Summary
In Willmut Gas Oil Company v. Covington County, 221 Miss. 613, 71 So.2d 184 (1954), sixteenth section lands were held to be public although they were held in trust for the benefit of the schools.
Summary of this case from State v. Michigan Wisconsin Pipeline Co.Opinion
No. 38859.
March 15, 1954.
1. Public utilities — statutes — public lands — sixteenth section school lands — pipelines across.
In statutes granting to public utilities right to build and construct oil or gas pipelines and electric power lines along or across highways, railroads, canals, and "public lands," quoted words as used in statutes include sixteenth section school lands. Secs. 2780, 4070, Code 1942.
2. Public utilities — same — same — same — same — legislative purpose.
The Legislature in granting such rights to public utilities had in mind other somewhat similar statutes dealing with other types of public utilities. Secs. 2780, 4066, et seq., 4070, 5525, 7723, 7737, 7837, Code 1942.
3. Sixteenth sections — lessees — tenancy for years — estates.
Lessees of sixteenth section school lands owned only a tenancy for years, with such right, title, and use as went with that kind of an estate.
4. Public utilities — sixteenth sections — pipelines across — Board of Supervisors — regulation by.
Right of public utility to construct gas pipeline across sixteenth section school lands was subject to regulation by Board of Supervisors of county and before construction of such pipeline, public utility should have first obtained an order of Board dealing with manner of construction, maintenance, and location of pipeline. Sec. 2780, Code 1942.
5. Public utilities — same — same — damages — to lessee's estate — to State.
Under applicable state, if, in construction of such pipeline across sixteenth section school land, or in its use, damages are caused either to estate of lessee or the State as trustee, public utility is responsible to the lessee or the State, acting through its subdivision, the county, for such damages. Sec. 2780, Code 1942.
6. Sixteenth sections — uncompensated grant or easement across — violates constitutional provisions.
An uncompensated grant by State to public utility of easement or right-of-way across sixteenth section school land for gas pipeline is in violation of constitutional provisions prohibiting donation of land belonging to or under control of the State, and the further constitutional provision that the Legislature shall provide that sixteenth section lands shall not be sold. Secs. 95, 211, Constitution 1890; Sec. 2780, Code 1942.
7. Statutes — presumptions — Legislature intended to comply with organic law.
The Legislature presumably intended to comply with the organic law in enacting Section 2780 of the Code of 1942, and the statute should be given a reasonable interpretation which is consistent with that presumed intent and which would permit upholding the constitutionality of the statute. Sec. 2780, Code 1942.
8. Public utilities — statutes — "damages for any use" — construction of.
Phrase "damages for any use" as used in Section 2780 of the Code of 1942 includes compensation for reasonable rental or use of right-of-way. Sec. 2780, Code 1942.
9. Public utilities — sixteenth sections — pipelines across — damages — reasonable rental — injunctive relief denied.
In suit by county against public utilities and others to cancel alleged clouds on title of county to sixteenth section school lands, to confirm the State's title as trustee, to recover damages for construction of natural gas pipeline across the lands and a reasonable rental for use of right-of-way, and to enjoin further use, county was entitled to recover reasonable rentals from public utilities which used pipelines, but was not entitled to injunctive relief. Sec. 2780, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the chancery court of Covington County; NEVILLE PATTERSON, Chancellor.
Currie Currie; Hannah, Simrall Aultman, Hattiesburg; Green, Green Cheney, Jackson, for appellant Willmut Gas Oil Company.
I. Willmut, having entered upon February 20, 1934, through acquisition at judicial foreclosure of a constructed pipeline and without destruction of timber, operated the same until August 20, 1943, when it sold to United, cannot be held liable for such occupation when the lease to Malachia Odom did not expire until March 3, 1945, at which time and not before, this land became unleased so that thereover to the extent the law permitted the Board of Supervisors might again exercise such powers as were to them conferred but none other. Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840; Board of Suprs. Covington County v. State Highway Comm., 188 Miss. 274, 194 So. 743; Brewer v. Browning, 115 Miss. 358, 76 So. 267; Burkley v. Jefferson County, 213 Miss. 836, 58 So.2d 22; Childress v. State, 188 Miss. 573, 195 So. 583; City of Picayune v. Mississippi Power Co., 197 F.2d 444; Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; Fernwood Lbr. Co. v. Rowley, 110 Miss. 821, 71 So. 3; Forest Product Mfg. Co. v. Buckley, 107 Miss. 897, 66 So. 279; Foster v. Jefferson County, 202 Miss. 629, 32 So.2d 126; Gully v. Willmut Gas Oil Co., 174 Miss. 794, 165 So. 620; Hood v. Foster, 194 Miss. 812, 13 So.2d 652; Humble Oil Rfg. Co. v. State, 206 Miss. 847, 41 So.2d 26; Illinois Cent. R.R. Co. v. LeBlanc, 74 Miss. 650, 21 So. 760; Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247, 60 Am. St. 516, 36 L.R.A. 798; Jones v. Gulf Rfg. Co., 202 Miss. 705, 32 So.2d 435; Kennington-Saenger Theatres v. State, 196 Miss. 841, 18 So.2d 483; Lewis v. Myer, 116 Miss. 454, 77 So. 297; McNeese v. Renner, 197 Miss. 203, 21 So.2d 7; Moss Point Lbr. Co. v. Harrison County, 89 Miss. 448, 42 So. 290; New York Life Ins. Co. v. Nessossis, 189 Miss. 414, 196 So. 766; Nicholson v. Bd. of Miss. Levee Comrs., 203 Miss. 71, 33 So.2d 604; Ohio Life Ins. Tr. Co. v. Debolt, 16 How. 416, 14 L.Ed. 997; Pace v. State, 191 Miss. 780, 4 So.2d 270; Pike County v. Bilbo, 198 Miss. 775, 23 So.2d 530; Pilgrim v. Neshoba County, 206 Miss. 703, 40 So.2d 598; Southern Bus Lines v. Amalgamated Assn., 205 Miss. 354, 38 So.2d 765; State ex rel. v. School Bd. of Quitman County, 181 Miss. 818, 181 So. 313; State v. Dear, 209 Miss. 268, 46 So.2d 110, 47 So.2d 150, 55 So.2d 374; State v. Wisconsin Lbr. Co., 97 Miss. 571, 54 So. 247; Stokley v. State, 149 Miss. 435, 115 So. 563; Texas Gulf Producing Co. v. Griffith, 218 Miss. 109, 65 So.2d 447; Washington County v. Bd. of Miss. Levee Comrs., 171 Miss. 80, 156 So. 872; Sec. 184, Constitution 1890; Art. I Chap. 42 Sec. 32 p. 610, Art. XII Chap. 9, Hutchinson's Code of 1848; Secs. 6762-3, Code 1930; Secs. 6600-6601, Code 1942; Chap. 318, Laws 1926; 73 C.J.S., Public Lands, Sec. 94 p. 733; Vol. II, Blackstone's Commentaries, pp. 16-8; Broom's Legal Maxims, p. 466; Coke, Litt. 4(a).
II. Code Section 1508, Code of 1930, which grants to public utilities requisite rights-of-way across public lands does not contravene Section 95 of the Constitution of Mississippi or any other section thereof.
A. Plenary police power remains in Legislature to grant rights-of-way to public utilities, terminable when the Legislature saw fit. Alabama V. Ry. Co. v. Cumberland Tel. Tel. Co., 88 Miss. 438, 41 So. 258; Allen v. City of Kosciusko, 207 Miss. 343, 42 So.2d 388; Bank of Philadelphia v. Posey, supra; Bernard v. Jackson County, 216 Miss. 387, 62 So.2d 576; Board of Suprs. Lee County v. Payne, 175 Miss. 12, 166 So. 332; Briscoe v. Buzbee, 163 Miss. 574, 143 So. 887; Burke v. Southern P.R. Co., 234 U.S. 669, 58 L.Ed. 1527; California Co. v. State, 200 Miss. 824, 27 So.2d 542, 28 So.2d 120; City of Canton v. Canton Cotton Warehouse Co., 84 Miss. 268, 36 So. 266; City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; City of Memphis v. Postal Tel. Cable Co., 139 Fed. 707; City of Tulsa v. Southwestern Bell Tel. Co., 75 F.2d 343; Coleman v. Truckline Gas Co., 218 Miss. 285, 63 So.2d 73; Craig v. Mercy Hospital-Street Memorial, 209 Miss. 427, 47 So.2d 867; Craig v. North Miss. Community Hosp., 206 Miss. 11, 39 So.2d 523; Craig v. Winston County, 175 Miss. 24, 166 So. 402; Donnaher v. State, 16 Miss. 649, 8 Sm. M. 649; Frederic v. Merchants Marine Bank, 200 Miss. 755, 28 So.2d 843; Gandy v. Public Service Corp., 163 Miss. 187, 140 So. 687; Gulf Rfg. Co. v. Stanford, 202 Miss. 602, 30 So.2d 516; Gulf Rfg. Co. v. Stone, 197 Miss. 713, 21 So.2d 19; Gulf Rfg. Co. v. Terry, 163 Miss. 869, 142 So. 457; Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 36 L.Ed. 1018; Kennington-Saenger Theatres v. State, supra; Koonce v. Bd. of Suprs. of Grenada County, 202 Miss. 473, 32 So.2d 264 (sugg. of error overruled, 32 So.2d 456); Lambert v. State, 211 Miss. 129, 51 So.2d 201; Lanier v. Booth, 50 Miss. 410; McCullen v. State, 217 Miss. 256, 63 So.2d 856; Meridian v. Western Union Tel. Co., 72 Miss. 910, 18 So. 84; Metzger v. Sessions, 198 Miss. 892, 23 So.2d 746; Mississippi State Highway Comm. v. Yellow Creek Drainage Dist., 181 Miss. 651, 180 So. 749; Moore v. Swamp Dredging Co., 125 Miss. 842, 88 So. 522; Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Ohio Life Ins. Tr. Co. v. Debolt, supra; Pace v. State, supra; Payne v. Central Pac. Ry. Co., 255 U.S. 228, 65 L.Ed. 598; Russell Inv. Corp. v. Russell, 182 Miss. 385, 182 So. 102; State v. Dear, supra; State v. Southern Pine Co., 205 Miss. 80, 38 So.2d 442; Stigall v. Sharkey County, 213 Miss. 798, 58 So.2d 5; Street v. City of Columbus, 75 Miss. 822, 23 So. 773; Swendig v. Washington Water Power Co., 265 U.S. 322, 68 L.Ed. 1036; The Indiana Cent. Ry. Co. v. State of Indiana, 3 Ind. 421; Village of Ridgeland v. Madison County, 154 Miss. 613, 122 So. 753; Western Union Tel. Co. v. L. N.R.R. Co., 107 Miss. 626, 65 So. 650 (affirmed, 250 U.S. 363, 63 L.Ed. 1032, 39 S.Ct. 513); Yazoo M.V.R.R. Co. v. Hughes, 139 Miss. 177, 103 So. 805; Secs. 33, 104, 190, 192, Constitution 1890; Secs. 854, 2563-4, Code 1892; Sec. 925, Code 1906; Chap. 1, Laws 1886; 14 Am. Jur., Sec. 255 p. 635; 24 Am. Jur., Gifts, p. 730; 42 Am. Jur., Public Lands, Sec. 46 p. 824; Annos. 39 A.L.R. 1084; 175 A.L.R. 1207; 16 C.J.S. 1526; 28 C.J.S. 53; Vol. XIII, Mississippi Digest, Key No. 225-3/4.
