Mississippi State Highway Commission v. Patrick
Mississippi State Highway Commission v. Patrick
Opinion of the Court
This action originated in the Chancery Court of Rankin County, Mississippi, in which appellees filed an
The Highway Commission filed a general demurrer to the bill, alleging that ‘ ‘ There is no equity on the face of the bill.” The chancellor entered an order overruling the demurrer, and granted an interlocutory appeal, based
Appellant, Highway Commission, alleges in its brief that “Antioch School was discontinued as an education center many years ago but Antioch Baptist Church continued to maintain a church building and a cemetery on the premises, with regular church services being conducted with a fully organized congregation as members of. the church. There is a well kept and maintained cemetery on the premises with a number of recent burials in the cemetery.” There was of course no proof to that effect, nor does the bill allege the foregoing statement of fact. The question argued by appellant as to whether or not the remainder of the property deeded to the trustees of Antioch Baptist Church is still being used for the purposes for which the land was deeded, and the question as to whether or not the use of the highway is an auxiliary use, the ingress and egress-, to the use and purposes for which the land was conveyed, namely: church, cemetery and school, is a question of fact. This question is not before this Court. The only question presented here is, Does the original bill state a good cause of action?
The bill states that the land has ceased to be used for school and church purposes, and although, from the description, it is apparent there-is a cemetery adjacent to the highway, there is nothing in the bill to show it is on the land deeded to the trustees of the church; or that the access to this cemetery is not available over the new highway. The bill simply says the land has been abandoned for the use for which it was conveyed to the trustees of the church.
A demurrer challenges the sufficiency of the bill and admits material facts well pleaded in the bill. Griffith’s Miss. Chancery Practice, (1st Ed.), § 288, p. 286.
We have pointed out in opinions heretofore that appeals from interlocutory orders, which do not settle all of the controlling principles involved, and which do not avoid expense and delay, should not be granted. Martin v. Reed, et ux, 232 Miss. 258, 98 So. 2d 765; Atwell Transfer Company v. Johnson, 239 Miss. 719, 124 So. 2d 861; Nash v. Winter, State Tax Collector, 235 Miss. 330, 109 So. 2d 336. Cf. McMahan v. The Adult Membership Boards of Phi Kappa Dusty and Debs Clubs, etc., 245 Miss. 83, 145 So. 2d 693; The Girod Company, Inc. v. R. C. Wilkerson, Inc., 246 Miss. 527, 151 So. 2d 195.
The order of the chancellor overruling the demurrer is therefore affirmed and the case is remanded for further proceedings in the chancery court.
Affirmed and remanded.
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