Willmut Gas & Oil Co. v. Covington County
Willmut Gas & Oil Co. v. Covington County
Opinion of the Court
This suit was brought in the Chancery Court of Covington County, by Covington County, appellee herein, against appellants Willmut Gas and Oil Company, hereinafter referred to as Willmut, and United Gas Pipeline Company, hereinafter referred to as United, and also against other defendants who have not appealed. The purpose of the action was to cancel certain alleged clouds on the title to sixteenth section school lands asserted by the defendants, to confirm the State’s title as trustee, and to recover damages against Willmut and United resulting from the construction of a natural gas pipeline across the sixteenth section, and a reasonable rental for the use of the right-of-way, and to enjoin its further use.
The parties stipulated the relevant facts. For purposes of presenting the issues involved, they may be summarized as follows: The title to the sixteenth section in question, located in Covington County, Mississippi, is vested
In 1932 Public Service Corporation of Mississippi, hereinafter referred to as Public Service, constructed an eight-inch pipeline for the transmission and distribution of natural gas as a public utility across this section. This pipeline has been used continuously until the present date as a facility of a public utility distributing natural gas. Public Service purchased right-of-way deeds from all persons who were transferees and assignees of Odom under the 99-year lease. Since 1932 natural gas has been continuously transmitted through this pipeline and is available to municipalities in the adjoining area. From 1932 until February 20, 1934, Public Service continued to operate this gas pipeline, and appellee in this suit is not claiming any damages for Public Service’s actions during this period. Public Service was adjudicated a bankrupt, and on February 20, 1934 its assets were sold to appellant, Willmut. At that time Willmut took possession of this gas pipeline across the sixteenth section in question, and used and operated it for the stated purposes until August 20, 1943, when Willmut conveyed it to United. Since that date, United has continued to use and operate it.
It was stipulated that ‘ ‘ no trees thereon have been cut, clearing having been completed by Public Service. ’ ’ Neither the state nor appellee county has received any cash consideration for such right-of-way. The only consideration paid was that paid by Public Service to the persons claiming as assignees from the 99-year lessee, Odom. These persons executed right-of-way deeds to Public
It was further stipulated that solely for the purpose of this suit, the sum of $30 was a reasonable amount for the use of this sixteenth section for pipeline purposes for each year, and a proportionate amount for each fractional year, but that the board of supervisors of the county has not made any order as to the amount of the rental. In Covington County, the pipeline crosses five of the forty-acre governmental units in this sixteenth section. None of the land is used for any purpose except for agriculture, and “the reasonable cost per annum for a right-of-way across the said land is $10 per forty, or fractional forty, if Covington County has the lawful authority to exact any cash compensation whatsoever.” Public Service, Willmut, and United have each regularly paid annual ad valorem assessments on the pipeline, except where the same was exempt from taxation, which taxes have been collected by the county. When Public Service constructed the pipeline, no demand for rental was made by appellee or by the State, nor was any demand made upon Willmut or United until October 11, 1951, when this suit was filed. During this period, Public Service, Willmut and United have in good faith claimed a right-of-way from the state across these lands under the conveyances from assignees of the 99-year lessee, and under Miss. Code 1942, Sec. 2780, which is discussed subsequently. It was stipulated that the case could be tried on the pleadings, exhibits, and the agreed statement of facts. No testimony was taken.
The final decree confirmed the title of the State as trustee for the township schools to the sixteenth section,
Appellants contend that the chancery court erred in its final decree because Code of 1942, Sec. 2780, was a self-executing conveyance to them and to their predecessor Public Service of a right-of-way across this sixteenth section without the requirement of any compensation; and that the consideration for which the State by Sec. 2780 made this grant of a right-of-way was that appellants made available to the State and its citizens natural .gas and its accompanying benefits. Code Sec. 2780, as amended by Miss. Laws of 1950, Chap. 358, provides:
“All companies, associations of persons, municipalities, associations of municipalities, or natural gas districts, incorporated or organized for the purpose of building or constructing pipe lines and appliances for the conveying and distribution of oil and gas or for the purpose of constructing, maintaining and operating lines for transmitting electricity for lighting, heating and power purposes, are hereby empowered to exercise the right of eminent domain in the manner now provided by law, ancl to build and construct the said pipe lines and appliances along or across highways, waters, railroads, canals, and public lands, above or below grounds, but not in a manner to be dangerous to persons or prop*627 erty, nor to interfere with the common use of such roads, waters, railroads, canals and public lands. The board of supervisors of any county through which any such line may pass, shall have the power to regulate, within their respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county and all such companies, associations of persons, municipalities, associations of municipalities or natural gas districts shall be responsible in damages for any injury caused by such construction or use thereof.” (Emphasis added.)