B. As to the power of Covington County to sue herein for a grant of a right-of-way for a public utility. Board of Suprs. Covington County v. State Highway Comm., supra; Illinois Cent. R.R. Co. v. LeBlanc, supra; Jefferson-Davis County v. James-Sumrall Lbr. Co., 94 Miss. 530, 49 So. 611; Moss Point Lbr. Co. v. Harrison County, supra; Street v. City of Columbus, supra; Swendig v. Washington Water Power Co., supra.
C. As a public utility, Willmut was entitled to know in advance that which was requisite to completion of its utility project. Richardson v. Midwest Rfg. Co., 39 Wyo. 58, 270 P. 154.
D. See also the following: Alcorn v. Hamer, 38 Miss. 653; Dantzler v. Miss. State Highway Comm., 190 Miss. 137, 199 So. 367; Nashville Water Co., Inc. v. Dunlap, 176 Tenn. 79; Whitworth v. Miss. State Highway Comm., 203 Miss. 94, 33 So.2d 612; Secs. 90(r), 211, Constitution 1890; 78 C.J.S. 479; Broom's Legal Maxims, p. 9.
III. Section 1508 of Code of 1942 does not violate Sections 66, 81, 90(u)(r), 211, 233, and 288 of the Constitution of Mississippi. Board of Suprs. Covington County v. State Highway Comm., supra; California Co. v. State, supra; Dantzler Lumber Co. v. State, supra; Lewis v. Myer, supra; Nashville Water Co., Inc. v. Dunlap, supra; Secs. 66, 81, 90(r)(u), 211, 233, 288, Constitution 1890.
IV. Laches. Aetna Ins. Co. v. Robertson, 131 Miss. 343, 94 So. 7 (sugg. of error, 95 So. 137); Arrington v. Masonite Corp., 213 Miss. 817, 58 So.2d 10; Comans v. Tapley, 101 Miss. 203, 67 So. 567; Marks v. Toney, 196 Miss. 572, 18 So.2d 452; Stanley v. Stanley, 201 Miss. 545, 29 So.2d 641; Vanlandingham v. Meridian Creek Drainage Dist., 191 Miss. 345, 2 So.2d 591.
Avery Putnam, Jackson; Brunini, Everett, Grantham Quin, Vicksburg; W.O. Crain, Shreveport, Louisiana, for appellant United Gas Pipe Line Company.
I. The State of Mississippi, by Chapter 291, of the General Laws of 1922 (now Section 2780, Code of 1942), lawfully granted complete authority for the construction of the natural gas transmission pipeline across the public land in question.
A. When the Legislature met in 1922, no natural gas available in this State for fuel, heating or cooking. Alabama V. Ry. Co. v. Cumberland Tel. Tel. Co., 88 Miss. 438, 41 So. 258; Sec. 278, Constitution 1890; Art. 45, Code 1857; Sec. 2430, Code 1871; Sec. 854, Code 1892; Sec. 925, Code 1906; Chap. 179, Laws 1926; Chap. 358, Laws 1950.
B. It is not open to question that the words "public lands" as used in Section 2780, Code of 1942, and other similar statutes, cover and include sixteenth section school lands. Ashcraft v. Bd. of Suprs. Hinds County, 204 Miss. 65, 36 So.2d 820; Gandy v. Public Service Corp., 163 Miss. 187, 140 So. 687; Graham v. Goodwin, 170 Miss. 896, 156 So. 513; Hollandale Ice Co. v. Bd. of Suprs. Washington County, 171 Miss. 515, 157 So. 689; Jackson County v. Meaut, 185 Miss. 235, 189 So. 819; Murphy v. State, 181 P.2d 336; Pacific Power Co. v. State, 162 P. 642; Quitman County v. Turner, 196 Miss. 746, 18 So.2d 122; Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; State Highway Comm. v. McGowan, Dist. Atty. ex rel. Hinds County, 198 Miss. 853, 24 So.2d 330; State v. Cumberland Tel. Tel. Co., 27 So. 795; Thornhill v. Ford, 213 Miss. 49, 56 So.2d 23; United States v. Bisel, 19 P. 251; United States v. Blendaur, 128 Fed. 910; United States v. Holiday, 24 F. Supp. 112; Union Pacific v. Douglas, 31 Fed. 540; Wilson v. Y. M.V.R.R. Co., 192 Miss. 424, 6 So.2d 313; Sec. 5525, Code 1942.
