[400]*400Lee, C. J.
This appeal is a sequel to Mississippi State Highway Commission v. Morgan, 248 Miss. 631, 160 So. 2d 77 (1964).
In that instance, the Commission, in locating the limited access U. S. Interstate Highway No. 59 partly in the Town of Sandersville in Jones County had crossed an east and west public road. North of that road and east of the proposed Highway No. 59, Ray Morgan owned 79.12 acres of land. Adjacent to and north thereof, James Keller, Jr., owned four forties of land vertically one above the other. His home was situated about the middle of the south forty. While there was a public road alongside of the north forty, “there is and has been in recent years no practicable road running north through his remaining land (about three-fourths of a mile) to the public road on the north side.” Keller and his predecessors in title, for approximately 50 years, had been permitted to use a trail through the Morgan property to reach the public road to the south, but this means of access was not a public road, and he had obtained no legal right to its continued use if and when the Morgans withdrew that permission; and that was done.
The Commission, in securing a strip of land off the west side of the Keller tract for the right-of-way of [401]*401Interstate Highway No. 59, agreed that it would substitute an easement on the east side of the right-of-way and afford him access to the public road to the south. In compliance with that agreement, the Commission instituted condemnation proceedings to secure from the Morgans both access and right-of-way interests, as described in two parcels of land, designating them as No. 1 and No. 2. There was no controversy over parcel No. 1. In fact the Morgans conceded that it was for public use.
At that juncture, the Morgans filed their petition for a writ of prohibition in order to determine the right of the Commission to condemn. The writ was granted, and, on final hearing, was made permanent. That action was affirmed, on appeal, by this Court.
In so affirming the circuit court, the opinion held that the Commission had the power of substitute condemnation. It cited Mississippi Code Annotated sections 8038, 8039-05, and 8039-09. It further documented this conclusion with 2 Nichols, Eminent Domain, section 7.226 (1963); Dohany v. Rogers, 281 U. S. 362, 74 L. Ed. 904, 50 S. Ct. 299, 68 A. L. R. 434 (1930); Brown v. U. S., 263 U. S. 78, 68 L. Ed. 171, 44 S. Ct. 92 (1923); Pitznogle v. Western Maryland R. Co., 119 Md. 673, 87 A. 917, 46 L. R. A. (N. S.) 319 (1913); Luke v. Massachusettes Turnpike Authority, 337 Mass. 404, 149 N. E. 2d 225 (1958). The opinion pointed out that the Pitznogle case, supra, in substance had held that “the substitute right-of-way which provided a substitute method of access to the damaged landowner resulted in full and unrestricted access for him to a public road.” The same result was attained in the Luke case, supra. Other authorities were also listed.
The opinion also held that the Commission properly and adequately found unusual conditions to warrant the taking of less than 60 feet, and hence, was not violative of sections 8023 and 8039-05 of the Code.
[402]*402The opinion then set forth at page 638 the sole grounds for affirmance of the trial court’s judgment as follows:
However, the Commission abused its discretion in seeking to condemn Parcel No. 2 easement owned by-Morgan. It would terminate at a dead-end, on Morgan’s land 300 feet north of the public road. It would connect to the old trail used permissively by Keller over Morgan’s property, but it would not connect with any easement or right of property vested in Keller. He had only a permissive way, subject to termination at any time. If Parcel No. 2 connected with an easement owned by Keller, it would be a legitimate substitute form of access acquired by the Commission for the use of the owner who had been forced to give up his property for a conceded public use. But here those facts do not exist. The easement, if condemned, would not furnish Keller a right of access to the public road on the south. It would terminate 300 feet north of that point, with no property right in Keller for traversing the remainder of Morgan’s land to the road on the south. For these reasons, we hold that the Commission abused its discretion in seeking to condemn Parcel No. 2, and the circuit court was correct in prohibiting continuance of condemnation proceedings as to that tract.
The Court then made this final statement:
Hence the judgment of the circuit court is affirmed, without prejudice to any other rights or remedies, if any, which might be asserted by the parties or by Keller.
