In order to get the contentions clear, I will state the substance of the declaration. The declaration alleged that the board of supervisors of Noxubee county, Miss., did in the year 1919 abandon and discontinue the road in said county and state known as the World's Ferry Road; said road beginning at Ash creek and continuing to *Page 84 World's Ferry, and being known and designated as Road Link No. 11 of said Noxubee County, Miss. Plaintiff alleged that this order does not show upon the minutes of the said board of supervisors of Noxubee County, Miss., but was passed by them at their November or December, 1919, meeting. It is then alleged that on the ____ day of January, 1921, the board of supervisors in regular meeting of said board did adopt an order, a copy of which is attached to plaintiffs' bill, and asked to be considered as a part thereof, to which reference is made as often as is necessary for the purpose of identification and is marked "Exhibit A." Said order shows the appointment of road overseers for the county for said year, and that no overseer was appointed for said Road Link No. 11, but that said road link was discontinued. This order shows on its face that the board was dealing with the appointments of road overseers for the different highways of the county, and that said board was not dealing with the propriety or necessity of abandoning or discontinuing the road. Three other exhibits to the bill of like tenor and effect show on their face that the board was not dealing with the subject of abandoning or discontinuing roads, but were dealing with the appointment of road overseers. The two things are entirely disconnected.
The plaintiffs' pleadings expressly state that the order of the board of supervisors was not entered upon the minutes of the board and the other orders were introduced merely as facts in the chain of evidence to show an abandonment in fact without an order being entered upon the minutes of the board. The admissions of abandonment referred to in the majority opinion were made under a misapprehension of the facts, all of which were shown to the circuit judge on motion for a new trial, and there is no change of the case from that made before the lower court, because, when an admission is made under a mistake of fact and is made manifest to the court before the case is finally concluded in the court, the court should set it aside where it is manifest that a wrong result has been reached in the trial, and it is strictly within *Page 85 the province of this court to review the action of the trial judge on the motion for a new trial seasonably made. Regardless of whether the admission was made under mistake, however, it should not go beyond the scope of the pleading, and the result of the majority opinion is to extend the admission beyond the scope of the declaration. The pleadings are construed most strongly against the pleader, and the express statement that the order was not entered upon the minutes must be taken as true, as there was no effort at any stage of the trial to amend the declaration.
In Smith v. Tallahatchie County, 124 Miss. 36, 86 So. 707, we held that a board of supervisors can only act as a body through its minutes; that its minutes are the exclusive evidence of what the board did; and that parol evidence is not admissible to show what action the board took. This case also involved a road jurisdiction of the board, and this doctrine has been repeatedly announced in this court throughout its history. Its minutes are the exclusive evidence of what the board did. The theory made by the declaration is a case of abandonment by nonuser and nonworking of the roads, and by acquiescence on the part of the board. This theory is wholly unsustainable. The only way that a board can legally abandon a public highway of a county is through a solemn order entered upon its minutes in an appropriate proceeding therefor.
In Morris v. Covington County, 118 Miss. 875, 80 So. 337, we held that an abutting landowner on a public highway in the country has a special property right in the easement and free uses of the public road for ingress and egress to and from his property, and that in order to deprive him of such rights the procedure must conform to that involved in taking private property for the public use. In 118 Miss. at page 881, 80 So. 337, the court said:
"The defendant below, Covington county, demurred to the declaration on the ground that the county had a lawful right to abandon its public road, and that such abandonment was not the taking or damaging of private property *Page 86 for public use, as there was no taking or damaging of private property within the meaning of the Constitution.
"The precise question has never been passed upon by this court. However, the principle involved seems to have been settled by this court. In City of Laurel v. Rowell, 84 Miss. 435, 36 So. 543, it is held that the abandonment or closing of an established street is a taking or damaging of private property for public use within the Constitution, and authorizing compensation to the abutting property owner. We think that the same principle should apply to the abandonment and closing of public highways in the county where abutting landowners are specially damaged by such discontinuance and abandonment by the county. The abutting landowner on a public highway has a special right of easement and user in the public road for access purposes, and this is a property right which cannot be damaged or taken from him without due compensation. The right of access is appurtenant to his land and his private property. To destroy this right is to damage his property.
"When a public highway is established, the abutting owner acquires a special easement therein in connection with his land for purposes or access to his premises, and this special easement is distinct, and is in addition to the right of user of the road, possessed by him as one of the general public for travel. `The right to a road or street which the landowner possesses as one of the public is different from that which vests in him as an adjoining proprietor, and it is also distinct and different from his rights as owner of the servient estate'" — citing 2 Elliott on Roads and Streets (3d Ed.), section 1180.
