City of Greenwood v. Gwin

*531 Anderson, J. Appellees filed their bill in the chancery court of Leflore county against appellant .to enjoin the latter from the further prosecution of an eminent domain proceeding instituted under the Code chapter on “Eminent Domain, ’ ’ by which proceeding appellant, sought to condemn a joint right with appellees to construct and maintain a waterworks and sewerage system under the streets, alleys, and avenues of the Boulevard Addition to appellant. A. temporary injunction was issued in accordance with the prayer of the bill. Appellant answered the bill, and moved to dissolve the injunction on the pleadings and exhibits thereto, which motion was overruled. From that decree appellant prosecutes this appeal. This is the second appearance of this case here. Gwin et al. v. City of Greenwood, 150 Miss. 656, 115 So. 890. The case as developed up to the time of that appeal is fully set out in the opinion therein. It is only necessary, therefore, to state the case as made after it was sent back to the chancery court on remand of this court, but, in order to get the full significance of the decision now rendered, the former opinion should be considered. After its remand, appellant’s mayor and commissioners passed the following order: “This day came on for hearing the question of the extension of the water mains, laterals, sewerage system and the placing of fire plugs in the Boulevard. Addition to the city of Greenwood, Leflore county, Mississippi, by the city of Greenwood, and it appearing that S. L. Gwin has certain rights in the streets, alleys and avenues of said Boulevard addition, and that he claims the exclusive right to lay and maintain the said water pipes, mains, laterals and sewerage in the said streets, alleys and avenues of the said Boulevard Addition as is shown by note of reservation on map of the said Boulevard Addition, recorded in Book 2, Page 191, of the Records of Maps on file in the office of the clerk of the chancery court of *532 Leflore county, Mississippi; and it appearing to the council, after being duly advised in the premises that it is for the best interests of the city of Greenwood, and for the promotion of the public welfare that the said water mains, pipes and sewers be extended under and along the said streets, alleys and avenues of said Boulevard Addition to the city of Greenwood; and it appearing that the said S. L. Gwin, who claims the rights in the said avenue, alleys and streets, has heretofore made offers to convey to the city of Greenwood the right to lay and maintain said pipes, mains, laterals and sewers in the said streets, avenues and alleys, and that the consideration demanded for the' said right to lay and maintain water pipes, mains, laterals and sewers and the placing of fire plugs under and along the said streets, avenues and alleys in said Boulevard Addition, should be condemned by eminent domain proceedings for public purposes. “It is therefore ordered by the council of the city of Greenwood, composed of the mayor and commissioners, and being the governing body of said city of Greenwood, at this, its regular meeting, convened at the city hall, in the said city, its regular meeting place, that the city attorney be and he is hereby directed to condemn by eminent domain proceedings, the rights aforesaid, to the extent of allowing the said city to lay water pipes, mains, laterals and sewers under the surface of all of the said streets, alleys and avenues in the said Boulevard Addition so as to use the said right in the said streets, alleys and avenues jointly with the said S. L. Gwin, and to place fire plugs as hereinafter mentioned; and for this purpose of said condemnation of the easement under said streets, alleys and avenues; but such space so condemned to be filled by one or more pipes or sewers, to be laid in more than one place under the said streets, avenues and alleys in the said Boulevard Addition, but not so as to impair the usefulness in or about the carrying of water *533 or sewerage of such pipes now or hereafter to be laid under said streets, alleys and avenues by the said S. L. Gwin. “The city attorney is also directed to condemn the' right to establish, place and maintain fire plugs, one within ten feet of every corner of the streets, avenues and alleys of the said Boulevard Addition, if necessary, said plugs not to exceed two feet in diameter and to extend above the surface of said streets, alleys and avenues to a height not exceeding four feet, and in such place or places as will not interfere with the free passage or use of said streets, alleys and avenues, nor with the use and location of the fire plugs that are now, or may be hereafter established by the said S. L. Gwin in the said Boulevard addition to the city of Greenwood.” Appellant, proceeding under the Code chapter on “Eminent Domain,” sections 1854 to 1877, inclusive, Code 1906 (Hemingway’s 1927 Code, sections 1560 to 1583, inclusive), sought to carry out the order and to that end filed an application with‘the clerk of the circuit court, which follows: “That the said right and easement to be condemned-in accordance with the said order attached hereto as Exhibit “A” is a right and easement .under all of the said streets, boulevards, alleys and avenues, not to exceed an aggregate of ten feet in diameter under each boulevard, street, avenue and alley by the length of each of the