Appellee sued appellant in a justice of the peace court, the statement of her claim reading as follows:
"To use and occupation and damages, both actual and punitive, for parking, both day and night, on the driveway and yard at her store and filling station and home, at the intersection of Highway 49 and Camp Kickapoo Road, of 2 caterpillar road machines, 2 graders, 6 trucks and several automobiles, during the months of December 1939 and January and February, 1940, in the sum of $200.
"Plaintiff alleges that some representative of the State Highway Commission of Mississippi in December 1939, while said Commission was doing some highway work with its various machines above mentioned, near her store and filling station and home, located as aforesaid, requested permission to park their machines for one night only on said driveway and yard, to which she consented, but when they continued to bring them there night after night she protested promptly, and insisted on their not parking any of said machinery there any more, for the reason that they proved an inconvenience, annoyance and nuisance to her, and interfered seriously with her operation of her store and filling station efficiently and satisfactorily, and in addition the machinery was so heavy that after a rain it would make ruts in the driveway and yard, but plaintiff alleges that although she protested to the men in charge of said machinery and wrote three letters to Commissioner Roebuck, who ignored them, that they continued to park them on her driveway and yard over her protest for a period of about three months, and she was a helpless widow and unable to force them to stop parking there, with the result that during said time it rained a good deal and said heavy machinery cut big ruts in her driveway and yard, and they blocked the light from her windows, and disturbed her with their noises and, in fact, were a general nuisance to the extent that said wilful, and unlawful trespasses affected her health and made her sick and very nervous and unable to attend to her business properly.
"Wherefore, plaintiff alleges that the State Highway
Commission of Mississippi, by reason of said unlawful trespasses over her repeated protests on her driveway and yard, at her house and by reason of the actual damage done to said driveway and yard, and of the nuisance of having them parked there every night and taken away every morning greatly inconveniencing and annoying her daily and nightly, and making her sick and on account of the wilful wrong involved became indebted to her for use and occupation and damages, both actual and punitive, in the total sum of $200.00 together with all costs."
From an adverse judgment appellee appealed to the county court of Hinds County. Here appellant demurred to the declaration, which demurrer was overruled, and, appellant declining to further plead, a final judgment was entered against appellant for $100, which judgment, on appeal by appellant, was affirmed by the circuit court, from which judgment this appeal is prosecuted. The amount of the damage was fixed by agreement of the parties and we do not know the elements thereof, but the arguments on this appeal are based alone upon land damage, and in this opinion we only deal with such damage.
Appellant, in its brief in chief, raises, but does not press, the failure, as it asserts, of the declaration to state that the parking of the machinery was by authority of appellant. Aside from the laxity of formal pleading indulged in the justice of the peace courts, we think the statement of the claim, looking through the form to the substance (Smith Co. v. Jones, 75 Miss. 325, 22 So. 802), and taken in its entirety and fairly interpreted, does state that the parking was with the knowledge and authority of appellant. It alleges the commission was doing highway work near her home, using this very machinery on that work, and that representatives of the commission in charge of the machinery brought it to her home, and requested permission to leave it one night, which was granted, and that she thereafter orally protested such parking, and she wrote three letters to one of the commissioners also protesting such parking, without a reply.
This parking continued for some three months, day and night, when the machinery was not being used on this work. The demurrer admits these statements, and others of the claim bearing on this question, are all true. Now, just as a matter of common sense, can it be reasonably said that this quantity of large machinery could be so parked for three months, while being constantly used by the commission on the public highway, without the knowledge and consent of the person in charge of the operations, who would possess implied, even though he did not have actual, authority to arrange for the parking of the machinery?
In addition, one of the commissioners had actual knowledge of such parking and heeded not the protest against it, thereby approving such acts.
On the fundamental question of liability, appellee contends that under the stated circumstances appellant is liable to her under Section 17 of the Constitution of Mississippi, properly construed in connection with the various provisions of the Highway Department laws of the state. The able attorney general in his brief for appellant states the proposition in these words: ". . . his (counsel for appellee) suit is not based on a contract and he has no right of action in tort, unless that tort be a trespass which is actionable under the self-executing provisions of Section 17."
Section 17 of the Mississippi Constitution provides: "Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; . . ."
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Appellee sued appellant in a justice of the peace court, the statement of her claim reading as follows:
"To use and occupation and damages, both actual and punitive, for parking, both day and night, on the driveway and yard at her store and filling station and home, at the intersection of Highway 49 and Camp Kickapoo Road, of 2 caterpillar road machines, 2 graders, 6 trucks and several automobiles, during the months of December 1939 and January and February, 1940, in the sum of $200.
