Poythress v. Mobile & Ohio Railroad

46 So. 139, 92 Miss. 638

• Court: Mississippi Supreme Court
• Decided: March 15, 1908
• Status: Published

Opinion

Mates, J.,

delivered the opinion of the court.

Annotated Code 1892, § 2945 (Code 1906, § 8336), empowers the municipality to vacate any street, or alley, or any portion thereof. This controversy arose under the law as it stood under the Code of 1892; but, even if this were not the case, Pothress is not an abutting landowner upon this street, entitling him to have compensation first made to him before the closing of the street; within the meaning of Code 1906, § 3336, as he owns no property abutting the closed portion. Cram v. City of Laconia, 71 N. H., 41, 51 Atl., 635, 57 L. R. A., 282.

We are unwilling to hold that a municipality cannot dose a street, when in its judgment it is for the public good. In such case the individual right of the citizen must yield. The ordinance providing for the closing of this street was passed, as the ordinance declares, because the municipal authorities believed that the safety of the public demanded it. Under these conditions it was in the power of the municipality to order the street closed If the complainants have suffered any special damage by the closing of this street, not shared in by all the public, they have recourse against the municipality; but, in the meantime, it is within the power of the municipality to close the street, if in tbe judgment of the municipality it is dangerous' to pedestrians and others, and this can be done without interference toPoythress. To deny the municipality this right would be to-deny to it tbe power to exercise one of the most important protective duties that it owes to the public.

The ease of Laurel v. Rowell, 84 Miss., 435, 36 South., 543, is quite distinct from the case made by tbis record. Iu the case above cited it was not shown that there was any public necessity for the closing of the alley, and, the complainant in that case-being an abutting owner, the court said that the action of the-mayor and board of aldermen was unwarranted.

A ffirméd.