Noxubee County v. Long

106 So. 83, 141 Miss. 72, 1925 Miss. LEXIS 209

• Court: Mississippi Supreme Court
• Decided: November 16, 1925
• Docket: No. 24941.
• Status: Published

Opinions

Anderson, J.,

delivered the opinion of the court.

Appellees, J. R., J. P., Winston, and Virginia Long, brought this action in the circuit court of Noxubee County, against that county (which, for the sake of greater clarity, will be referred to as board of supervisors and board) for damages claimed to have been suffered by them because of the abandonment by the board of supervisors of the public highway in said county designated on the minutes of the board as “Road Link No. 11,” upon which appellees’ plantation abutted. There was a trial and judgment for appellees1 for fifteen hundred dollars and costs, from which the board of supervisors prosecutes this appeal.

The principal question in the case, and the only question we deem of sufficient seriousness to call for a discussion by the court, is whether the highway in question had been abandoned as such by the board of supervisors. Notwithstanding that is’ made the main question in the case in this court, that is not true of the trial in the court below. The abandonment of the highway lay at the very threshold of appellees’ case. It was charged in their declaration as the foundation of their right to recover. But on the trial of the case the board’s attorney admitted that it had been abandoned and the trial proceeded alone on the question of the amount of recovery. The controlling facts were as follows:

The highway involved was known as “World’s Ferry Road” and was designated on the board of supervisors’ minutes as “Road Link No. 11.” Appellees, contending that the road had been abandoned as a highway by the board, duly presented their claim to the board of supervisors for the damages which they claimed to have suffered because of such abandonment, which claim the board disallowed, and thereupon appellees brought this action in the circuit court, where there was a trial on the pleadings and evidence of the respective parties and a judgment rendered for fifteen hundred dollars.

Appellees alleged in their declaration that in December, 1919, the board of supervisors abandoned and discontinued the highway; that although the order then made to that effect was not entered on the minutes of the board, nevertheless subsequent orders were made by the board which were entered on its minutes to the same effect; that at the January, 1921, meeting of the board, an order was placed on its minutes appointing road over seers for the various public roads of the county -which recited, among other things, “Eoad Link No. 11 discontinued;” that at its January, 1922, meeting in an order on its minutes dealing with the same subject, it was recited, “Eoad Link No. 11. Eoad discontinued;” that again, the board in its minutes at its January, 1923, meeting,, dealing with the same subject, recited, “Eoad Link No. 11, discontinued;” and again, at its January, 1924, meeting, the board, dealing with the appointment of road overseers, recited in its order, “Eoad Link No. 11, discontinued.” The minutes of the meetings of the board referred to, in dealing with other road links in the county which had not been abandoned as public roads but over which no overseers were appointed, recited, for illustration, “Eoad Link No. 12, no appointment.” These orders of the board were made exhibits to appellees’ declaration. The declaration avers that because of such abandonment appellees’ farm lands'which abutted on said highway had been damaged; that said highway was the sole and only ingress and. egress to and from their plantation ; that the improvements on their1 plantation had been placed there because of and in reference to said highways; and that the discontinuance of said highway and the failure of the board of supervisors to maintain it and have it worked made appellees’ lands composing-said plantation inaccessible and of much less value than theretofore.

The board did not demur to appellees’ declaration, but took issue thereon. During the trial of the ease, the court asked this question, addressing the attorney for the board of supervisors:

“Q. You don’t deny the abandonment of the road, do you?” To which counsel made this response: “A. No; but we deny any damage.”

That question during the further progress of the trial was treated by the court and both parties as having been settled. There was no issue of fact or of law between them thereafter touching the question whether the road had been abandoned. The question was not only not sub mitted to the jury by the instructions of the court, but the instructions for both the board and appellees directed the jury peremptorily to find a verdict for appellees. This was done in at least two instructions for the board. The only question submitted to the jury was the question of the amount of damages appellees were entitled to.

We hold, in the first place, that the minutes of the board of supervisors show that the highway in question had been abandoned; that the county had surrendered its easement therein; that the public no longer had any interest in the highway. The minutes of boards of supervisors reciting their orders and judgments, like ■ those of justices of the peace, will be looked upon with indulgence. Although they may be unskillfully drawn, if by a fair and reasonable interpretation their meaning can be ascertained, they will be sufficient to answer1 the requirements of law. Boards of supervisors, it is true, can only act through their minutes. But in this case they have acted through their minutes. In appointing overseers for the public roads of the county, the board of supervisors deal with a part of the jurisdiction conferred on them by section 1701 of the Constitution — that of control over roads1, bridges, and ferries. All the roads of the county were being dealt with. Probably it would have been more in keeping with regularity to have dealt with the abandonment of the highway in a separate minute ; but, on the other hand, if one were trying to ascertain whether a road was a public highway or not, we doubt if the fact could be more readily ascertained than by going to its.minutes appointing overseers for the different roads of the county.

And, furthermore, this court is a court of appeal, not a court of original jurisdiction; it is a court organized for the purpose of reviewing the rulings and judgments of the trial courts. As such, this court will not permit the case, as presented to the trial court, to be transformed into an entirely different case in this court. It is contended that the admission of counsel representing the board that the road in question bad been abandoned is not binding on the board, because it was an admission beyond the scope of appellees ’ declaration. As we construe the declaration, it alleged that the road in question liad been abandoned as a highway, and as evidence of it there was presented with the declaration the four orders of the board entered in 1921, 1922, 1923, and 1924, reciting that the road had been abandoned as a highway. We do not think the admission of counsel representing the board to that effect was beyond the scope of the declaration, but within its scope and purpose.

The statute expressly gives the counties of this state the right to sue and be sued. When a county sues, or is sued, it stands in court like any other litigant. It is not a favored litigant. It is bound by the admissions and stipulations of its attorneys touching the action to the same extent that an individual would be bound. ' Appellees’ declaration charged that this road had been abandoned; it was the foundation of their case. The board of supervisors, through its counsel, during the trial, made a solemn admission on the record that that was a fact; that it would not be questioned; and then went further and had the court to instruct the jury that appellees were entitled to recover, which instruction, of course, alone was based on the fact that the road had been abandoned.

We find no merit in the other contentions of the board and do not deem the questions raised of sufficient importance to require a discussion by the court.

Affirmed.