In Jackson v. Monroe County, 124 Miss. 264, 86 So. 769, the decision of this court is to the same effect.
In the case of City of Laurel v. Rowell, 84 Miss. 435, 36 So. 543, referred to in the Covington County Case, 118 Miss. 875, 80 So. 337, the proceeding was an injunctive proceeding wherein the property owner sought to restrain the city of Laurel from closing a street without *Page 87 notice and hearing and without paying compensation for damages to the property by reason of such closing. The prayer of the bill was that the city of Laurel and the Laurel Improvement Company, another property owner who had procured the street to be closed and had built a fence across each end of its property and erected some buildings on it, be enjoined from further meddling with the rights of the complainant, and be commanded to reopen and re-establish said street, and that the Laurel Improvement Company be required to remove all obstructions placed by it in said street. There was a motion to dissolve the injunction in that case, which motion was overruled and an appeal granted to settle the principles of the case. The court held in that case, on page 440 of 84 Miss., 36 So. 543, as follows:
"When people build on the side of, and with reference to, a public street, they acquire an easement in its free user by them and the public and in the resultant value of such user. This is property, and cannot be taken from them or damaged by closing the street, except upon compensation first paid. The closing of the street is a taking of the easement for the public use in the purview of our Constitution."
And at page 441 of 84 Miss., 36 So. 543, the court said:
"Countless oppressions of private citizens, too poor, too ignorant, or too humble to excite attention or enlist the advocacy of the influential, never see the sunlight of the courts of law. Many schemes which are hatched in `the perfumed chambers of the great' are feathered and winged in these councils, to the injury of the lowly and the poor. They must be held in with a tight rein at the bar of the people sitting in the persons of their judges in their solemn tribunals of justice. All the citizens of a town have the right to have their public thoroughfares, streets, or alleys, whether acquired by dedication or user, kept open for their own use and the use of visiting strangers who come for commerce or social intercourse. They should never be closed except when plainly for the public good, and cannot then be *Page 88 closed except upon compensation first paid for any damage to abutting proprietors."
In the record before us there is no evidence and no minutes of the board of supervisors to reflect that the board ever took into consideration the public necessity or convenience in closing the highway. It gave no notice of any such intention so far as the proof in the record shows, and it is not suggested that any such notice was ever given. It is insisted, however, that this is a matter entirely for the board, and that the citizen is limited to the recovery of damages, and that he has no right to a hearing upon the question of closing the road or highway. Such argument is squarely in the teeth of section 14 of the Constitution, which provides that no person shall be deprived of life, liberty, or property without due process of law. The citizen might not want the highway closed. The necessity in fact might not arise warranting its being closed. The citizen might be able fully to show that the closing of the highway would be a public calamity as well as a private injury to property owners having property abutting thereon. There is no right to act arbitrarily in the matter. It cannot be the law that the board of supervisors of one county can obstruct a highway or roadway of the county without notice to any one. The board must act upon reason, and its action must be a judicial action adjudging jurisdictional facts, and before the board adjudges these facts, some notice must be given to the abutting property owners and should be given to the general public.
It is contended that there is no authority for such notice. If that be true, then no road or highway can be discontinued until the legislature provides a procedure. But in my opinion section 4400, Code of 1906, Hemingway's Code, section 7080, may be construed as a statute providing a procedure. The words "altered or changed" in said statute are certainly broad enough to embrace the abandonment or discontinuance of a public highway, and in my opinion should be given that construction which *Page 89 would make it embrace a proceeding to abandon or discontinue a highway.
In Craft v. De Soto County, 79 Miss. 618, 31 So. 204, the court held that the board of supervisors in laying out and opening a public road exercised special statutory authority, and that it is essential to the validity of their proceedings that the jurisdictional facts appear of record.
Section 170 of our Constitution gives boards of supervisors jurisdiction over roads, ferries, and bridges, and I cannot see the difference in this constitutional jurisdiction and proceedings to lay out a public road, and the proceedings to abandon or discontinue a public road.
Our courts have generally held that the board minutes or records must show jurisdictional facts, and that an order made by the board without showing such facts is void. It seems to me that the present case is in direct conflict with the case of Craft v. De Soto County.
In Warren County v. Mastronardi, 76 Miss. 273, 24 So. 199, the court held in effect that the county did not abandon the road although the active use of the road or the active route of the road had been changed and the old way had not been used to any extent for a period of thirty years, and that the county had not acquired a new right of way by reason of the constant use of the new route and the nonuse of the old route, but that the right of way existed in the old route although not used during a long period of time.