Following the decision of this Court, the Mississippi State Highway Commission, forthwith, on January 28, 1964, adopted its resolution of public necessity for the taking of an additional strip of the Morgan land for public use to continue the Parcel No. 2 easement down to a junction with the county public road on the south, as set forth therein. It directed the Chief Engineer of [403]*403the Department to prepare the necessary amended plans and specifications therefor, and authorized and requested the Attorney General to institute all condemnation proceedings for the acquisition of such property for public use.
The Attorney General, agreeably to the request and instructions of the Commission, thereafter filed an amended petition for condemnation of such parcels, returnable to the March 1964 term of the County Court of the Second Judicial District of Jones County, and on April 7, 1964, the Circuit Judge granted a temporary writ of prohibition, staying the hearing in the County Court until the Circuit Judge had decided the same.
The cause was heard by the learned Circuit Judge, who found that the facts were essentially the same as in the original writ of prohibition with a slight exception, as named, and, on April 29, 1964, ordered the temporary writ to be made permanent. From that judgment, the Commission has again appealed.
From the declarations of the Commission and the metes and bounds descriptions of the property to be condemned, together with the map and plat thereof, it appears that the .Commission will be assured that it will acquire a strip of land for public use both as right-of-way for Interstate Highway No. 59 and access thereto over and across the lands of the Morgans from the north line of their property to the public road along the south boundary of the same. In the former appeal, there was an abuse of discretion on the Commission’s part because the object of access would not be assured. In the present case, the purpose will be attained.
But the appellees argue that the Commission is actually taking their land for the use of one individual and that this is not a public use.
However, it must be remembered that the prime purpose of this suit was to acquire a right-of-way for this highway. In order to do so, it was necessary, under [404]*404Section 17 of the Constitution, that due compensation should first he made to the owner.
Free access — add to your briefcase to read the full text and ask questions with AI
[400]*400Lee, C. J.
This appeal is a sequel to Mississippi State Highway Commission v. Morgan, 248 Miss. 631, 160 So. 2d 77 (1964).
In that instance, the Commission, in locating the limited access U. S. Interstate Highway No. 59 partly in the Town of Sandersville in Jones County had crossed an east and west public road. North of that road and east of the proposed Highway No. 59, Ray Morgan owned 79.12 acres of land. Adjacent to and north thereof, James Keller, Jr., owned four forties of land vertically one above the other. His home was situated about the middle of the south forty. While there was a public road alongside of the north forty, “there is and has been in recent years no practicable road running north through his remaining land (about three-fourths of a mile) to the public road on the north side.” Keller and his predecessors in title, for approximately 50 years, had been permitted to use a trail through the Morgan property to reach the public road to the south, but this means of access was not a public road, and he had obtained no legal right to its continued use if and when the Morgans withdrew that permission; and that was done.
The Commission, in securing a strip of land off the west side of the Keller tract for the right-of-way of [401]*401Interstate Highway No. 59, agreed that it would substitute an easement on the east side of the right-of-way and afford him access to the public road to the south. In compliance with that agreement, the Commission instituted condemnation proceedings to secure from the Morgans both access and right-of-way interests, as described in two parcels of land, designating them as No. 1 and No. 2. There was no controversy over parcel No. 1. In fact the Morgans conceded that it was for public use.
At that juncture, the Morgans filed their petition for a writ of prohibition in order to determine the right of the Commission to condemn. The writ was granted, and, on final hearing, was made permanent. That action was affirmed, on appeal, by this Court.
In so affirming the circuit court, the opinion held that the Commission had the power of substitute condemnation. It cited Mississippi Code Annotated sections 8038, 8039-05, and 8039-09. It further documented this conclusion with 2 Nichols, Eminent Domain, section 7.226 (1963); Dohany v. Rogers, 281 U. S. 362, 74 L. Ed. 904, 50 S. Ct. 299, 68 A. L. R. 434 (1930); Brown v. U. S., 263 U. S. 78, 68 L. Ed. 171, 44 S. Ct. 92 (1923); Pitznogle v. Western Maryland R. Co., 119 Md. 673, 87 A. 917, 46 L. R. A. (N. S.) 319 (1913); Luke v. Massachusettes Turnpike Authority, 337 Mass. 404, 149 N. E. 2d 225 (1958). The opinion pointed out that the Pitznogle case, supra, in substance had held that “the substitute right-of-way which provided a substitute method of access to the damaged landowner resulted in full and unrestricted access for him to a public road.” The same result was attained in the Luke case, supra. Other authorities were also listed.
