
I concur in the opinion and judgment now rendered; also in the withdrawal of the former opinion herein for the reason that the judgment now rendered makes the reformation of the deed from the appellants to the appellee unnecessary.