Board of Levee Commissioners v. Dancy

65 Miss. 335

• Court: Mississippi Supreme Court
• Decided: October 15, 1887
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the Court.

In this state “ due compensation first being made ” is a precedent condition of the appropriation of private property for public use, and whatever may be allowable, “ Where the state or any of its sub-divisions is concerned in the appropriation,” as held in Cage v. Trager, 60 Miss., 563, it is not true that the owner may be paid the price of his property by a requirement that he shall initiate proceedings for compensation against a corporation which is not the state or one of its sub-divisions, and against which it is said and truly, no personal judgment can be rendered, but only an award of a sum of money, without execution to enforce it. The land not having been secured before the building of the levee, the company or the owner might apply for commissioners to determine the sum due the owner; but it was not lawful to substitute for his right to due compensation as -the condition of divestiture of title, a right to institute proceedings to get it in three months or any other period of time.

The owner may lose his title by lapse of time long enough to bar its assertion, but cannot be compensated for his property .by an opportunity to litigate to secure “ due compensation ” for ut, however long the time allowed him for that.

' Obtaining by grant from the owner, or by adverse possession, long enough to bar his claim to the property, or condemning and paying for it, are the only modes of obtaining private property for public use in this state; and no act which •devolves on the owner the duty of initiating proceedings for -compensation for his property, as the condition of his obtaining it is allowable. He cannot be required to become an actor under the penalty of losing his property and “ due compensation ” for it, if he shall not. He may enjoy his own, secure under constitutional guaranty, until an inquest by public authority determines that it is required for public use, and fixes •the price to be paid Mm for the sale of it, and this price must be paid or tendered before his right can be divested, and a right to ask for compensation in three months or three years is not a valid substitute for the constitutional right to “ due compensation first being made.” The objection that the claim for compensation was not made in time is therefore not maintainable.

The appeal from the finding of the commissioners transferred the inquiry as to the sum to the jury for a retrial, and the .amount allowed by it might be greater or less.than that fixed by the commissioners. This results from an appeal given in general terms without any indication of a purpose to restrict ‘the meaning of the term.

We are unwilling to disturb the verdict for excessiveness, as the evidence is very conflicting and much of it supports the verdict.

The judgment against the appellant and surety on the appeal bond for costs is erroneous, and it is reversed and the appropriate entry may be made here.