"Plaintiff alleges that some representative of the State Highway Commission of Mississippi in December 1939, while said Commission was doing some highway work with its various machines above mentioned, near her store and filling station and home, located as aforesaid, requested permission to park their machines for one night only on said driveway and yard, to which she consented, but when they continued to bring them there night after night she protested promptly, and insisted on their not parking any of said machinery there any more, for the reason that they proved an inconvenience, annoyance and nuisance to her, and interfered seriously with her operation of her store and filling station efficiently and satisfactorily, and in addition the machinery was so heavy that after a rain it would make ruts in the driveway and yard, but plaintiff alleges that although she protested to the men in charge of said machinery and wrote three letters to Commissioner Roebuck, who ignored them, that they continued to park them on her driveway and yard over her protest for a period of about three months, and she was a helpless widow and unable to force them to stop parking there, with the result that during said time it rained a good deal and said heavy machinery cut big ruts in her driveway and yard, and they blocked the light from her windows, and disturbed her with their noises and, in fact, were a general nuisance to the extent that said wilful, and unlawful trespasses affected her health and made her sick and very nervous and unable to attend to her business properly.
"Wherefore, plaintiff alleges that the State Highway
Commission of Mississippi, by reason of said unlawful trespasses over her repeated protests on her driveway and yard, at her house and by reason of the actual damage done to said driveway and yard, and of the nuisance of having them parked there every night and taken away every morning greatly inconveniencing and annoying her daily and nightly, and making her sick and on account of the wilful wrong involved became indebted to her for use and occupation and damages, both actual and punitive, in the total sum of $200.00 together with all costs."
From an adverse judgment appellee appealed to the county court of Hinds County. Here appellant demurred to the declaration, which demurrer was overruled, and, appellant declining to further plead, a final judgment was entered against appellant for $100, which judgment, on appeal by appellant, was affirmed by the circuit court, from which judgment this appeal is prosecuted. The amount of the damage was fixed by agreement of the parties and we do not know the elements thereof, but the arguments on this appeal are based alone upon land damage, and in this opinion we only deal with such damage.
Appellant, in its brief in chief, raises, but does not press, the failure, as it asserts, of the declaration to state that the parking of the machinery was by authority of appellant. Aside from the laxity of formal pleading indulged in the justice of the peace courts, we think the statement of the claim, looking through the form to the substance (Smith Co. v. Jones, 75 Miss. 325, 22 So. 802), and taken in its entirety and fairly interpreted, does state that the parking was with the knowledge and authority of appellant. It alleges the commission was doing highway work near her home, using this very machinery on that work, and that representatives of the commission in charge of the machinery brought it to her home, and requested permission to leave it one night, which was granted, and that she thereafter orally protested such parking, and she wrote three letters to one of the commissioners also protesting such parking, without a reply.
This parking continued for some three months, day and night, when the machinery was not being used on this work. The demurrer admits these statements, and others of the claim bearing on this question, are all true. Now, just as a matter of common sense, can it be reasonably said that this quantity of large machinery could be so parked for three months, while being constantly used by the commission on the public highway, without the knowledge and consent of the person in charge of the operations, who would possess implied, even though he did not have actual, authority to arrange for the parking of the machinery?
In addition, one of the commissioners had actual knowledge of such parking and heeded not the protest against it, thereby approving such acts.
On the fundamental question of liability, appellee contends that under the stated circumstances appellant is liable to her under Section 17 of the Constitution of Mississippi, properly construed in connection with the various provisions of the Highway Department laws of the state. The able attorney general in his brief for appellant states the proposition in these words: ". . . his (counsel for appellee) suit is not based on a contract and he has no right of action in tort, unless that tort be a trespass which is actionable under the self-executing provisions of Section 17."
Section 17 of the Mississippi Constitution provides: "Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; . . ."
