* Corpus Juris-Cyc. References: Attorney and Client, 6CJ, p. 790, n. 54 New; Highways, 29CJ, p. 504, n. 94 New. Mrs. Armindy Grantham filed a suit against Lamar county for laying out a public road across her premises, involving a change of the road between Hattiesburg and Columbia, claiming, as damages for said act, the sum of six hundred dollars. She made a contract with Levi Grantham to represent her and assigned to him fifty per cent. of the amount which might be recovered in said suit. Subsequent to filing such suit, the board of supervisors, by way of compromise paid Mrs. Grantham a small sum of money, but refused to pay appellant anything with reference to his contract. After the settlement was made with Mrs. Grantham, the declaration was amended so as to eliminate her from the suit, and the suit proceeded with Levi Grantham as plaintiff, and the county as defendant.
The county defended upon the theory that they made a contract with Mrs. Grantham at the time of opening the said highway through her lands, by which she consented that said road could go through her lands, and accepted and retained the benefit of the contract then made, and that they owed her nothing, in fact, when the suit was brought, and that their compromise with her in no respect affected their liability so far as appellant is concerned.
It appeared from the evidence that the highway from Hattiesburg to Columbia ran in front of Mrs. Grantham's property, and that the county authorities were trying to put the road in condition to turn over to the state highway commission as part of an interstate and intercounty highway; that when they reached Mrs. Grantham's place, it was found necessary, in order to *Page 152 broaden to the extent of the necessary right of way for acceptance of the road by the highway commission, to remove certain shade trees in the highway; and that the highway, as broadened, would come very near the well used by Mrs. Grantham. The supervisor of that district explained the situation to her, and told her they could not pay her anything by reason of the destruction of the shade trees, etc., but if she would consent, he would change the road so as to remove it further to the north, going through her place, and would leave the shade trees and the old road, and that he would furnish her wire and posts to fence along the new road, and that she considered the matter, and agreed to the proposition, and that the county furnished the wire and posts for the building of a fence, but when the county offered to build the fence, she was uncertain where she desired it placed, and the material was left on the ground with the agreement that she would put up the fence to suit herself, all in accordance with her contract, and was accepted and retained by her. That when she afterwards brought suit, the matter was discussed, and a member of the board thought it would be just and reasonable to allow her an additional sum for the necessary expense of putting up the fence; but they did not feel obligated to do so, as they had already made a valid contract with her. The matter was submitted to a jury on appropriate instructions involving this theory of the county, and the jury returned a verdict in accordance with the county's contention.
It seems to be the idea of the appellant that the board, in making a change in said public highway, did not have a petition signed by freeholders, as required by chapter 282, Laws of 1924, and that, by reason of this fact, the road was illegally laid out, and that Mrs. Grantham had a right of action for damages because the statute was not complied with, and the whole agreement was illegal. We are unable to accept this view. It may be that the board did not proceed according to law in making the change in the public highway, but the plaintiff, Mrs. Grantham, *Page 153 proceeded upon the idea that they were acting for the county, and sued the county because the road had been laid out through her place. We think the county had the right to purchase a right of way for a road, and the agreement testified to by witnesses for the county sufficiently established the right of the county to this right of way, and, so far as this lawsuit is concerned, it is immaterial whether the statute was complied with in its making or not. Whether the road be laid out and established in no manner affects the county's title to a right of way which it acquired by such negotiations in laying out the road. A different question might be presented if some property owner was contending that the road was not, in fact, changed, and contending for the right to travel over the old road, or claiming damages for the abandonment of the old road.
The county's evidence established a valid agreement for this right of way through the land prior to the filing of the suit, and, consequently, at the time the suit was filed, there was no legal right in plaintiff to maintain a suit against the county, and as appellant only acquired a fifty per cent. interest in such right, and as Mrs. Grantham had secured no right of action herself, consequently, the judgment must be affirmed.
Affirmed.