The opinion also held that the Commission properly and adequately found unusual conditions to warrant the taking of less than 60 feet, and hence, was not violative of sections 8023 and 8039-05 of the Code.
[402]*402The opinion then set forth at page 638 the sole grounds for affirmance of the trial court’s judgment as follows:
However, the Commission abused its discretion in seeking to condemn Parcel No. 2 easement owned by-Morgan. It would terminate at a dead-end, on Morgan’s land 300 feet north of the public road. It would connect to the old trail used permissively by Keller over Morgan’s property, but it would not connect with any easement or right of property vested in Keller. He had only a permissive way, subject to termination at any time. If Parcel No. 2 connected with an easement owned by Keller, it would be a legitimate substitute form of access acquired by the Commission for the use of the owner who had been forced to give up his property for a conceded public use. But here those facts do not exist. The easement, if condemned, would not furnish Keller a right of access to the public road on the south. It would terminate 300 feet north of that point, with no property right in Keller for traversing the remainder of Morgan’s land to the road on the south. For these reasons, we hold that the Commission abused its discretion in seeking to condemn Parcel No. 2, and the circuit court was correct in prohibiting continuance of condemnation proceedings as to that tract.
The Court then made this final statement:
Hence the judgment of the circuit court is affirmed, without prejudice to any other rights or remedies, if any, which might be asserted by the parties or by Keller.
Following the decision of this Court, the Mississippi State Highway Commission, forthwith, on January 28, 1964, adopted its resolution of public necessity for the taking of an additional strip of the Morgan land for public use to continue the Parcel No. 2 easement down to a junction with the county public road on the south, as set forth therein. It directed the Chief Engineer of [403]*403the Department to prepare the necessary amended plans and specifications therefor, and authorized and requested the Attorney General to institute all condemnation proceedings for the acquisition of such property for public use.
The Attorney General, agreeably to the request and instructions of the Commission, thereafter filed an amended petition for condemnation of such parcels, returnable to the March 1964 term of the County Court of the Second Judicial District of Jones County, and on April 7, 1964, the Circuit Judge granted a temporary writ of prohibition, staying the hearing in the County Court until the Circuit Judge had decided the same.
The cause was heard by the learned Circuit Judge, who found that the facts were essentially the same as in the original writ of prohibition with a slight exception, as named, and, on April 29, 1964, ordered the temporary writ to be made permanent. From that judgment, the Commission has again appealed.
From the declarations of the Commission and the metes and bounds descriptions of the property to be condemned, together with the map and plat thereof, it appears that the .Commission will be assured that it will acquire a strip of land for public use both as right-of-way for Interstate Highway No. 59 and access thereto over and across the lands of the Morgans from the north line of their property to the public road along the south boundary of the same. In the former appeal, there was an abuse of discretion on the Commission’s part because the object of access would not be assured. In the present case, the purpose will be attained.
But the appellees argue that the Commission is actually taking their land for the use of one individual and that this is not a public use.
However, it must be remembered that the prime purpose of this suit was to acquire a right-of-way for this highway. In order to do so, it was necessary, under [404]*404Section 17 of the Constitution, that due compensation should first he made to the owner. One of the misfortunes, attendant upon the construction of limited access highways, is the destruction of the egress and ingress of landowners. Public officials, in the exercise of their right to take private property for public use, ought undoubtedly to minimize such damage as far as is reasonably possible and in keeping with their duty not to expend public moneys needlessly. The Court is mindful that, in such dilemmas, a wide measure of discretion must be recognized. Erwin v. Miss. State Highway Comm’n, 213 Miss. 885, 58 So. 2d 52 (1952), and cases therein cited. It must also be kept in mind that the acquisition of an easement or right-of-way for the benefit of parcels of land incidentally cut off from all or some means of access to an existing way, is a mere by-product of laying out the highway, which is essential for the purpose of accomplishing its purpose.
