SEPARATE OPINION. I concur in holding that the county court committed reversible error in admitting evidence of for what other owners of land, over which this highway passes, conveyed it, or a right of way over it to the highway commission, but I do not concur in holding that no other error appears in the rulings of the county court.
Two of the appellant's complaints are: (1) That the reservations to the owner of the land and limitations on the use to which the land can be put by the highway commission violate the governing statutes, and therefore his demurrer to the petition should have been sustained and the petition dismissed; and (2) the record does not disclose that the highway commission was unable to agree with the appellant on the price to be paid to the appellant for the land.
Whether these questions can be raised in an eminent domain proceeding begun in a county court depends on what is the procedure provided by statute for such courts in eminent domain cases.
Chapter 17, Code of 1930, provides for a county court in some but not all of the counties of the state. Section 1 (sec. 693) provides that it (the county court) "shall have exclusively the jurisdiction heretofore exercised by justices of the peace, in the following matters and causes, *Page 152 viz: eminent domain . . ." The jurisdiction exercised by justices of the peace in eminent domain proceedings is that conferred by Chapter 26 of the Code, so that the jurisdiction conferred on county courts in eminent domain matters is that and only that conferred on justices of the peace by Chapter 26 of the Code. By Section 696 of the Code, the procedure in the county court in eminent domain cases is that provided in Chapter 26 of the Code for justices of the peace in eminent domain proceedings. An exception to this appears in a proviso to Section 696 by which county courts are not confined, when instructing a jury in an eminent domain case, to the instructions to which justices of the peace are confined by Section 1491 of the Code. Mississippi State Highway Commission v. Reddoch et al., 184 Miss. 302, 186 So. 298; Mississippi State Highway Commission v. Hillman, Miss.,198 So. 565. Under Chapter 26 of the Code, when a petition is filed with the clerk of the circuit court of the county by a person or corporation authorized to exercise the right of eminent domain setting forth with certainty the right and describing the property sought to be condemned, the clerk designates a justice of the peace, who, together with a jury, drawn by the circuit clerk, the chancery clerk and the sheriff, constitute a court of eminent domain for the trial of the case, which court is authorized only to determine the value of the property to be taken and the damages, if any, resulting to the owner as a consequence of the taking. Section 1491, Code of 1930; Vinegar Bend Lumber Company et al. v. Oak Grove G.R. Company, 89 Miss. 84, 43 So. 292. On an appeal to the circuit court from a judgment of this special eminent domain court, the circuit court is also confined to fixing the compensation to be paid the owner of the land, except that if it does not appear from the face of the petition filed with the circuit clerk that the condemnor was "[entitled] to exercise the right of eminent domain," the clerk was without authority to convene the special court for its trial, and therefore the circuit court will dismiss the proceeding. *Page 153 Cumberland Tel. Co. v. Morgan, 92 Miss. 478, 45 So. 429. From this, it necessarily follows that a county court, in trying an eminent domain case, has jurisdiction only to determine (1) whether it appears from the petition that the petitioner is authorized to exercise the right of eminent domain, and if it does so appear, then (2) to determine the compensation to be paid by the condemnor to the owner of the land. The first presents an issue of law for the court to be raised by a demurrer to the petition. The second presents an issue of fact for the jury; no plea to the petition is necessary or contemplated by Chap. 26, Code 1930, for raising this issue of fact and none should be filed.
It appears from the petition here filed that the appellee is entitled to exercise the right of eminent domain claimed unless the conditions, reservations and limitations therein violate governing statutes. The statute under which the highway commission is authorized to exercise the right of eminent domain is Section 4998 of the Code, which provides that: "Said commission in case it shall be unable to agree with the owners of land containing road building material or for any additional land necessary for widening any existing public highways, or laying out a new public highway, or changing the route of an existing public highway, as provided for in the foregoing part of this section, said commission shall be authorized to condemn any land needed for either of said purposes, as is fully set forth in this section and the proceedings to acquire such lands by condemnation shall be in conformity with the statutes on the subject of `Eminent Domain.' The power of `Eminent Domain' being hereby expressly conferred upon said commission for that purpose." The permission there given is to condemn "land," not to carve out of it a particular estate (e.g. an easement) and condemn that. It is true that the only purpose for which the land is to be condemned is the construction of a highway over it. Nevertheless, the statute contemplates that, when a highway is constructed *Page 154 over one's land, he shall be paid the full value of the land and not the value of any limited estate therein. A highway intended to be perpetual, particularly a paved highway, as the one here is, deprives the owner of the land over which it is constructed of any practical use of the land to the same extent as if he had parted with the fee therein. Under Section 17 of the State's Constitution, the owner of the land condemned for highway purposes is entitled to be paid the full market value thereof (Mississippi State Highway Commission v. Hillman, supra, and the many decisions of this court there cited) in cash. Brown v. Beatty, 34 Miss. 227, 69 Am. Dec. 389; Isom v. Mississippi Central R. Co., 36 Miss. 300, 313. "The commissioners or other tribunal to assess damages have no authority to give compensation in anything but money. It is erroneous, therefore, for them in their award to reserve to the owner certain easements or privileges in the property condemned, . . ." 2 Lewis on Eminent Domain (3 Ed.), sec. 756, 20 C.J. 594 and 843. As to this, there is a conflict in the authorities, some courts holding that the damage to the landowner may be reduced (paid in part) by reservations for his benefit on the use by the public of the land taken. Among the courts so holding is the Supreme Court of Missouri, but that court admonished us in the case cited in the opinion in chief that "the statutes of various states differ widely in respect to the proceedings in exercising the right of eminent domain, and the decisions of one state cannot safely be followed as precedents in another." The St. Louis, K. N.W.R. Co. v. Clark, 121 Mo. 169, at pages 199 and 200, 25 S.W. 192, 906, 908, 26 L.R.A. 751.
