Board of Levee Commissioners v. Dancy
Board of Levee Commissioners v. Dancy
Opinion of the Court
delivered the opinion of the Court.
In this state “ due compensation first being made ” is a precedent condition of the appropriation of private property for public use, and whatever may be allowable, “ Where the state or any of its sub-divisions is concerned in the appropriation,” as held in Cage v. Trager, 60 Miss., 563, it is not true that the owner may be paid the price of his property by a requirement that he shall initiate proceedings for compensation against a corporation which is not the state or one of its sub-divisions, and against which it is said and truly, no personal judgment can be rendered, but only an award of a sum of money, without execution to enforce it. The land not having been secured before
The owner may lose his title by lapse of time long enough to bar its assertion, but cannot be compensated for his property .by an opportunity to litigate to secure “ due compensation ” for ut, however long the time allowed him for that.
' Obtaining by grant from the owner, or by adverse possession, long enough to bar his claim to the property, or condemning and paying for it, are the only modes of obtaining private property for public use in this state; and no act which •devolves on the owner the duty of initiating proceedings for -compensation for his property, as the condition of his obtaining it is allowable. He cannot be required to become an actor under the penalty of losing his property and “ due compensation ” for it, if he shall not. He may enjoy his own, secure under constitutional guaranty, until an inquest by public authority determines that it is required for public use, and fixes •the price to be paid Mm for the sale of it, and this price must be paid or tendered before his right can be divested, and a right to ask for compensation in three months or three years is not a valid substitute for the constitutional right to “ due compensation first being made.” The objection that the claim for compensation was not made in time is therefore not maintainable.
The appeal from the finding of the commissioners transferred the inquiry as to the sum to the jury for a retrial, and the .amount allowed by it might be greater or less.than that fixed by the commissioners. This results from an appeal given in general terms without any indication of a purpose to restrict ‘the meaning of the term.
We are unwilling to disturb the verdict for excessiveness, as the evidence is very conflicting and much of it supports the verdict.
The judgment against the appellant and surety on the appeal bond for costs is erroneous, and it is reversed and the appropriate entry may be made here.
Reference
- Full Case Name
- Board of Levee Commissioners for the Yazoo-Mississippi Delta v. Kate Dancy
- Cited By
- 12 cases
- Status
- Published
- Syllabus
- 1. Eminent Domain. Illegal taking. Statute barring compensation. Constitutional law. Case in judgment. In 1884 the Board of Levee Commissioners for the Yazoo-Mississippi'Delta caused a levee to be constructed across the plantation of D. without payment of damages for the land thus appropriated. In Mai;ch, 1886, the legislature passed an act, which took effect on the 16th of that month, ■declaring that all such claims for damages then existing against the Board of Levee Commissioners for the Yazoo-Mississippi Delta should be barred unless prosecuted within three months after the passage of that ■act. D. instituted 'proceedings to recover damages for the taking of her land, in August, 1886, and the Board of Levee Commissioners pleaded the statute referred to as a bar to any recovery by her. To this plea a demurrer was filed, which was sustained by the court below. Held, that the demurrer was properly sustained. The act of the legislature, providing as the contingency for - the divesture of title in such case the failure ■of the land owner to initiate proceedings to recover compensation within three months (or any other period), was in violation of Article 1, Section 10, of the State Constitution, which provides that “private property shall not be taken for public use except upon due compensation first being made to the owner or owners thereof, in a manner to .be provided for by law.” 2. Same. Appeal from decision of commissioners to jury. Scope of inquiry for jury. Where a statute, providing for the ascertainment of damages for the taking of private property for public use by the award of commissioners appointed by the Clerk of the Chancery Court, authorizes an “appeal” .to a jury of the Chancery Court, without any indication of a purpose to restrict the meaning of the term, the jury may assess the damages at a greater or less amount than that allowed by the commissioners, whether' in favor of or against the party appellant, and whether the appellant be the land owner or the corporation. 3. Same. Appeal to Chancery Court. Judgment for damages against surety for costs. It is error for the Chancery Court to render judgment against the surety on an appeal bond, given to secure costs of an appeal to such court, from the award of commissioners appointed to'assess damages for the taking of private property for public use, for the amount of damages assessed by the jury in that court.