Whitefort v. Homochitto Lumber Co.

Ethridge, J., delivered the opinion of the court. The appellant owned the Northeast quarter of section 24, township 4, range 3 East, and the appellee owned tim — 22 — ber and. lands adjacent to this land lying both to the north, east, and south of said land, but does not own the timber or any right of way oyer the Northeast quarter of Southwest quarter,, section 24, township 4, range 3. The appellee desired to construct a logging road over the land of the appellant, and applied to her agent on the land for permission so to do. This agent informed the appellee that he had no right to grant him such right of way, but stated that, while he could not grant him such right of way, he felt sure that the appellant was reasonable and would do what was right about it, and if it was he that he would go ahead and construct such line over the land. The appellee did construct the line over appellant’s land without permission from appellant so to do, but entered into a correspondence with her, she being a nonresident of the state, to get her to consent to such construction, and offering to pay what was reasonable, and also offering to buy her timber growing on said lands if she desired to sell such timber. Considerable correspondence passed, but the appellant refused at all times to agree for the appellee to cross her land, and’refused to sell the timber. Thereupon the appellee filed a petition to the board of supervisors of the county in which the land was situated, setting forth the residence and place of business of the appellee, and alleging that the petitioner is engaged .in the manufacture of lumber, cutting trees from the forests, and transporting the lumber and logs so cut by a logging railroad to its sawmill plant at Bude, Miss., and that in the operation of said logging railroad it became necessary to obtain a right of way over which to cross, either by grant with right to cut timber, or by grant of the right of way alone, except as to lands wholly owned by itself; that it owned large quantities of timber in the said county, and it is building its line to cut said timber, and that petitioner owns lands adjacent to said lands of appellant above described, but does not own the timber or any right of way over the Northeast quarter of Southwest quarter, section 24, township 4, range 3, and in the construction of its logging rail — 23 — road and its operations it became and is now necessary that it cross with its logging line either the corner of the Northeast quarter of section 24, township 4, range 3 East, or the corner of the Southwest quarter of said section, and that it is more convenient, and less damage would be occasioned, for it to cross the Northeast quarter of section 24, and it would only have to build ninety-six feet in length of track across the Southwest quarter of Northeast quarter, so that it might reach its timber to the South and Southeast of said land, and that it would only use the light of way for a short time. It is alleged that the ownership of the Northeast quarter of section 24, above described, is in the appellant, and that petitioners made every kind of effort and reasonable proposition for a right of way across appellant’s land, and that appellant has refused to sell, grant, or permit a right of way across her land within reason or within a reasonable price; that it becomes necessary for the petitioner to have a right of way across appellant’s land that it might reach,, cut, haul, and remove its timber on the South and East of said land, as it has no means of reaching, or route by which it might reach, said timber except by crossing said land or the lands of others; that it is more convenient to cross her land, and less damage would be done in crossing appellant’s land than any other, as a track can be laid upon the surface of the land without the digging of ditches or the making of a cut or fill on the same; that the board of supervisors has authority under chapters 258 and 259 Laws of 1920, to grant unto petitioner a right of way over the lands of said Mrs. Whitefort upon payment by petitioner of all costs of the proceeding and reasonable damages that said appellant would suffer, all of which petitioner is ready to pay, and prays for an order giving notice to Mrs. Whitefort and a condemnation of the right of way over said land. The board of supervisors thereupon gave notice that it would go upon the land, assess the damages, and allow the right of way, naming a time at which the complainant might appear. Thereupon appellant filed a bill in the chancery court, setting up her — 24 — ownership of said land and her refusal to sell the right of way to the appellee, and alleging that the lumber company through its agents had gone upon the land and cut a right of way and built a line of logging road across her land, and of the filing thereafter by the petitioner 6f the petition to the board of supervisors, and of the proceedings on the part of the board of supervisors, giving her notice to appear to show cause why the right of way should not be condemned cross her said property. That the board was acting