Chapter 122, Sec. 4989 et seq., Code of 1930, provides for an elaborate state-wide public highway system to be administered by three commissioners, a highway director, a chief engineer, secretary and other employees. The main object is to lay out, construct, alter, and keep in repair a comprehensive network of public highways throughout the state. It is a matter of common knowledge
and public record that it has taken over, altered, changed, repaired, located, relocated and constructed thousands of miles of such highways and has expended millions of dollars for such purpose. To accomplish this, there must needs be many contacts and negotiations between appellant and private owners of lands. It is also necessary that the commission should have, and it does have, extensive and far-reaching powers. It has the power to acquire and hold title to rights-of-way and other property to fulfill its functions. It may so acquire by contract, purchase, gift, or otherwise, such property. It has the power of mandamus and eminent domain. It is expressly enjoined by the law "so far as possible, all rights-of-way shall be acquired or contracted for before any route is definitely located," thereby recognizing that methods other than those named might be used in acquisition of such property. It has power to acquire, use and operate all machinery and equipment necessary for doing its work. The law expressly enjoins that it "shall use diligence to protect growing crops and pastures, and to prevent damage to any property not taken," thus recognizing that damage other than the actual taking of title might be caused. And to perform its functions, the commission has the power "to authorize the employees of the state highway department to enter upon private property for such purposes." And for all of the foregoing, and other necessary, things it has the power to pay out of the "construction fund." Sec. 4998, Code 1930.
It is a body corporate with the right to sue and be sued, and arrange for the care and housing of its machinery and equipment. Sec. 5006(c), (p), Code 1930.
Appellant cites and relies upon the cases of Pearl Realty Company v. State Highway Commission, 170 Miss. 103, 154 So. 292; Stewart v. State Highway Commission, 166 Miss. 43, 148 So. 218; State Highway Commission v. Knight, 170 Miss. 60, 154 So. 263; and Stephens v. Beaver Dam Drainage District, 123 Miss. 884, 86 So. 641.
The Realty Company case involved the validity of a
three-year lease of office space when the commission had only authorized a two-year lease. It is not in point here.
The Stewart case involved the liability of the commission for personal injuries to plaintiff resulting from an automobile collision alleged to have been caused by the negligence of an employee of the commission, and, likewise, is not in point here.
The Knight case is perhaps the strongest case to be found in this state in support of appellant's contention. In the opinion of the writer, it went the extreme limit in holding non-liabilty on the part of the Highway Department, but it is readily distinguishable from the case at bar. The action there was for damage to land of plaintiff, situated some three-eights of a mile from the highway, caused by the digging of ditches by the commission "on each side and parallel with this highway, which changed the channel of the creek, carried the water thereof a short distance from the place where it formerly crossed the highway, and discharged it again into Barlow creek, causing, according to the evidence for the appellee, an increased and more rapid flow of water in Barlow creek, resulting in its overflowing its banks and spreading out over a portion of the appellee's land." The case reiterated the formerly announced rules that (1) "in the absence of a statute so providing, a public corporation created in invitum and supported by taxation is not liable for damages caused by the negligent acts of its officers and agents; their negligent failure to discharge a duty imposed on the corporation by law;" (2) the doing of unauthorized acts, and (3) the negligent doing by them of authorized acts, and denied liability because "a suit against it will lie only for liability imposed by a statute." But the court then said, "The effect here of section 17 of the Constitution was discussed, among other cases, in Stephens v. Beaver Dam Drainage District, supra."
Turning to the Stephens case, we find it was an action for damage to lands of plaintiff alleged to have been caused by the negligence of the district in so digging one
of its ditches as to cause the water to run the wrong way and to collect and pond on appellant's land. The court held that there was no special statute authorizing recovery and that Section 17 of the Constitution did not impose liability for "unauthorized" acts of the officers and agents of the district.
Thus it is seen that both the Knight and the Stephens cases are based upon negligence and lack of authority of the agent.
In the case at bar, there is no question of negligence or unauthorized acts — no negligence because it is not claimed the vehicles were not properly parked, or the damage was enhanced by negligent parking, and we have hereinbefore decided the declaration shows the parking was by authority of the appellant. That such parking was a wrong against the rights of appellee is true, but such wrong does not relieve the commission of liability. Suppose the commission, without agreement with or permission of the landowner, and without resort to eminent domain, should construct a highway across privately owned lands, would the wrong relieve it of the duty to pay for the lands so taken?
But the acts in the case at bar are fundamentally different from the Knight and Stephens cases in another vital respect. The parking of this machinery was during the course, and a necessary part of, or a reasonably essential incident, or convenience, to, the work then being done. The machinery must needs be parked somewhere. The commissioners evidently thought that parking at this particular place was conducive to the efficient and economic performance of the work. It could not be parked on the public highway. It is not to be supposed that the commission owned parking lands along and adjacent to the route of construction, or repair, as the work progressed. The fact that it was parked on appellee's property shows that it did not so own. Naturally, it requires considerable space on which to park this heavy, cumbersome machinery. Naturally also, time, economy, expense, and
the blocking of public traffic, prevented its being driven over the public highways back and forth, morning and evening, from and to the place of work to some central distant parking place owned by the commission, had it owned such place.