C. Statutes granting a mere license or easement to cross public lands to pipeline and electric companies (Section 2780, Code of 1942), railroads (Section 7737), REA (Section 5525), hydroelectric companies (Section 2778), and telegraph and telephone companies (Section 7837), were contemplated by Section 95, of the Mississippi Constitution, and in no way violate it. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 115 A.L.R. 1436 (appeal dismissed, 303 U.S. 627, 82 L.Ed. 1088, 58 S.Ct. 766); Allen v. City of Kosciusko, 207 Miss. 343, 42 So.2d 388; Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407; City of Canton v. Canton Cotton Warehouse Co., 84 Miss. 290, 36 So. 266; Covington County v. State Highway Comm., 188 Miss. 274, 194 So. 743; Craig v. Mercy Hospital-Street Memorial, 208 Miss. 439, 45 So.2d 809; Farrar v. State, 191 Miss. 1, 2 So.2d 146; Gandy v. Public Service Corp., supra; Gully v. Harrison County, 173 Miss. 402, 162 So. 166; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Henry v. Bd. of Suprs. Newton County, 203 Miss. 780, 34 So.2d 232; Hughes v. Gully, 170 Miss. 425, 153 So. 528; Kitrell v. O'Flynn, 203 Miss. 164, 33 So.2d 628; McCullen v. State, 217 Miss. 256, 63 So.2d 864; Meridian v. Western Union Tel. Co., 72 Miss. 910, 18 So. 84; Moore v. Grillis, 205 Miss. 865, 39 So.2d 505, 10 A.L.R. 2d 1425; Russell v. Federal Land Bank, 180 Miss. 55, 176 So. 737; St. Louis S.F.R.R. Co. v. Benton County, 132 Miss. 325, 96 So. 689; State v. Edwards, 93 Miss. 704, 46 So. 964; State v. Henry, 87 Miss. 125, 40 So. 152; State v. Jones, 106 Miss. 52, 64 So. pp. 241, 469; State v. Southern Pine Co., 205 Miss. 80, 38 So.2d 442; Stepp v. State, 202 Miss. 725, 32 So.2d 447; Tucker Printing Co. v. Bd. of Suprs. Attala County, 171 Miss. 608, 158 So. 336; Village of Ridgeland v. Madison County, 154 Miss. 613, 122 So. 753; Washington County v. Bd. of Miss. Levee Comrs., 171 Miss. 80, 156 So. 872; White v. Illinois Cent. R.R. Co., 97 Miss. 91, 55 So. 593; White v. Miller, 160 Miss. 734, 133 So. 146; Secs. 57, 211, Constitution 1890; Secs. 2778, 2780, 7737, 7837, Code 1942; Chap. 179, Laws 1926; Chap. 358, Laws 1950.
D. Covington County (and its Board of Supervisors) has no power or authority in connection with construction and maintenance of pipelines, and other lines, across lands of the State, except that specifically conferred by statute; this is also the settled law as to all powers of the Board. American Oil Co. v. Marion County, 187 Miss. 148, 292 So. 296; Smith v. Young, 199 Miss. 658, 24 So.2d 745; Washington County v. Riverside Drainage Dist., 159 Miss. 102, 131 So. 644; Sec. 6597, Code 1942.
II. If Covington County had authority to execute a pipeline easement, which is denied, then, under the doctrine of presumption of lost grant, the right to maintain and operate the pipeline has been perfected. Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Gandy v. Public Service Corp., supra; Hewling v. Blake, 110 Miss. 225, 77 So. 247; Itawamba County v. Sheffield, 195 Miss. 359, 13 So.2d 649; Jones v. Gulf Rfg. Co., 202 Miss. 705, 32 So.2d 435, 34 So.2d 735; Leavenworth v. Hunter, 150 Miss. 245, 116 So. 593; Scarborough v. Native Lumber Co., 118 Miss. 138, 79 So. 84.
Hugh M. McIntosh, John K. Keyes, Collins, for appellee.
I. The Malachia Odom lease granted no right to such lessee or his assigns to convey a pipeline right-of-way across sixteenth section lands. Any such attempted conveyance of an easement and right-of-way for a pipeline, by Malachia Odom, or his successors in title, operated only as to damages to such lessee's interest in the surface of said lands, and could not convey any right or easement to construct or operate a natural gas pipeline underneath the surface of the said lands, nor could such attempted conveyance release the grantees thereunder, the Pipeline Company, from liability for damages to the reversionary interest of the State in said lands. City Council of Greenville v. White, 194 Miss. 145, 11 So.2d 816; Moss Point Lbr. Co. v. Bd. of Suprs. Harrison County, 89 Miss. 448, 42 So. 290; Pace v. State, 191 Miss. 780, 4 So.2d 270; 17 Am. Jur., Sec. 23 p. 938; 32 Am. Jur., Sec. 78.
II. Section 1508 of the Mississippi Code of 1930 (Section 2780, Mississippi Code of 1942, Annotated), grants to pipeline companies the right of eminent domain. Said section does not grant a right-of-way for pipeline purposes to such companies, over and across sixteenth section lands, without compensation being paid therefor, for so to do would contravene the Constitution of the State of Mississippi. Board of Suprs. Covington County v. State Highway Comm., 188 Miss. 274, 194 So. 743; Bridgforth v. Middleton, 186 Miss. 185, 186 So. 837; Gandy v. Public Service Corp., 163 Miss. 187, 140 So. 687; Koonce v. Bd. of Suprs. Grenada County, 202 Miss. 473, 32 So.2d 264; State v. Dear, 209 Miss. 268, 46 So.2d 100; Washington County v. Bd. of Miss. Levee Comrs., 171 Miss. 80, 156 So. 872; Yazoo M.V.R.R. Co. v. Bolivar County, 146 Miss. 30, 111 So. 581; Yazoo M.V.R.R. Co. v. Sunflower County, 125 Miss. 92, 87 So. 417; Secs. 95, 211, Constitution 1890; Secs. 2780, 5525, Code 1942.