Prior to the Constitution of 1890, abutting property owners had no right in the road that was recognized as a property right. At least such seems to be the effect of the decision in Nicholson v. Stockett, Walk. 67, but that case held that where there was a property right the Constitution required notice and a hearing. This case was contrary to practically the whole trend of judicial decision upon the rights of abutting property owners upon highways and streets. See 29 C.J. 523, section 234 et seq., and notes; 15 Am. Eng. Enc. L., p. 404 et seq. *Page 90
In the case of Hatch v. Monroe County, 56 Miss. 26, decided prior to the Constitution of 1890, the court held that the board of supervisors had a right to discontinue a public highway and to surrender the right of the public to use the same, but in that case, where the board made such order and reserved the right of way as a private way, the court held that the board could reopen the road for public travel without compensation to the property owner. The facts in that case are that on the 5th day of January, 1875, the board of supervisors of Monroe county passed an order relating to one of its highways as follows:
"Ordered that the Black Swamp Road, from Aberdeen to Dr. Ward's ginhouse, be discontinued as a public road, and that the overseer, J.B. Genber, be relieved from duty on said road; also, ordered that said road be kept open as a private right of way."
This road traversed a section of land belonging to Hatch, and after the passage of the foregoing order, she inclosed the road within her fields and cultivated it for agricultural purposes. On the 3d day of April, 1877, the board rescinded "so much of said order as discontinued said road as a public road." And on the 7th of August, 1877, the board appointed an overseer of the road, and assigned him hands for working the same. He proceeded to remove the fencing on the road, and to put it in condition for travel by the public; and the appellant, Hatch, enjoined the overseer and the board from opening the road. The court held that the board had the right so to do. That case is directly contrary to the result reached in the present case. In the Hatch case there was an order discontinuing the road as a public road. After making the order the board adjourned and more than two years thereafter reopened the road, and it is manifest that the power to do so was that the board had power to discontinue the working of the road and reserve the right of way. The road was not worked, yet it was not abandoned in the eyes of the law. In the present case the board merely discontinued working the road. Manifestly the *Page 91 right of way was left for the use of any person who saw proper to use it and keep it in repair. The evidence in the case before us was not predicated upon the difference of value of the place with the worked road and its value with an unworked right of way, but the evidence for the plaintiff proceeded upon the theory that there was a complete abandonment of the road and that it had reverted to the property owners abutting thereon. Some of the evidence for the plaintiff pertained to the cost of buying a right of way from their property for a public highway.
It is said in the majority opinion that the county was cut off because it obtained an instruction to the jury to find for the plaintiff for nominal damages, and that he could not shift his theory from a recognition of that right there to a denial of it here. The court ignored the fact that the court below refused the county the following instruction:
"The court instructs the jury for defendant that a public highway is the name given to the right of the public to travel over the lands of another. The right may be acquired by the public in either of the following ways: (1) By dedication; (2) by condemnation; (3) by user for ten years. And if the jury believe from the evidence in this case that any of the roads testified about in this case have been used by the general public for ten years or more, with a claim of right to go over said roads, then said roads are public highways and cannot be legally closed to the public by the owners of the land through which the road runs."
The court ignores the fact that the plaintiff had obtained a peremptory instruction for nominal damages and in addition any amount resulting from depreciation in the fair market value of the lands of the plaintiff by reason of the abandonment by the county of the World's Ferry Public Road through the lands of the plaintiff. In other words, after the plaintiff had obtained a peremptory instruction and the defendant had been refused the instruction set out above, which was its first instruction, it had a right to shape its case according to the law *Page 92 which the court below had ruled to be applicable, and it should not in any sense be regarded as an estoppel or as an adoption voluntarily of a legal theory. The record shows throughout that the county was contesting the plaintiff's right to recover damages, and inasmuch as the plaintiff was allowed damages for the right of way on the theory that the right of way had reverted to the property owners, and that consequently the plaintiff had no means of ingress and egress to and from his property, the judgment should be set aside and the case tried on the law.
Section 17 of the Constitution has wholly changed the right of the board of supervisors to discontinue a highway without a hearing and the payment of damages to the property owners. It certainly would be promotive of the public welfare to hold that the board could not discontinue and abandon a public highway without notice to the public, and I desire to call the attention of the legislature to the question so that some appropriate scheme for the protection of the public, as well as of the property owners abutting the highways, may be adopted.