This statute granted to Public Service and to appellants the right to build and construct a pipeline across “public lands.” And “public lands” includes sixteenth section school lands. Chap. 11, Title 17, Yol. 3 of the 1942 Code, is entitled “public lands.” And Sec. 4070 in effect includes sixteenth section lands in the category of public lands. We think that the legislature in the use of the phrase “public lands” in this statute intended the same to include sixteenth section lands. Compare U. S. v. Bisel, 19 Pac. 251 (Mont. 1888); Union Pacific Ry. Co. v. Douglas Co., 31 Fed. 540 (U. S. C. C., Neb. 1887); State v. Cumberland Tel. & Tel. Co., 27 So. 795 (La. 1899).
The purpose which the legislature evidently had in granting to public utilities such as appellants the right to construct its pipelines across sixteenth section lands is consistent with other analogous legislative grants. Code Sec. 5525 provides that all associations and corporations formed under the Rural Electrification Act are authorized to construct electric lines over unimproved sixteenth sections, and that this shall be without payment to the State for that easement. By Code Secs. 7723 and 7737 railroads are given the power to enter upon, acquire, and use a right-of-way across any lands belonging to the State. Code Sec. 7837 provides that all telephone and telegraph companies authorized
Gandy v. Public Service Corporation of Miss., 163 Miss. 187, 140 So. 687 (1932), held that appellants’ predecessor in title, the appellee in that case, was such a corporation as was' empowered to exercise the right of eminent domain granted it by Sec. 2780 over privately owned lands. It further held that “the plain purpose of the statute is to encourage such enterprises”; and that the supplying of gas to the public for heating and power purposes is such a public convenience as justified the granting to Public Service of the right of eminent domain. The court said that the statute as enacted at that time erroneously omitted the conjunctive “and” before the phrase “to build and construct” and that it granted the right to condemn private property. Infer entially Gandy indicated, as we now hold, that the statute made a grant of the right to cross public lands, subject to certain restrictions. Miss. Power Co. v. Sellers, 160 Miss. 512, 133 So. 594 (1931), held that Code of 1930, Sec. 1506, being Code of 1942, Sec. 2778, applied to Mississippi Power Company, and that which is presently Sec. 2780 had no application, “. . . but
Hence Sec. 2780 grants to the designated public utilities a right to cross public lands, including sixteenth sections. However, it also imposes certain important restrictions and limitations upon that right. The construction of the pipeline must not be in a manner dangerous to persons or property, nor such as to interfere Avitli the common use of public lands. And the last sentence of that section provides: "The board of super-A-isors of any county through which any such line may pass, shall have the power to regulate, within their respective limits, the manner in which such lines and appliances shall be constructed and maintained on and above the highways and bridges of the county and all such companies, associations of persons, municipalities, associations of municipalities or natural gas districts shall be responsible in damages for any injury caused by such construction or use thereof.”
The first clause of this provision gives the board of supervisors the power and the duty to regulate the manner in which the pipeline shall be constructed and maintained, and in this respect the above quoted statement from Miss. Power Company v. Sellers is relevant. The succeeding phrase, "on and above the highways and bridges of the county,” does not, we think, exclude the existence of that power of the board of supervisors as to "public lands” precedently referred to in the statute.
Permits or licenses to cross the surface, leasehold estates of the 99-year lessees were properly and necessarily acquired from those lessees. But they owned only a tenancy for years, with such right, title, and use as went with that kind of an estate. Bernard v. Board of
Sec. 2780 places other restrictions and limitations upon the construction and maintenance of pipelines across sixteenth section and other public lands. The company owning the same “shall be responsible in damages for any injury caused by such construction or use thereof.” In other words, if in the construction of the pipeline or in its use damages are caused either to the lessee’s estate or to the owner’s and landlord’s estate of the State as trustee, the company is responsible to the lessee or State acting through its subdivision the county for such damages. But no issue of damages in the construction of the pipeline arises here. Public Service, which built it, became bankrupt in 1934. And it is stipulated that no trees have been cut. The clearing of the right-of-way was completed by Public Service. It is further stipulated that at this time appellee is not claiming any damages for the construction of the pipeline by Public Service. Hence the issue of damages for that item is not now involved.