III. Covington County is vested with both statutory and constitutional authority to bring and prosecute this action against the appellants. Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107; Carroll County v. Jones, 71 Miss. 947, 15 So. 106; Jefferson-Davis County v. James-Sumrall Lbr. Co., 94 Miss. 530, 49 So. 611; Jones v. Madison County, 72 Miss. 777, 18 So. 87; Warren County v. Dabney, 81 Miss. 273, 32 So. 908; Secs. 6594, 6598, Code 1942.
IV. Neither Covington County, nor the State of Mississippi, is barred by laches from bringing this suit. Bailey v. Sayle, 206 Miss. 757, 40 So.2d 618; Comans v. Tapley, 101 Miss. 203, 57 So. 567, Ann. Cas. 1914B, 307; Cox v. American Freehold Land Mtge. Co. of London, 88 Miss. 88, 40 So. 739; Dampier v. Polk, 214 Miss. 65, 58 So.2d 44; Gulf Rfg. Co. v. Travis, 210 Miss. 336, 30 So.2d 398; Hill v. Nash, 73 Miss. 849, 19 So. 707; Houston v. National Mut. Bldg. Loan Assn., 80 Miss. 31, 31 So. 540; Hudson v. Belzoni Equipment Co., 203 Miss. 212, 33 So.2d 796; Mobile O.R.R. Co. v. Swain, 164 Miss. 825, 145 So. 627; Smith v. Smith, 211 Miss. 481, 52 So.2d 1; Griffith's Miss. Chancery Practice, Sec. 360.
V. Appellant not entitled, under the facts in this case, to know in advance cost of right-of-way across sixteenth section land.
Wright, Overstreet Kuykendall; Wells, Thomas Wells, Jackson; Eaton Cottrell, Gulfport, Amici Curiae.
This suit was brought in the Chancery Court of Covington County, by Covington County, appellee herein, against appellants Willmut Gas and Oil Company, hereinafter referred to as Willmut, and United Gas Pipeline Company, hereinafter referred to as United, and also against other defendants who have not appealed. The purpose of the action was to cancel certain alleged clouds on the title to sixteenth section school lands asserted by the defendants, to confirm the State's title as trustee, and to recover damages against Willmut and United resulting from the construction of a natural gas pipeline across the sixteenth section, and a reasonable rental for the use of the right-of-way, and to enjoin its further use.
The parties stipulated the relevant facts. For purposes of presenting the issues involved, they may be summarized as follows: The title to the sixteenth section in question, located in Covington County, Mississippi, is vested in the State of Mississippi as trustee for the use and benefit of the schools in the township. None of it has been sold and no one has established title to this section under the twenty-five year adverse possession statute, Code Sec. 6596. On March 3, 1846, the county, through the proper authorities, leased the entire section to Malachia Odom for a term of 99 years. This lease remained in effect until March 3, 1945, its expiration date.
In 1932 Public Service Corporation of Mississippi, hereinafter referred to as Public Service, constructed an eight-inch pipeline for the transmission and distribution of natural gas as a public utility across this section. This pipeline has been used continuously until the present date as a facility of a public utility distributing natural gas. Public Service purchased right-of-way deeds from all persons who were transferees and assignees of Odom under the 99-year lease. Since 1932 natural gas has been continuously transmitted through this pipeline and is available to municipalities in the adjoining area. From 1932 until February 20, 1934, Public Service continued to operate this gas pipeline, and appellee in this suit is not claiming any damages for Public Service's actions during this period. Public Service was adjudicated a bankrupt, and on February 20, 1934 its assets were sold to appellant, Willmut. At that time Willmut took possession of this gas pipeline across the sixteenth section in question, and used and operated it for the stated purposes until August 20, 1943, when Willmut conveyed it to United. Since that date, United has continued to use and operate it.
It was stipulated that "no trees thereon have been cut, clearing having been completed by Public Service." Neither the state nor appellee county has received any cash consideration for such right-of-way. The only consideration paid was that paid by Public Service to the persons claiming as assignees from the 99-year lessee, Odom. These persons executed right-of-way deeds to Public Service. United owns a certificate of public convenience and necessity issued by the Federal Power Commission. When the 99-year lease expired on March 3, 1945, Covington County granted agricultural leases for 15-year periods to various parties who were made defendants to this bill; none of them filed answers, and subsequently pro confesso decrees were taken against them.
It was further stipulated that solely for the purpose of this suit, the sum of $30 was a reasonable amount for the use of this sixteenth section for pipeline purposes for each year, and a proportionate amount for each fractional year, but that the board of supervisors of the county has not made any order as to the amount of the rental. In Covington County, the pipeline crosses five of the forty-acre governmental units in this sixteenth section. None of the land is used for any purpose except for agriculture, and "the reasonable cost per annum for a right-of-way across the said land is $10 per forty, or fractional forty, if Covington County has the lawful authority to exact any cash compensation whatsoever." Public Service, Willmut, and United have each regularly paid annual ad valorem assessments on the pipeline, except where the same was exempt from taxation, which taxes have been collected by the county. When Public Service constructed the pipeline, no demand for rental was made by appellee or by the State, nor was any demand made upon Willmut or United until October 11, 1951, when this suit was filed. During this period, Public Service, Willmut and United have in good faith claimed a right-of-way from the state across these lands under the conveyances from assignees of the 99-year lessee, and under Miss. Code 1942, Sec. 2780, which is discussed subsequently. It was stipulated that the case could be tried on the pleadings, exhibits, and the agreed statement of facts. No testimony was taken.