The error in permitting these reservations and limitations did not stop with the overruling of the demurrer to the petition but was carried into the instructions to the jury granted the appellee. By two of them, the jury were charged that the "State Highway Department is not required to take the fee title to property condemned for such highway purposes, but may condemn only an *Page 155 easement or right of way across such property" and that the taking of this easement "will not take away any part of defendant's ownership or title to any riparian rights." To call the jury's attention either by the petition filed for the condemnation of the land or by instructions from the court that all the highway commission is here seeking is an easement or right of way over the appellant's land to reservations to be made for the benefit of the owner, and limitations to be put on the commission's use of the land suggests to and permits the jury to award the owner less than the value of his land — exactly what here occurred according to the evidence for the appellant, his compensation being fixed by the jury at $1.
To what use a public highway may be put is governed by law, and where part of a tract of land is taken for highway purposes and it is thereafter put to a use not authorized by law when taken, the owner of the remaining land has a cause of action therefor if injured thereby. The statutes hereinbefore cited do not contemplate that the highway commission, when condemning land and paying full value therefor, should agree to a limitation on its use, nor that such a limitation shall appear in the eminent domain judgment. Moreover, if the limitations are within the law, they are unnecessary, and if beyond the law (that is, restrict the use to which the law authorizes the land to be put), they are void. When a landowner voluntarily conveys land to the highway commission, he may, within limitations, limit the use to which it may be put, and if thereafter it becomes necessary in the public interest to eliminate this limitation, it can be done only with the consent of the landowner or by an eminent domain proceeding; but, where the highway commission pays the owner of the land its full value for a conveyance thereof, which it has the right to do under Section 4998 of the Code, it is hardly probable that the statute contemplates that it may accept a conveyance limiting the use of the land more narrowly than the law itself would. *Page 156
Since the highway commission must pay full value for the land, the estate it will obtain therein by this proceeding is of no concern in determining this value, and no authoritative decision thereon can be here rendered.
What I have here said has no application to the statutes providing for the condemnation of land for purposes other than the construction of a public highway thereon; for instance, for the construction of telephone, telegraph, electric power lines, etc. The rights and liabilities of a condemnor depend on the statute under which the condemnation is sought.
I am of the opinion that the court below erred in not sustaining the appellant's demurrer to the appellee's petition, and in granting the appellee the two instructions hereinbefore set forth.
This brings me to the appellant's claim that the highway commission made no attempt, before instituting this eminent domain proceeding, to reach an agreement with him as to the compensation he should receive for the land to be taken, as required by Section 4998 of the Code. The petition alleges that the petitioner was unable to agree with the appellant on the compensation to be received by him, thereby disclosing, if this allegation is true, that the commission had the right to institute this proceeding. Whether this allegation is true is not a matter into which the county court, as hereinbefore set forth, could inquire. But, continuing as if I am mistaken as to that, the appellant filed an answer to the petition, containing, among other matters, a plea in bar of the action alleging that the appellee had made no attempt to agree with the appellant on the value of the land. The failure, if such there was, of the appellee to attempt to agree with the appellant on the compensation to be paid him for the taking of the land will not bar, but will only abate, this action. Consequently, this issue, if one to be tried by the county court, should have been raised by a plea in abatement. Such a plea presents a preliminary issue to be tried and determined before the trial on the main issue *Page 157 in the case begins. Moreover, in an eminent domain proceeding, the jury charged with fixing the compensation to be paid the owner of the land taken is authorized by Section 1492, Code of 1930, to return only a verdict fixing his compensation. No ruling on the question raised by the plea appears in the record unless in the refusal of the court below to direct a verdict for the appellee. But that aside, whether or not this question is one for the decision of an eminent domain court is not decided in the controlling opinion herein, the court simply holding that assuming for the purpose of the argument that the court was without such authority, the contention that no attempt was made by the appellant to reach an agreement with the appellee as to the value of the land is "not maintained on the merits." I cannot concur in so holding for if the court below was without jurisdiction to inquire into the matter, it was, and this court is, without the right to decide the merits of that controversy, and any decision thereon is coram non judice. But, if I am mistaken as to that, the evidence discloses that the appellee made no sort of effort to agree with the appellant. My views hereon will more fully appear in Rand v. Mississippi State Highway Commission (Miss.), 199 So. 374.