said streets, boulevards, alleys and avenues, and the said space to be filled by one or more pipes or sewers to be laid in one or more places, the total space to be occupied by the said water pipes, mains, laterals, and sewers in any one street, avenue, boulevard and alley not to exceed ten feet in diameter, by the length of said boulevards, streets, avenues and alleys respectively, but not so as to impair the usefulness in or about the carrying and conveying of water or sewerage of such pipes, mains, laterals and sewers now laid or hereafter to be laid under *534 said streets, boulevards, alleys and avenues, by tbe said defendant, S. L. Gwin. “Also tbe right to establish, place and maintain fire plugs one within ten feet of each corner of the streets, boulevards, avenues and alleys of the said Boulevard Addition to North Greenwood, said plugs not to exceed two feet in diameter and to extend above the surface of said boulevards, streets, alleys and avenues to a height not exceeding’ four feet and to be established and maintained in such place or places as will not interefer with the free and convenient passage or use of said streets, boulevards, avenues and alleys, nor with the use and location of the fire plug’s that are now or may be hereafter erected and established by the said defendant, S. L. Gwin, in the said Boulevard Addition to North Greenwood. ‘ ‘ That the right and easement above described is necessary for the furnishing of adequate water supply and fire protection to the inhabitants of the said Boulevard Addition to North Greenwood as aforesaid.” The appellees had dedicated the streets, avenues, and alleys of appellant’s Boulevard Addition to public use, but in the dedication reserved to themselves “the exclusive right to construct, maintain, and operate water, sewerage, electric light, gas, and street car lines and systems in all the alleys, streets, avenues, and boulevards.” On the former appeal of this cause, the court held this reservation was valid, and that appellant could not take it from appellees except either by purchase or an eminent domain proceeding. As shown above, appellant did not undertake to condemn appellees’ entire right or easement to construct and maintain a waterworks and sewerage system in the streets, alleys, and avenues, but sought only to condemn a right equal to that of appellees, with the exception of a limitation set on the space to be occupied by its sewer *535 and water pipes of ten feet in diameter measured by the length of the streets, alleys, and avenues. Appellant’s position is that under the law it had the right to condemn only such a part of appellees’ easement as the public necessity required, while appellees contend that their easement is of such a nature and character as that it is not susceptible of being shared equally with appellant; that the taking of a part of their easement by appellant will have the effect of destroying its entire value; and therefore appellant should be driven to an eminent domain proceeding by which it will acquire, the exclusive right of establishing and maintaining a waterworks and sewerage system in the streets, alleys and avenues. This question was not before the court on the former appeal, and therefore could not be, and was not, decided. It was stated in the opinion that appellant could only acquire appellees’ exclusive easement by eminent domain proceeding or contract; but the court was not addressing itself to the question of whether appellant had the right to acquire less than the whole of appellees’ easement. Appellant concedes that appellees’ exclusive right is a property right, and that under section 17 of the Constitution could not be taken or damaged for public use except on due compensation being first made therefor. The question is whether appellant can take less than appellees’ whole right. Appellant’s mayor and commissioners declared in their order providing for the eminent domain proceeding that the public necessity only required the condemnation of an equal easement with that of appellees. Section 17 of the Constitution makes it a judicial question as to whether the contemplated use for which property is sought to be condemned to be a public one; but it does not authorize the court to determine the public necessity for the taking. Appellant’s mayor and commissioners alone could decide that question. Their decision, unless brought about by fraud or *536 abuse of discretion, is conclusive. Ham v. Board of Levy Commissioners, 83 Miss. 534, 35 So. 943. There is nothing in the record in this case showing or tending to show that their determination of the question of public necessity was the result of either fraud or an abuse of discretion. Property already devoted to public use may be again taken or damaged for public use. Illinois Cent. R. Co. v. State, 94 Miss. 759, 48 So. 561; Ewing v. Alabama & V. Ry. Co., 68 Miss. 551, 9 So. 295. Under section 17 of the Constitution appellant was without authority to condemn more than the public necessity required. It is only for public use that private property may be taken or damaged without the consent of the owner. If more than" is required for public use is taken, the excess is taken in violation of section 17 of the Constitution. Such excess would be taken for a private and not a public use. We are of the opinion, therefore, that appellant could not be driven beyond the public necessity in condemning appellees’ easement. Appellees argue that the result would be that the value of their easement will be entirely destroyed if appellant is given an equal easement with them. To sustain that contention they cite Vicksburg v. Vicksburg Waterworks Co., 202 U. S. 453, 26 S. Ct. 660, 50 L. Ed. 1102, 6 Ann. Cas. 253. It was said in that case that the competition of the city might be far more destructive than that of a private company; that the city mig’ht conduct its water and sewer systems without regard to profit or gain, as it had'p°wer 1° resort to public taxation to make up the loss.