Opinion
No. 43236.
October 12, 1964.
1. Eminent domain — evidence — public necessity for taking shown.
Finding of trial court that condemnor water supply district had abused its discretion in finding a present public necessity to take, along with larger tract owned by condemnees, the four acre portion on which condemnees' residence was situated, was not supported by the record in prohibition case.
Headnote as approved by Ethridge, J.
APPEAL from the Circuit Court of Rankin County; O.H. BARNETT, J.
Watkins, Pyle, Edwards Ludlam, Clifford C. Chittim, Jackson, for appellant and cross-appellee.
I. The condemnation of the entire 63.4 acres was for the uses of the district in fulfilling its public purposes. Culley v. Pearl River Industrial Comm., 234 Miss. 788, 108 So.2d 390; Horne v. Pearl River Valley Water Supply District, 249 Miss. 358, 162 So.2d 504; Pearl River Valley Water Supply District v. Brown, 248 Miss. 4, 156 So.2d 572; Secs. 5956-51 — 5956-81, Code 1942.
II. The record is devoid of any proof showing that the appellant abused its discretion in not excluding from the condemnation application the residence of the appellees.
A. The burden of proof rests on petitioner in a writ of prohibition proceeding to establish abuse of discretion. Pearl River Valley Water Supply District v. Brown, supra.
B. Land does not become immune to condemnation by virtue of location of owners' residence thereon. Pearl River Valley Water Supply District v. Brown, supra; Pearl River Valley Water Supply District v. Wood, 248 Miss. 748, 160 So.2d 917.
C. There was in the evidence before the Court no lawful basis for distinguishing appellant's right to take the controversial four acres from its right to take the remainder of appellees' land.
D. The trial court exceeded its power of review in making permanent the temporary writ of prohibition as to four acres with the residence of appellees thereon. City of Chicago v. Newberry Library, 7 Ill.2d 305, 131 N.E.2d 60; City of Natchez v. Henderson, 207 Miss. 14, 41 So.2d 41; Culley v. Pearl River Industrial Comm., supra; Sec. 5956-61(f), Code 1942; 18 Am. Jur., Eminent Domain, Sec. 111 p. 738; 29 C.J.S., Eminent Domain, Sec. 92 p. 890.
Lee, Moore Countiss, Jackson; Murray Bridges, Brandon, for appellees and cross-appellants.
I. The attempted condemnation of appellees 63.4 acres of land was an abuse of discretion, and constituted a legal fraud upon the owners. Berman v. Parker, 248 U.S. 26, 99 L.Ed. 27; Berry v. Southern Pine Electric Power Assn., 222 Miss. 260, 76 So.2d 212; City of Jackson v. Craft (Miss.), 36 So.2d 149; City of Natchez v. Henderson, 207 Miss. 14, 41 So.2d 41; Culley v. Pearl River Industrial Comm., 234 Miss. 788, 108 So.2d 39; Ferguson v. Board of Supervisors of Wilkinson County, 149 Miss. 623, 115 So. 779; Gale v. City of Jackson, 238 Miss. 826, 120 So.2d 550; Hamm v. Board of Levee Commissioners, 83 Miss. 534, 35 So. 943; Horne v. Pearl River Valley Water Supply District, 249 Miss. 358, 162 So.2d 504; New York City Housing Authority v. Muller, 270 N.Y. 333, 1 N.E.2d 153; Nicholson v. Board of Mississippi Levee Commissioners, 203 Miss. 71, 33 So.2d 604; Pearl River Valley Water Supply District v. Brown, 248 Miss. 4, 156 So.2d 572; Whitworth v. Mississippi State Highway Comm., 203 Miss. 94, 33 So.2d 612; Wise v. Yazoo City, 96 Miss. 507, 51 So. 453; Sec. 5956-53, Code 1942; 29 C.J.S., Eminent Domain, Sec. 29 p. 816.
II. What is a public use as defined and limited for purposes of condemnation. Hartman v. Tresise, 36 Colo. 146, 84 P. 685, 4 L.R.A. (N.S.) 872; Howard Mills Co. v. Schwarts Lumber Coal Co., 77 Kan. 599, 95 P. 559, 18 L.R.A. (N.S.) 356; Opinion of the Justices, 204 Mass. 607, 91 N.E. 405, 27 L.R.A. (N.S.) 483; Peavy-Wilson Lumber Co. v. Brevard County (Fla.), 31 So.2d 483; Re Opinion of the Justices, 211 Mass. 624, 98 N.E. 611, 42 L.R.A. (N.S.) 221; State ex rel. Toledo v. Lynch, 88 Ohio State 71, 102 N.E. 607, 48 L.R.A. (N.S.) 720, Ann. Cas. 1914D 949; State v. Wiethaupt, 231 Mo. 449, 133 S.W. 329; Sugar v. Monroe, 108 La. 677, 32 So. 961; 18 Am. Jur., Eminent Domain, Sec. 29 p. 816; Lewis, Eminent Domain, Sec. 258; Nichols, Eminent Domain, Sec. 7.5152.
III. A statute that commingles private and public property is void. City of Jackson v. Craft, supra; Ferguson v. Board of Supervisors of Wilkinson County, supra; Shizas v. Detroit, 52 N.W.2d 589; Secs. 5956-55 (d), 5956-61(f), Code 1942; 1 Lewis, Eminent Domain, Sec. 314.
This is another prohibition case involving the acquisition of perimeter lands for the Pearl River Reservoir. The District made an application for the condemnation of 63.4 acres owned by Mr. and Mrs. A.D. Stewart in Rankin County. The Stewarts then filed the present prohibition proceedings in circuit court. After a lengthy hearing, the circuit court held that the land was being taken for a public use, and there was a public necessity for it, except as to four acres on which the residence of the Stewarts is situated; that at this time the court did not find any public necessity to take the four acres, and the Board of Directors of the District had abused its discretion in taking them. Hence it dissolved the writ of prohibition as to all of the land, except four acres. The District appealed, and the Stewarts cross appealed.
(Hn 1) The record does not support the trial court's finding of an abuse of discretion by the District board as to the four acres. No purpose would be served by analyzing the lengthy evidence on this issue. This case is controlled by several others deciding this question. Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So.2d 572; Pearl River Valley Water Supply Dist. v. Wood, 248 Miss. 748, 160 So.2d 917; Horne v. Pearl River Valley Water Supply Dist., 249 Miss. 358, 162 So.2d 504; Wright v. Pearl River Valley Water Supply Dist., 167 So.2d 660 (Miss. 1964); see also Culley v. Pearl River Industrial Comm., 234 Miss. 788, 108 So.2d 390 (1959).
On the direct appeal, the judgment of the circuit court is reversed, and judgment is rendered here dismissing in toto the petition for writ of prohibition; on the cross appeal, the judgment is affirmed.
On direct appeal, reversed and judgment rendered here; on cross appeal, affirmed.
Lee, C.J., and Gillespie, Rodgers and Jones, JJ., concur.