Ball v. City of Louisville

56 So. 2d 4, 218 Miss. 867, 1952 Miss. LEXIS 602
CourtMississippi Supreme Court
DecidedJanuary 7, 1952
DocketNo. 38160
StatusPublished
Cited by5 cases

This text of 56 So. 2d 4 (Ball v. City of Louisville) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ball v. City of Louisville, 56 So. 2d 4, 218 Miss. 867, 1952 Miss. LEXIS 602 (Mich. 1952).

Opinion

Roberds, P. J.

This is a contest over the effort to extend the municipal boundaries of the City of Louisville, Mississippi. The proceedings were had under Sections 3376 and 3379, Miss. Code of 1942, being prior to the passage of Chapter 491, General Laws of Mississippi 1950, superseding said sections of the Code of 1942. However, the matter was heard by the chancellor by agreement. He decided against the protestants and they appeal.

They relied in the lower court, and they rely here, upon two contentions, first, that the description of the territory proposed to be added is vague, indefinite and uncertain; and, second, that such addition would be unreasonable.

On the first question, the ordinance adopted by the mayor and aldermen described the added territory as “Beginning at a monument being the center of Main Street and Columbus Avenue of the City of Louisville, Mississippi running West in the center of West Main Street a distance of 5280 feet to beginning point of New Extensions of City limits, run thence North 4620 feet; thence East 9240 feet; thence South 10560 feet; thence West 9240 feet; thence North 5940 feet to beginning point * * *, ’ ’ less the present city limits, which limits themselves are described in detail. West Main Street runs in a generally westerly direction from said monument, but near its western terminus it veers to the north, so that from that veering point it is impossible to run due west and remain in the center of the street, or even in the street. In other words, running due west from the monument 5,280 feet would locate a point a short distance south of the point which would be reached by running that distance westerly in the center of Main Street. How[875]*875ever, that does not make the description uncertain. In case of conflicting descriptions, courses and distances are controlled by, and must yield to, monuments, whether natural or artificial. 8 Am. Jur., Sections 53 and 62, pages 782 and 789; 11 C. J. S., Boundaries, Section 50, page 605; Potts v. Cannon Cotton Compress & Warehouse Co., 70 Miss. 462, 12 So. 147; Devlin on Real Estate, 3rd Edition, Vol. 2, Section 1029, page 1990; Holcomb v. McClure, 211 Miss. 849, 52 So. 2d 922, 923. It was held in Colton v. Seavey, 22 Cal. 496, that the monuments should control although they determined the course of the line to be northeasterly instead of westerly, which is exactly the situation we have here from the point where Main Street veers to the north.

The general rules of construction which obtain in the case of private conveyances have been applied in the construction of descriptions of municipal boundaries. This includes the rule that fixed monuments govern courses and distances. 62 C. J. S., Municipal Corporations, Section 38d, p. 118.

The question is somewhat confused by the fact that the City engaged B. T. Parker to make two surveys of the over-all territory, one before and one after the passage of the ordinance November 8, 1949, and in both surveys he got his starting point by running due west from the monument a distance of 5,280 feet, which point, as stated, was a short distance south of the point in the center of Main Street. However, the City never adopted either of Parker’s surveys. The ordinance was adopted subsequent to the first survey. It did not follow that survey and the city officials testified they worked out their own description and deliberately settled upon the center of the street as being the course to be followed in locating the starting point. As to Parker’s second survey, it is not disputed that he was given a copy of the ordinance by which to make the survey. He testified he misplaced, or lost, the copy, and presuming he should start at the [876]*876same point at which he started the first time he did that. However, that survey was never adopted by the City. Of course, the municipality could only act through its minutes and the description contained in the ordinance is the only description it ever adopted upon its minutes, and was the description of which the inhabitants were given due notice by publication. It might be added that Section 3376, Code 1942, under which this proceeding was had, does not require that a survey or plat be made by the municipality. All that is required is that an ordinance be passed defining with certainty the territory which it is proposed to include and also defining the entire boundary as changed. Section 3377, Code 1942, requires publication of the ordinance. All of these things were done. We are of the opinion the chancellor correctly decided this contention against appellants.

On the reasonableness of the extension, the following facts are either admitted or undisputed: It is stated in the brief of appellee, and not denied by appellants, that the municipality of Louisville was incorporated in 1882. (The records in the office of the Secretary of State show the year to be 1836.) The original incorporated territory aggregated 1,000 acres. The limits have never been extended. The last census showed the population to be 4,360. It has increased one-third in the last ten years. In that period 334 new residences and 38 new business houses have been erected, and at the time of the trial 56 new residences, 4 business houses and one church were being constructed within the old corporate limits. The territory proposed to be added consists of 1,240 acres, in which there are 266 residences and 916 inhabitants. According to the county assessment, the value of the property in the new territory in the year 1949 was $821,285. There are four large corporations located entirely, or partly, within the extended area. The assessed value of their property, on said-county assessment basis, is as follows: Gulf, Mobile & Ohio Railroad about $74,500; [877]*877American Creosote Works $88,000; Southern Natural Gas Company $450,000; Fair Lumber Company $46,000.

The testimony on behalf of protestants tended to establish the following facts: Fair purchases part of its electricity from the City. Fair has its own lighting plant, and in times of interruption of City service has furnished to the City some electric current. It has its own water works, and at the time of the trial was installing additional wells, increasing its water capacity to one hundred thousand gallons. It has its own water lines and hydrants. One City fire truck is stationed at the plant. Witnesses said the only benefit to Fair from the extension would be mosquito and insect extermination by use of the City fogging machine.

The Creosote Company gets electric current from REA and water from the City. It has a private arrangement with the City firemen to furnish it fire protection when needed.

The Railroad Company runs through the present corporate limits. It gets water from the City. It had a 100,000 gallon storage tank which it turned over to the City without charge. It purchases electric current from the City. Witnesses concluded the only benefit to accrue to the Railroad by the new addition would be the benefit of the fogging machine.

The Gas Company has three water wells with tank storage capacity of 300,000 gallons; has its own pumps and hydrants. It gets no water from the City. It purchases about one-third of its electric current from the City but is preparing to install another electric generator, which will provide it with all the electric power it needs. Witnesses said it needed no police protection, nor garbage disposal, by the City.

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Cite This Page — Counsel Stack

Bluebook (online)
56 So. 2d 4, 218 Miss. 867, 1952 Miss. LEXIS 602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ball-v-city-of-louisville-miss-1952.