- It seems to us that a complete answer to that contention is that, under section 17 of the Constitution and section 1865, Code 1906 (Hemingway’s 1927 Code, section 1571), appellees would be entitled to compensation not only for the part of their easement actually taken as specified in the eminent domain application, but, in addition, damages resulting to them as a consequence *537 of the taking — in other words, consequential damages. Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; Yazoo & M. V. R. R. Co. v. Lefoldt, 87 Miss. 317, 39 So. 459; Brahan v. Meridian Home Telephone Co., 97 Miss. 326, 5 So. 485. Appellees contend that the description of the right or easement which appellant sought to condemn by the eminent domain proceeding, as set out in the application therefor, is void because of indefiniteness. It is described in the application as a right and easement under all the streets, boulevards, alleys, and avenues, not to exceed ten feet in diameter by their length, the space to be filled by one or more pipes or sewers to be laid in one or more places, and to be done in. such a manner as not to interfere with the carrying and conveying of water and sewerage in the pipes, mains, and laterals laid or to be laid by appellees, and in addition to establish and maintain fire plugs within ten feet of the corners of the streets, boulevards, avenues, and alleys, the fire plugs not to exceed two feet in diameter and to extend above the surface of the ground to a height not exceeding four feet, and to be located and maintained in such a manner as would not interfere with the free and convenient use of the streets, boulevards, avenues, and alleys, nor with fire plugs erected or to be erected by appellees. A copy of the map of the Boulevard Addition from the records of the office of the chancery clerk of Leflore county was made an exhibit to the application. We are unable to see how the rights sought to be condemned could have* been more accurately described. In the nature of things it would have been impracticable, if not impossible, for the application to have been more definite. To illustrate: Under section 3324, Code 1906 (Hemingway’s 1927 Code, section 6760), a municipality is impowered to grant certain public utility franchises, among them, the right to install in the municipality a waterworks and sewerage system with a limitation of twenty-five years on the *538 grant, and that the right shall not be exclusive. A municipality grants to a corporation a franchise to install and maintain under its streets and alleys a waterworks and sewerage system. The paramount use of the streets and alleys is for public travel. The system must be installed in a manner not to unreasonably interfere with such use, and, furthermore, in a.manner not to unreasonably trench upon the rights of any other public utility corporation theretofore granted a franchise by the municipality. Its water and sewer pipes and fire plugs must be constructed and maintained in the usual and customary manner, but, as to the exactness of their location, that cannot be determined in advance. The construction and maintenance of the system is under the supervision of the municipality. Later another corporation is granted a franchise by the municipality to establish and maintain a waterworks and sewerage system under all of its streets and alleys. In the latter grant, as in the first, it is unnecessary to provide the exact location of the water and sewer pipes and fire plugs, but there goes with the latter grant the obligation that the corporation receiving the franchise in the construction and maintenance-of the system shall not interfere unreasonably with the waterworks and sewerage system theretofore constructed aild being maintained by the former. In municipalities, new streets and alleys are opened up from time to time and old streets and alleys are sometimes abandoned; grades of streets and alleys are raised and lowered — all of which necessitate changes by waterworks and sewerage companies in the location of their water and sewer pipes and fire plugs. Such changes cannot be provided for in advance in the grant of a franchise by a municipality to install a waterworks and sewerage system. If the description of a public utility easement is sufficiently definite where the municipality is the grantor, certainly the same description is definite enough where the municipality is the grantee either by purchase or condemnation. *539 We find no merit in the other grounds upon which appellees ask that the decree of the court appealed from should be affirmed; and we do not consider them of sufficient gravity to call for a discussion by the court. Reversed, the injunction dissolved, and appellees’ bill dismissed. Reversed and bill dismissed. Smith, C. J., disqualified, took no part.