Byrd v. Board of Sup'rs

176 So. 386, 179 Miss. 880, 1937 Miss. LEXIS 55

• Court: Mississippi Supreme Court
• Decided: October 18, 1937
• Docket: No. 32842.
• Status: Published

Opinions

Undoubtedly, if this was a private road, the Board of Supervisors was without jurisdiction; on the other hand, if it was a public road, under section 170 of the Constitution and section 214, Code of 1930, it has jurisdiction.

Appellants' contention that it was not shown to be a public road comes too late. That question was neither raised nor passed on by the Board of Supervisors or the circuit court. In the entire proceedings it was treated as a public road. Some of the petitions against its closing described it as a public road (record pages 13, 15 and 16), and the Board of Supervisors and the circuit court in their orders referred to it as a public road. It is too late now to make that an issue.

Legislation authorizing the closing and discontinuance of a public road was not necessary. Such authority is given by section 170 of the Constitution, but we also have legislative authority in section 214, Code of 1930. Berry v. Board of Supervisors,156 Miss. 629, 126 So. 405. Under section 17 of the Constitution neither the state nor any of its political subdivisions is required to tender in actual cash just compensation for the property taken or damaged in an eminent domain proceeding. The requirement of just compensation in advance is satisfied when the public faith and credit are pledged to a reasonably prompt ascertainment of payment and there is adequate provision for enforcing the pledge. Hinds County v. Johnson, 133 Miss. 591, 98 So. 95; State Highway Commission v. Buchanan, 175 Miss. 157,165 So. 795, 166 So. 537.

If abutting property owners were damaged in the closing of the road, they still have their remedy under the Berry Case.

Affirmed.