Appellant's contention, simply stated, is that, while it had the right and power and it was its duty to arrange by contract with this lady for the use of her property for parking purposes, yet, having refused to do that, and having used the property and damaged it over her protest, this very wrong relieves it of the duty to pay her. Under that logic, it would be greatly to the financial advantage of the commission to always refuse to negotiate, or follow legal procedure, in taking the property of individuals. Can it be correctly said that the Highway Department, during the course and as an essential part of its work, can run its machinery into the yards and at the homes, over the protest of the home-owners of the state, damaging their land, and not be required to pay for such damage? That is this case in a nutshell.
In Thompson v. City of Philadelphia, 180 Miss. 190, 177 So. 39, 40, plaintiff sued the city for damages because of sewer disposal through and over his land, resulting in offensive odors, pollution of water for livestock and other purposes, and damage to his lands. The city obtained an instruction denying the right of the jury to find for the plaintiff unless it believed the damage resulted from the negligent construction and maintenance of the sewerage system. The court held, "Section 17 of the Constitution is controlling; it provides, among other things, that `private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof;' and it applies to the state, as well as all of its political subdivisions, including municipalities, and regardless of whether the taking or damaging is in the exercise of governmental action or not," citing numerous cases. Further, ". . . liability does not depend on improper construction and maintenance. The
city is liable for any special and different damage suffered by appellants, not common to the general public, caused by the construction and maintenance of its sewerage system whether properly constructed and maintained or not. In other words, the liability under section 17 of the Constitution is not dependent on negligence but on the taking or damaging."
The case of Parker v. State Highway Commission, 173 Miss. 213,162 So. 162, in principle, is analogous to the case at bar. That was an action to recover damages resulting from the raising of the highway and the cutting of a ditch beside it in front of the residence of plaintiff, rendering (according to the declaration) ". . . it impossible for plaintiff to enter his premises from the front with any kind of vehicle or to park any kind of vehicle in front of his said premises, and has made a dangerous pitfall immediately in front of his premises, and has taken part of his right, title and interest in said property, and has otherwise injured and damaged his said property . . ." It was there contended, as here, that no statute existed permitting recovery and that Section 17 of the Constitution was not applicable; that the property of plaintiff had not been taken or damaged within the meaning of that section. The Knight case was the main reliance of the commission there. Referring to the various provisions of the Highway Act, the court said: "We say here that by implication the statute authorized the payment not only of compensation for the land, but for damages as well, and conferred all the powers embraced within the eminent domain chapter upon the state highway commission. But, if we should be mistaken in this view, section 17, Constitution of 1890, is self-executing. Prior to the adoption of this Constitution the Legislature could limit a landowner's recovery to compensation for the land appropriated for public use, but as section 17 now exists it is quite clear that any effort on the part of the Legislature to shield the government or any arm thereof from payment of damages occasioned by it on
the appropriation of land would be futile and of no effect. Before our Constitution was adopted, sections similar to the one here under consideration had been construed by the courts of other states as being self-executing. Section 17 of the Constitution is mandatory." The opinion cites a number of authorities in support of that statement. The court further said, "The common-law remedy existing in favor of the property owner for damages to his property, beyond the appropriation thereof, is clear in this case. The Legislature has granted the highway commission in express terms the right to sue and to be sued."
It would be a mockery for the Constitution to guarantee a right to the property owner, and a duty on the taker thereof, and leave the enforcement of both dependent upon the legislative will. Section 24 of the Constitution provides, "All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay." One of the foundation pillars of our system of government is the right of private ownership of property and to the possession and lawful use thereof; such right is essential to the liberty and freedom of a people. "The prime object of the Bill of Rights is to place the life, liberty, and property of the citizen beyond the control of legislation, and to prevent either Legislatures or courts from any interference with or deprivation of the rights therein declared and guarantied, except upon certain conditions." Swift Company v. City of Newport News,105 Va. 108, 52 S.E. 821, 824, 3 L.R.A. (N.S.) 404.
It is not necessary for us to decide whether the various provisions of the highway laws afford remedy to this wronged landowner. Section 17 of the Constitution guarantees the right and it is self-executing and is applicable to this case.
Affirmed.