Town of Eutaw v. Coleman

ANDERSON, C. J.

While I concur in the conclusion reached in this case, I do not indorse all that is said in the opinion of Sayre, J., and do not wish to be understood as holding that the county commissioners have independent jurisdiction or authority over the streets of Eutaw. I base my conclusion solely upon the theory that the pavement in question was a betterment or improvement of the county property, being ' upon the border thereof and tending to beautify same, make it perhaps more accessible, as well as comfortable, to the occupants of the courthouse by preventing to some extent mud in winter and dust in summer. The fact that a municipal street was thereby improved was but an incident to the improvement of the courthouse square and its borders or immediate surroundings, so far as the' county was concerned, and while . the county had no right to control the municipal street, yet, if the town was willing for it to enter upon the street or co-operate with it, the county had the authority to do so if it was for the purpose of improving or benefitting the county property, although by doing so it might or did improve the municipal highway. Suppose the property surrounding the courthouse was not-a street, but belonged to an individual, in whole or in part, and was in such a condition as to mar the beauty of the courthouse and grounds, or interfere with the approach thereto, or cause it to be flooded during a wet season, could not the county remedy the defects, *181with the consent of the owner, although by doing so the said adjoining property would be benefitted? I think so. Could it be questioned that the county could not drain or sewer its lot even if the pipes or curbing were placed on the lands of another, in whole or in part and with the consent of the owner, even though it also benefitted the property upon which said improvements encroached? I think not. Could not the county inclose and improve the borders of its property by a wall or fence and place the same over its line, in whole or in part, with the consent of the attingent owner, although it also benefitted the property upon which the improvements encroached? I think so. It may he that paving the streets in question was primarily the improvement of the municipal highway, so far as the toivn is co'ncerned, but, as to the county, it was but an improvement of its property, and the fact that it also operated to improve the streets was a mere incident to the betterment of its property. If the county could make such improvements alone, there is no sound reason why it could not co-operate with the adjoining owner in doing something mutually beneficial.