The final decree confirmed the title of the State as trustee for the township schools to the sixteenth section, as against all of the defendants, subject to designated unexpired leasehold interests in the section. The decree awarded the county a judgment for $285 against Willmut for the use of the land for right-of-way purposes for a natural gas pipeline for the period from February 20, 1934, to August 20, 1943, and a judgment against United for $275 for the use of this section for the same purposes for the period from August 20, 1943, to date. The trial court further enjoined United "from in anywise using any portion of the said sixteenth section for right-of-way for the operation and maintenance" of its pipeline now located over and across these lands, and enjoined the operation and maintenance of the pipeline by United over the premises. It allowed United and Willmut an appeal with supersedeas.
Appellants contend that the chancery court erred in its final decree because Code of 1942, Sec. 2780, was a self-executing conveyance to them and to their predecessor Public Service of a right-of-way across this sixteenth section without the requirement of any compensation; and that the consideration for which the State by Sec. 2780 made this grant of a right-of-way was that appellants made available to the State and its citizens natural gas and its accompanying benefits. Code Sec. 2780, as amended by Miss. Laws of 1950, Chap. 358, provides:
"All companies, associations of persons, municipalities, associations of municipalities, or natural gas districts, incorporated or organized for the purpose of building or constructing pipe lines and appliances for the conveying and distribution of oil and 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, and to build and construct the said pipe lines and appliances along or across highways, waters, railroads, canals, and public lands, above or below grounds, but not in a manner to be dangerous to persons or property, nor to interfere with the common use of such roads, waters, railroads, canals and public lands. The board of supervisors of any county through which any such line may pass, shall have the power to regulate, within their respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county and all such companies, associations of persons, municipalities, associations of municipalities or natural gas districts shall be responsible in damages for any injury caused by such construction or use thereof." (Emphasis added.)
(Hn 1) This statute granted to Public Service and to appellants the right to build and construct a pipeline across "public lands." And "public lands" includes sixteenth section school lands. Chap. 11, Title 17, Vol. 3 of the 1942 Code, is entitled "public lands." And Sec. 4070 in effect includes sixteenth section lands in the category of public lands. We think that the legislature in the use of the phrase "public lands" in this statute intended the same to include sixteenth section lands. Compare U.S. v. Bisel, 19 P. 251 (Mont. 1888); Union Pacific Ry. Co. v. Douglas Co., 31 Fed. 540 (U.S.C.C., Neb. 1887); State v. Cumberland Tel. Tel. Co., 27 So. 795 (La. 1899).
(Hn 2) The purpose which the legislature evidently had in granting to public utilities such as appellants the right to construct its pipelines across sixteenth section lands is consistent with other analogous legislative grants. Code Sec. 5525 provides that all associations and corporations formed under the Rural Electrification Act are authorized to construct electric lines over unimproved sixteenth sections, and that this shall be without payment to the State for that easement. By Code Secs. 7723 and 7737 railroads are given the power to enter upon, acquire, and use a right-of-way across any lands belonging to the State. Code Sec. 7837 provides that all telephone and telegraph companies authorized to erect their posts and lines across any of the public highways, streets, or waters, "and also through any of the public lands." Hodges, Tax Collector of City of Meridian v. Western Union Telegraph Company, 72 Miss. 910, 18 So. 84 (1895), held that a telegraph company could use the city streets without cash compensation being paid. City of Canton v. Canton Cotton Warehouse Company, 84 Miss. 268, 36 So. 266 (1904), applied the above cited statute to a railroad company crossing city streets. The Meridian case held that such a right is a revocable license and a mere permission to enter the streets and use them. Manifestly, in granting to public utilities the right to enter and cross public lands including sixteenth sections, the legislature, in enacting Sec. 2780, had in mind these other somewhat similar statutes dealing with other types of public utilities.
Gandy v. Public Service Corporation of Miss., 163 Miss. 187, 140 So. 687 (1932), held that appellants' predecessor in title, the appellee in that case, was such a corporation as was empowered to exercise the right of eminent domain granted it by Sec. 2780 over privately owned lands. It further held that "the plain purpose of the statute is to encourage such enterprises"; and that the supplying of gas to the public for heating and power purposes is such a public convenience as justified the granting to Public Service of the right of eminent domain. The court said that the statute as enacted at that time erroneously omitted the conjunctive "and" before the phrase "to build and construct" and that it granted the right to condemn private property. Inferentially Gandy indicated, as we now hold, that the statute made a grant of the right to cross public lands, subject to certain restrictions. Miss. Power Co. v. Sellers, 160 Miss. 512, 133 So. 594 (1931), held that Code of 1930, Sec. 1506, being Code of 1942, Sec. 2778, applied to Mississippi Power Company, and that which is presently Sec. 2780 had no application, ". . . but if it had, this record does not disclose that the board of supervisors and the power company had not lawfully discharged their duties with respect thereto, and under well-known rules we would assume that the law had been complied with, and the board of supervisors had designated and regulated the poles and the manner of erecting these poles and wires, . . ."
