The appellant, the State Highway Commission, filed its application in the County Court of Harrison County for the condemnation of certain land belonging to appellant Dantzler for the construction of a public highway known as Beach Development, Section B, U.S. Highway No. 90. Appellant thereupon made application under Section 1510 of the Code of 1930 to the circuit court for a writ of prohibition restraining the county court and the Highway Commission from further proceeding in the prosecution of said condemnation proceeding. The Highway Commission appeared *Page 728 and demurred to the petition; the demurrer was sustained; and the petition dismissed, from which judgment this appeal is prosecuted. Section 1510 is in this language: "The legal remedy by way of prohibition is made applicable for the purposes of testing the questions (1) whether the applicant seeking to exercise the right of eminent domain is, in character, such a corporation, association, district or other legal entity as is entitled to the right, and/or (2) whether there is a public necessity for the taking of the particular property or a part thereof which it is proposed to condemn. All the provisions in the chapter on Quo Warranto, so far as may be, shall apply to the procedure under this section; and the petition for the writ may be filed by any defendant in the condemnation proceedings, and the hearing shall be in vacation when the public interest is such as to require an expeditious trial. Upon the filing of a petition under this section the circuit judge shall issue a temporary order staying the hearing in the court of eminent domain until the cause can be tried under this section by the circuit judge, and if on the hearing last aforesaid the petition be sustained a permanent writ of prohibition shall issue. An appeal may be taken to the Supreme Court as in other cases, but if the judgment of the circuit judge be to deny the petition, the appeal aforesaid shall not operate as a supersedeas, and the court of eminent domain may nevertheless proceed."
This statute is the exclusive authority for a writ of prohibition restraining a condemnation proceeding, except in cases of a want of jurisdiction in the eminent domain court. Barnes v. McLeod, 165 Miss. 437, 140 So. 740; Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518. That jurisdiction is unquestioned in this case.
Pending the appeal to this Court, the eminent domain court (the county court) proceeded to a final judgment condemning the right-of-way sought, and in addition, the Highway Commission constructed the highway thereon, *Page 729 which is now used by the traveling public. These facts are brought to the attention of this Court by proof, which is unquestioned, by the appellant. Along with such proof, the Highway Commission made a motion to dismiss the appeal upon the ground that the questions involved are moot.
Under the statute, if the petition is sustained, a permanent writ of prohibition issues, and an appeal may be taken to the Supreme Court as in other cases, "but if the judgment of the circuit judge be to deny the petition, the appeal aforesaid shall not operate as a supersedeas, and the court of eminent domain may nevertheless proceed." In other words, the landowner's petition for a writ of prohibition, which has been denied by the circuit judge, avails him nothing on appeal unless the Supreme Court reverses the judgment appealed from before final judgment in the eminent domain court. In such a case, if the landowner has a remedy, it is elsewhere — not by prohibition. In providing the remedy of prohibition, the statute guards in the public interest, as near as practicable, against delay in condemnation proceedings.
The motion to dismiss appeal sustained.
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