The last quoted clause in the statute also provides “that the company owning the pipeline shall be responsible in damages for any . . . use thereof.” Miss. Constitution 1890, Sec. 211, as it existed at the time of the construction of the pipeline, and as it is now under the 1942 amendment, states that the legislature
Appellants rely on such cases as Washington County v. Board of Levee Commissioners, 171 Miss. 80, 156 So. 872 (1934), and Covington County v. State Highway Commission, 188 Miss. 274, 194 So. 743 (1940), which upheld the right of the State itself to impose an additional public use upon sixteenth section lands without additional compensation. Compare Crary v. State High
Somewhat similar to the instant case is Yazoo & M. V. R. R. Co. v. Sunflower Co., 125 Miss. 92, 87 So. 417 (1921). Sunflower County sued the railroad to cancel its claim to fee title of a strip of land across a sixteenth section upon which the railroad had its right-of-way, and to recover a reasonable rental for that strip. It was held that the grant of the right-of-way to the railroad by an 1882 statute did not go into effect until the actual location of the riglit-of'-way, and that, since this did not occur until after the 1890 Constitution went into effect, Constitution Sec. 211 prohibited a grant to the railroad of a fee simple title to the strip. When the railroad constructed its line, it obtained from the county a lease for seven years. All it could acquire was the leasehold right for that limited time, and on the date of the suit, this leasehold right had expired. The Court said that the railroad having continued in possession after expiration of its lease, it was liable to the county for “the reasonable value for the use of the right-of-way for the years subsequent to the expiration of the lease, and the chancellor’s finding as to the value of the use of the right-of-way is supported by the evidence and his judgment will be affirmed.” In affirming the decree allowing the county a reasonable rental for the sixteenth section right-of-way, the Court said in effect that this was necessary because of the provision of Constitution Secs. 211 and 95.
In Yazoo and M. V. R. R. Co. v. Bolivar County, 146 Miss. 30, 111 So. 581 (1927), the county sued in equity
In summary, we hold that Sec. 2780 granted to Public Service and its successors, the appellants, a right-of-way only, being a revocable easement, over public lands, including the sixteenth section in question. However, this grant is subject to the restrictions stated in that statute, and among them is the requirement that the companies owning the pipeline, the appellants, are responsible in damages for any use of the right-of-way. That responsibility, in order to comply with Constitution Secs. 95 and 211 means that the pipeline companies must pay a consideration, either at one time or in installments of rent, for their right-of-way. In the present case the parties stipulated an annual rental up to the date of the suit. The final decree was based on that stipulation, and we affirm the decree adjudicating that appellants are indebted to appellee for such reasonable rental. In view
We confine our decision to that necessary to be decided. We consider only the application of Sec. 2780 and Miss. Constitution Secs. 95 and 211 to a pipeline right-of-way over sixteenth section lands. We do not consider any question with reference to the application of Sec. 2780 and these constitutional sections to public lands other than school lands.
Affirmed as modified.
Dissenting Opinion
dissenting in part.
I concur in the majority opinion except that I do not think the county has any right to collect rent, or compensation, for use of the easement. Section 2780 does not, by its terms, contemplate such payment in my opinion. It imposes upon public utilities the obligation to pay “damages for any injury caused by such construction or úse thereof.” Only “damages” can be collected and damage is not a word applicable to liability for rent. It has reference to destruction of, or injury to, fences, houses, improvements, etc., occasioned by construction of lines by public utilities. Indeed, if annual rent is to be paid, then the easement is converted into a tenancy from year to year.
Section 95, Mississippi Constitution of 1890, prohibiting donations of public lands by the legislature, does not require money payment consideration to comply with that section. Inducement to enterprises, serving the public, to locate within this State is sufficient considera
An important practical question is involved here. Such a question, I realize, cannot change legal rights, but it is proper to weigh results in trying to determine the intent of the legislature and the effect of its enactments. That question is this: The result of this decision, in my view, will create chaos and utter confusion in this State. All of these utilities acted upon Section 2780 and like statutes in construction of railroads, telegraph, telephone and power lines and in the laying of gas and oil lines. None of the statutes expressly require payment of rent to the State for an easement over public lands. Indeed, Section 5525, Mississippi Code 1942, conferring power upon REA to construct electric power lines across public lands, expressly provides this may be done “without payment to the State for said easement.” The other statutes, in effect, do the same thing by not expressly requiring money payment for such right. No utility paid such money rent. The records disclose that the State now owns approximately 710,000 acres of school and lieu lands and 950,000 acres of other public lands, a total of over one and a half million acres of public lands. When many of the utility lines were constructed the State owned considerably more than the stated amount of non-
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