Hence Sec. 2780 grants to the designated public utilities a right to cross public lands, including sixteenth sections. However, it also imposes certain important restrictions and limitations upon that right. The construction of the pipeline must not be in a manner dangerous to persons or property, nor such as to interfere with the common use of public lands. And the last sentence of that section provides: "The board of supervisors of any county through which any such line may pass, shall have the power to regulate, within their respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county and all such companies, associations of persons, municipalities, associations of municipalities or natural gas districts shall be responsible in damages for any injury caused by such construction or use thereof."
The first clause of this provision gives the board of supervisors the power and the duty to regulate the manner in which the pipeline shall be constructed and maintained, and in this respect the above quoted statement from Miss. Power Company v. Sellers is relevant. The succeeding phrase, "on and above the highways and bridges of the county," does not, we think, exclude the existence of that power of the board of supervisors as to "public lands" precedently referred to in the statute.
(Hn 3) Permits or licenses to cross the surface, leasehold estates of the 99-year lessees were properly and necessarily acquired from those lessees. But they owned only a tenancy for years, with such right, title, and use as went with that kind of an estate. Bernard v. Board of Supervisors of Jackson County, 62 So.2d 576 (Miss. 1953); Moss Point Lumber Company v. Board of Supervisors of Harrison County, 89 Miss. 448, 513, 42 So. 290, 296, 300 (1906). (Hn 4) Under Sec. 2780 Public Service had the right to construct the pipeline, but that right was subject to regulation by the board of supervisors as to the manner in which it should be constructed and maintained, including its location. Public Service should first have obtained an order of the board of supervisors dealing with the manner of construction, maintenance, and the location of the pipeline. But since no claim is here made against Public Service, its failure to do that is not now in issue.
(Hn 5) Sec. 2780 places other restrictions and limitations upon the construction and maintenance of pipelines across sixteenth section and other public lands. The company owning the same "shall be responsible in damages for any injury caused by such construction or use thereof." In other words, if in the construction of the pipeline or in its use damages are caused either to the lessee's estate or to the owner's and landlord's estate of the State as trustee, the company is responsible to the lessee or State acting through its subdivision the county for such damages. But no issue of damages in the construction of the pipeline arises here. Public Service, which built it, became bankrupt in 1934. And it is stipulated that no trees have been cut. The clearing of the right-of-way was completed by Public Service. It is further stipulated that at this time appellee is not claiming any damages for the construction of the pipeline by Public Service. Hence the issue of damages for that item is not now involved.
The last quoted clause in the statute also provides "that the company owning the pipeline shall be responsible in damages for any . . . use thereof." Miss. Constitution 1890, Sec. 211, as it existed at the time of the construction of the pipeline, and as it is now under the 1942 amendment, states that the legislature "shall provide that the sixteenth Section lands reserved for the support of township schools shall not be sold . . ." Constitution Sec. 95 prohibits the donation of lands belonging to or under the control of the state. (Hn 6) An uncompensated grant by the State of an easement or right-of-way across a sixteenth section would be in violation of these requirements, in Constitution Secs. 211 and 95. (Hn 7) And we cannot assume that the legislature intended by the enactment of Sec. 2780 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. (Hn 8) We think that the provision in Sec. 2780 that the pipeline company shall be responsible "in damages for any . . . use thereof" contemplates and means that the phrase "damages for any . . . use" includes compensation for the reasonable rental or use of a right-of-way. Compare 11 Words and Phrases (1953 Supp.), p. 11; Del Commune v. Bussen, 179 S.W.2d 744, 748 (Mo. App. 1944); 43 Words and Phrases (1953 Supp.) p. 126. And this is the meaning of such provision irrespective of the grammatical intervention of the phrase "for any injury caused by . . ." The parties to the present suit stipulated the amount of an annual, reasonable rental for the lands. The final decree gave appellee a judgment against appellants for that stipulated rental, and that decree was in accord, we think, with the provision in Sec. 2780 that appellants shall be responsible in damages for the use of the right-of-way.
Appellants rely on such cases as Washington County v. Board of Levee Commissioners, 171 Miss. 80, 156 So. 872 (1934), and Covington County v. State Highway Commission, 188 Miss. 274, 194 So. 743 (1940), which upheld the right of the State itself to impose an additional public use upon sixteenth section lands without additional compensation. Compare Crary v. State Highway Commission, 68 So.2d 468 (1953). Although appellants are public service corporations within the meaning of that term so as to authorize the legislature to grant them the right of eminent domain over private lands, since they serve a substantial public convenience, Gandy v. Public Service Corporation, supra, they are not governmental subdivisions which come within the limited rule of the Washington and Covington County cases.
Somewhat similar to the instant case is Yazoo M.V.R.R. Co. v. Sunflower Co., 125 Miss. 92, 87 So. 417 (1921). Sunflower County sued the railroad to cancel its claim to fee title of a strip of land across a sixteenth section upon which the railroad had its right-of-way, and to recover a reasonable rental for that strip. It was held that the grant of the right-of-way to the railroad by an 1882 statute did not go into effect until the actual location of the right-of-way, and that, since this did not occur until after the 1890 Constitution went into effect, Constitution Sec. 211 prohibited a grant to the railroad of a fee simple title to the strip. When the railroad constructed its line, it obtained from the county a lease for seven years. All it could acquire was the leasehold right for that limited time, and on the date of the suit, this leasehold right had expired. The Court said that the railroad having continued in possession after expiration of its lease, it was liable to the county for "the reasonable value for the use of the right-of-way for the years subsequent to the expiration of the lease, and the chancellor's finding as to the value of the use of the right-of-way is supported by the evidence and his judgment will be affirmed." In affirming the decree allowing the county a reasonable rental for the sixteenth section right-of-way, the Court said in effect that this was necessary because of the provision of Constitution Secs. 211 and 95.
