DISSENTING OPINION. I am unable to concur in the majority opinion. It recognizes, as under the adjudicated cases by this court it must recognize, (1) that appellant has a special property right in the old public road and is entitled to damage upon the abandonment and failure to maintain it; (2) that this is such a property right as is protected by Section 17 of the Constitution of Mississippi; (3) that this Section includes damage to as well as appropriation of private property and that no actual physical taking or invasion of private property is necessary to entitle the *Page 429 owner to damage; and (4) that the Highway Commission has heretofore paid for such non-actual taking damage out of its construction fund. These principles being established and admitted the only remaining questions are the amount of the damage and who is liable therefor.
As to the amount of damage this would be determined on the trial, or it may be that a road or outlet from appellant's home to the new highway can be acquired and constructed at small cost. She is entitled to either a road or damage.
As to who is liable, the demurrer admits the facts which are properly stated in the declaration. The declaration states, among other things, that the old road was taken over by the Highway Commission under an act of the legislature and that the commission "did destroy the old highway and public road as a public road . . ." and that the supervisors can not and are under no duty to "maintain said fragments and segments . . . of the old highway.
"The plaintiff further shows that she is left isolated on a segment or fragment of said old Highway No. 24 and McComb and Liberty public road, which fragment or segment is approximately three miles in length and on which live only two families, said segment or fragment partly located in Pike and Amite Counties.
"That there are four bridges located on said three mile segment, all of which have been condemned, and that in order to repair and/or reconstruct the bridges east of plaintiff's residence an expenditure of from ten to fifteen thousand dollars ($15,000.00) will be necessary."
It is true the declaration attaches as an exhibit thereto a copy of a resolution of the supervisors declining to maintain the road. It is suggested the resolution contradicts some statements in the declaration and that the exhibit controls, but in my view there is no contradiction material to the point under discussion. In other words, the declaration avers appellee took over and abandoned *Page 430 and refused to maintain the road. Regardless what may be the facts upon a trial, this declaration states a case against appellee, for neither the sovereign nor any department thereof is exempt from liability under said self-executing Section 17, which provides "private property shall not be taken or damaged for public use, except on due compensation being first made to the owner . . ." It may be that both the Highway Commission and the county are liable to appellant as were the county and municipality in the case of Tishomingo County v. McConville,139 Miss. 589, 104 So. 452, where the property owner was damaged by the lowering of the grade of the street in front of his property, the work being done by the county under agreement with the municipality. But, if so, this does not relieve appellee of liability. Appellant is helpless. She has no right to condemn, or go upon and construct, a road over the land of others. If and when she undertakes to hold the county liable it will likely say it is not liable because it turned over the old road under a mandate from the legislature and it had no discretion to do otherwise, and that the circumstances here are such that this is not a public but a private road and the supervisors would lay themselves liable for expending the public funds to maintain it. The test of liability as between the Highway Commission and the county may be that the Highway Commission is liable if the segment which is left of the old road cannot be maintained as a public road, and the county is liable if it can be, but is not, so maintained under a proper exercise of judicial discretion by the supervisors. But whatever the correct test is, as to which I express no opinion, this declaration states a case against the Highway Commission. The constitutional rights of appellant are in danger of being ground into dust between the upper and the nether stone.
Anderson, J., concurs in this opinion. *Page 431