under chapters .258 and 259, Laws of 1920, and unless restrained will proceed to condemn said land at its next meeting, and grant to the defendant lumber company a right of way through her property. She alleges that chapters 258 and 259, Laws of 1920, are unconstitutional and void, and prays for an injunction ¿gainst the defendant and the board of supervisors to enjoin them from further proceedings under said chapters, and prayed for a mandatory injunction, commanding the lumber company to remove its tracks and rails from across her land, and to enjoin its further trespassing upon said land, and also prays an assessment of all damages already accrued, actual and punitive, for the willful and continued trespass on her property, and prays that the lumber company be enjoined from proceeding under said chapters because they are unconstitutional, and prays for the statutoiw penalty for the cutting of timber and for all damages sustained. Defendant admitted substantially the allegations of the bill, except it contended that the agent of Mrs, Whitefort gave permission for it to cross said lands, and denied that said statutes above referred to were unconstitutional and void, and set up in the answer its business and the necessity for constructing said logging road across complainant’s land, but admits that it went upon the land in good faith, and was ready to pay for the right of way; but that after being notified that the complainant would not consent to the construction of its logging line over her land, the lumber company .proceeding in accordance with chapters 258 and 259, Laws of 1920, to have the board of super — 25 — visors grant it said right of way. The proof in the case fully establishes that the agent of the complainant did not grant a'right of way, and had no authority so to do, and that he so told the agent of the lumber company, but told the agent that, if it were he, he would proceed to build the line, as he felt sure that Mrs. Whitefort would be reasonable about the matter. The chancellor refused to grant complainant relief, dismissed her bill without prejudice on the theory that the defendant had applied to the board of supervisors to condemn the right of way, being of the opinion that chapters 258 and 259, Laws of 1920, are constitutional, and that the board of supervisors have jurisdiction of the subject-matter, and that the court should not interfere with it. From which decree this appeal is prosecuted. The question of the constitutionality of chapters 258 and 259, Laws of 1920, is serious, but we do not find it necessary now to decide the constitutionality of such statute. In our opinion the proceedings before the board of supervisors did not present a case coming within the statute. The statute undertakes to grant a right of ay ay where necessary for ingress or egress. We think that under the statute, if it be constitutional, the petitioner, lumber company, must shoAV that it has been unable to obtain a right of way by contract or agreement not only from the party whose property he seeks to invade, but by any other reasonable way he seeks to secure from other persons a right of Avav. In other words, the petition must shoAV on its face that there is no other land over which the lumber company might secure a right of way, and must shoAV effort to obtain such right of Avay from such other OAvner. The petition does not show any reason why such other right of way Avould not be usable for the purpose, nor that it cannot be obtained by grant. The statute does not contemplate granting one citizen or corporation a right of way through the property of another citizen or corporation as a matter of mere convenience or as a mere matter of saving expense. There must be real necessity before private — 26 — property can be invaded by a citizen for private purposes, if that can be done at all. The right to the control and use of one’s property is a sacred right, not to be lightly invaded or disturbed. When property may be taken from a citizen for any purpose by law, the method for so doing must be strictly pursued, and the party seeking to take the property of another must come squarely within the statute. We think also that the court erred in dismissing the bill, and that it ought to have granted compensation or damages for the invasion of the property already made and for trespasses already perpetrated. If a person or corporation desires to use the property of another person or corporation, they should first acquire a right to do so, either by contract or by any legal method available for securing such right of way; but if they act without a right so to do before proceeding according to law, they are liable in damages for all such acts done without authority of law. In order for the board of supervisors to obtain jurisdiction the petition should set forth the necessary facts to confer jurisdiction. It is a statutory scheme in derogation of common right, and the jurisdictional fact should appear in the face of the petition. The judgment will be reversed, and the cause remanded, with directions to reinstate the injunction and award damages. Reversed and remanded.