In Yazoo and M.V.R.R. Co. v. Bolivar County, 146 Miss. 30, 111 So. 581 (1927), the county sued in equity to cancel the claim asserted by the railroad to its right-of-way over a sixteenth section, and for a writ of possession. In 1883, the board of supervisors had made an order granting appellant's predecessors a right-of-way over the school lands. The appellant in its answer pleaded that the effect of the board's order was to vest in it a 99-year leasehold estate, and that the county had the power to so lease the land involved. The Court agreed substantially with appellant's position, and reversed and rendered a decree for appellant. Although the board's order did not technically constitute a lease of the right-of-way to appellant for 99 years, the Court thought that it was at least a claim of right under which appellant had possessed the land adversely for more than forty years, and that the twenty-five year adverse possessory statute applied. Hence the Court dismissed the bill, and fixed the expiration of the railroad's leasehold for its right-of-way as 1982, 99 years after its institution. In other words, the Court, in the absence of a statute such as Sec. 2780, held that the board's order was in effect a grant of a 99-year leasehold for the railroad's right-of-way.
(Hn 9) In summary, we hold that Sec. 2780 granted to Public Service and its successors, the appellants, a right-of-way only, being a revocable easement, over public lands, including the sixteenth section in question. However, this grant is subject to the restrictions stated in that statute, and among them is the requirement that the companies owning the pipeline, the appellants, are responsible in damages for any use of the right-of-way. That responsibility, in order to comply with Constitution Secs. 95 and 211 means that the pipeline companies must pay a consideration, either at one time or in installments of rent, for their right-of-way. In the present case the parties stipulated an annual rental up to the date of the suit. The final decree was based on that stipulation, and we affirm the decree adjudicating that appellants are indebted to appellee for such reasonable rental. In view of our interpretation of the statute, however, the decree is in error to the extent that it enjoins appellants from operating and maintaining their pipeline, and that part of the final decree is vacated. Appellee is entitled to no injunction.
We confine our decision to that necessary to be decided. We consider only the application of Sec. 2780 and Miss. Constitution Secs. 95 and 211 to a pipeline right-of-way over sixteenth section lands. We do not consider any question with reference to the application of Sec. 2780 and these constitutional sections to public lands other than school lands.
Affirmed as modified.
McGehee, C.J., and Hall, Lee, Kyle, Holmes and Ethridge, JJ., concur. Gillespie, J., took no part.
I concur in the majority opinion except that I do not think the county has any right to collect rent, or compensation, for use of the easement. Section 2780 does not, by its terms, contemplate such payment in my opinion. It imposes upon public utilities the obligation to pay "damages for any injury caused by such construction or use thereof." Only "damages" can be collected and damage is not a word applicable to liability for rent. It has reference to destruction of, or injury to, fences, houses, improvements, etc., occasioned by construction of lines by public utilities. Indeed, if annual rent is to be paid, then the easement is converted into a tenancy from year to year.
Section 95, Mississippi Constitution of 1890, prohibiting donations of public lands by the legislature, does not require money payment consideration to comply with that section. Inducement to enterprises, serving the public, to locate within this State is sufficient consideration. Hodges, City Tax Collector, v. Western Union Telegraph Company, 72 Miss. 910; City of Canton v. Canton Cotton Warehouse Company, 84 Miss. 268. Making available to the people of the State telephone, telegraph, electric power and natural gas service is a consideration more valuable than mere pittance for rent of the right-of-way, or easement. The legislature, the guardian of the public policy of the State, so considered in my opinion. At least that branch of the government thought the availability of these forces to the people, and the consequent tax revenues which such utilities have to pay the State and the various taxing subdivisions thereof, constituted sufficient consideration for grant of the power conferred by said Section 2780 and other like statutes.
An important practical question is involved here. Such a question, I realize, cannot change legal rights, but it is proper to weigh results in trying to determine the intent of the legislature and the effect of its enactments. That question is this: The result of this decision, in my view, will create chaos and utter confusion in this State. All of these utilities acted upon Section 2780 and like statutes in construction of railroads, telegraph, telephone and power lines and in the laying of gas and oil lines. None of the statutes expressly require payment of rent to the State for an easement over public lands. Indeed, Section 5525, Mississippi Code 1942, conferring power upon REA to construct electric power lines across public lands, expressly provides this may be done "without payment to the State for said easement." The other statutes, in effect, do the same thing by not expressly requiring money payment for such right. No utility paid such money rent. The records disclose that the State now owns approximately 710,000 acres of school and lieu lands and 950,000 acres of other public lands, a total of over one and a half million acres of public lands. When many of the utility lines were constructed the State owned considerably more than the stated amount of non-school lands. These public service lines, both above and under ground, now traverse these public lands in thousands of instances. A number of the municipalities of the State, such as Natchez and Columbus, for illustration, are located upon sixteenth section lands. The utility lines are constructed on the streets and across parks throughout these municipalities. If appellant must pay annual rent in the case at bar, it is not seen why such rent cannot be collected from all of these utilities for easements over public lands back to 1890. Suits to do just that will be innumerable, unless the legislature has the power, and exercises it, to prevent such suits from being prosecuted.