In 18 Am. Jur. Eminent Domain section 41, at 669-71 (1938), it is said:
The general rule is settled that the exercise of eminent domain for a public purpose which is primary and paramount will not be defeated by the fact that incidentally a private use or benefit will result which will not of itself warrant the exercise of the power. This condition arises in every case in which a taking is made by a public service corporation. The incidental benefit to the stockholders in the profits arising from tolls, fares, and other charges does not render the use for which the taking is made a private use, if the tolls, fees, and charges are to be derived from serving the public. Similarly, the fact that incidental private advantages to certain lands are expected to accrue from the construction of the improvement does not derogate from the public nature of the use, if it is constructed for the benefit of the public. Nor does the fact that a by-product of the taking is sold for private [405]*405use derogate from the public nature of the use. This rule has been applied in respect of incidental benefit from surplus power or water developed in a taking for public use, from the condemnation of land for parks, from the opening, relocation, or change of grade of a highway, from irrigation projects, from harbor improvements, from the drainage of wet and overflowed lands, and from gasoline extracted from gas before being distributed to consumers.
This principle was cited and applied in Culley v. Pearl River Industrial Commission, 234 Miss. 788, 108 So. 2d 390 (1959), where the Court held that the taking of lands by condemnation in the one-quarter mile perimeter of the reservoir and their subsequent sale or lease for the purpose of operating recreational facilities was not violative of the constitutional prohibition against condemnation for a nonpublic use. The twelveth syllabus of that opinion says:
The general rule is settled that the exercise of eminent domain for a public purpose which is primary and paramount will not be defeated by the fact that incidentally a private use or benefit will result which will not of itself warrant the exercise of the power.
Again, in the case of Pearl River Water Supply Distract v. Brown, 248 Miss. 4, 156 So. 2d (1963), the landowners were contending that the use of land, condemned through eminent domain, for restaurants, motels, and other enumerated activities would be for private and not public purposes. However, the opinion held that “all of such incidental uses are public uses,” citing a number of authorities. The syllabi of that opinion give a quick index to the holding in that case, and provide a ready and exhaustive authority for the question here before the Court.
Under this condemnation proceeding, the Commission seeks both a right-of-way and an easement for access, and the title thereto will become vested in the [406]*406Commission. Its subsequent compliance with its covenant and agreement with Keller, as heretofore stated, to furnish access for him to the public road on the south cannot be construed as for his exclusive benefit.
The appellees also contend that the proposal of the Commission in this instance may rightfully be denominated as unique.
If this happens to be the first occasion for the application of the principle in this state, only in that way is such a denomination correct. The cited authorities show that it has been so applied in many other jurisdictions. There is no contravention of Section 17 of the Constitution. When it is remembered how the country is now so completely dependent upon roads for travel both for business and for pleasure — and this must also take into consideration the safety of persons and property •— one is readily overwhelmed in the conviction that public necessity exists in the present instance. Even though public necessity in the early days of the country did not require such takings, it assuredly does so in these modern days. Besides, the wisdom of constitutional provision 17 is both clear and so extensive that it affords means and methods for the satisfaction of present day needs and public necessities.
The Court is of the opinion that the use here in question is a public use; that there is no proof of fraud or abuse of discretion; and that the learned judge was in error in granting the permanent writ of prohibition.
Those propositions were the heart of this appeal, and it is therefore unnecessary to respond to other arguments of the appellees as grounds for affirmance.
The judgment of the trial court must be, and it is, reversed, the writ of prohibition is quashed and discharged, and the cause is remanded to the county court for trial of the condemnation proceedings.
Judgment reversed, writ of prohibition quashed and discharged, and cause remanded to the county court for trial.
[407]*407All Justices concur, except Patterson and Inzer, JJ., who dissent.