City of Laurel v. Rowell

84 Miss. 435

• Court: Mississippi Supreme Court
• Decided: March 15, 1904
• Status: Published

Opinion

Calhoon, J.,

delivered the opinion of the court.

When people build on the side of, and with reference to, a public street, they acquire an easement in its free user by them and the public and in the resultant value of such user. This is property, and cannot he taken from them or damaged by closing the street, except upon compensation first paid. The closing of the street is a taking of the easement for the public use in the purview of our constitution. If this be not true, three out of five of a municipal board, as in this case, may work ruin at will on property holders. Moreover, we think this record shows that the closing of Post street was in order to put appellant corporation in possession of it, and this is ultra vires and intolerable. Smith v. McDowell, 148 Ill., 51 (35 N. E., 141; 22 L. R. A., 393; 1 Am. & Eng. Ency. Law, 225-226); Moose v. Carson, 7 L. R. A., 548, and notes; Elliott, Roads and Streets, sec. 877; 2 Smith, Mun. Corp., sec. 1215. Three out of five of a municipal board cannot, nor can the whole hoard, do what, very clearly, the Legislature itself, the only fountain of its authority, is powerless to do. The tendency of these hoards throughout the country is to usurp pow ers not given them. Countless oppressions of private citizens, too poor, too ignorant, or too humble to excite attention or enlist the advocacy of the influential, never see the sunlight of the courts of law. Many schemes which are hatched in “the perfumed chambers of the great” are feathered and winged in these councils, to the injury of the lowly and the poor. They must 'be held in with a tight rein at the bar of the people sitting in the persons of their judges in their solemn tribunals of justice. All the citizens of a town have the right to have their public thoroughfares, streets, or alleys, whether acquired .by dedication or user, kept open for their own use and the use of visiting strangers who come for commerce or social intercourse. They should never be closed except when plainly for the public good, and cannot then be closed except upon compensation first paid for any damage to abutting proprietors. It is of no avail, in the case before us, to talk of the consent of one of the two co-owners that the closure might be made if a ten-foot alley were left. The ordinance leaves no alley, but is that Post street be closed, and, on this record, the ordinance would be void if it had left the alley.

The chancellor was right in refusing to dissolve the injunction. This being on appeal to settle the principles of the case, we affirm at appellants’ costs in this court, and remand for further proceedings.