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MISSISSIPPI STATE HIGHWAY COMMISSION, CHARLES W. CRISLER, JR. and GULF LIFE INSURANCE COMPANY v. WAYNE McCLURE and H. H. LUPO

AUGUST 31, 1988

MISSISSIPPI STATE HIGHWAY COMMISSION, CHARLES W. CRISLER, JR. and GULF LIFE INSURANCE COMPANY
v.
WAYNE McCLURE and H. H. LUPO



BEFORE HAWKINS, P.J., ANDERSON and GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This is a real property case on appeal from a summary judgment determination of title in appellees, Wayne McClure and H. H. Lupo. The property in question is a triangular shaped tract in the parking area of what is now known as the K-Mart Shopping Center along U.S. Highway 49 in Hattiesburg, Mississippi. The appellees claim their title through common sources, grants from R. Lee Edmonson and Elias Espose.

On March 31, 1940, and May 28, 1940, Edmonson and Expose, respectively, granted by warranty deed a limited easement "for right-of-way purposes" on Federal Aid Project No. 73-H(1) over lots 1 through 16 in Block 1 of the Pinehurst Subdivision No. 1. D. Seward, on November 17, 1941, purchased the same lots number 1 through 16 at public sale for delinquent county and state ad valorem taxes. The statutory time period elapsed without the State Highway Commission, R. Lee Edmonson, nor Elias Expose exercising their right to

 redeem the tax sale. Consequently, on November 17, 1943, the entire fee simple title matured in D. Seward. The appellees are successors in title to everything D. Seward acquired.

 On April 8, 1969, the Mississippi Highway Commission (MSHC) decided certain portions of its right-of-way easement for Federal Aid Project No. 71-1(1) in Forrest County, Mississippi, were no longer needed for public use and agreed to convey, by quit claim deed, the excess lands to Charles W. Crisler, Jr., the appellant and abutting landowner. The deed was executed April 15, 1969, and the State Highway Commission was paid the fair market value of $4,600. The land conveyed included the subject property and it is through this conveyance that the appellant states a claim to the subject property.

 In the beginning there were additional defendants to this lawsuit: H. R. Morgan, d/b/a Morgan Jewelers, Forrest County, Mississippi, W. T. Grant Co., HUB Investment Co., Malone and Hyde, Inc. and First National Bank of Jackson and Robert Burns, Trustee. Each defendant was granted a summary judgment and they are not parties to this appeal.

 The appellant makes numerous assignments of error. These can be reduced to one central question: Does the State Highway Commission have authority to sell a highway right-of-way easement granted for a specific highway project to a private citizen? For reasons stated below, this Court upholds the summary judgment of the lower court, which in essence said no.

 The Mississippi State Highway Commission (MSHC) possessed an easement for right-of-way purposes by way of the Edmonson and Expose grants for Federal Aid Project No. 73-H(1). The United States Supreme Court in 1836, in Harris. et al. v. Elliot, 35 U.S. 25, 9 L.Ed. 333 (1836), ruled on a case close in point. The Court found that the abandonment of rights-of-way by the sovereign returned use and possession of the property to its owner, the original grantor. The Court said:

 . . . where a mere easement is taken for a public highway, the soil and freehold remains in the owner of the land, encumbered only with the easement, and that, upon the discontinuance of the highway, the soil and freehold revert to the owner of the land. 9 L.Ed. 333 at 345.

 This Court has recognized and upheld this summary. Campbell v. Covington County, 161 Miss. 374, 378, 137 So. 111 (1931);

 Whitworth v. Mississippi State Highway Commission, 33 So.2d 612 (Miss. 1948); Hattiesburg Realty Company v. Mississippi State Hiqhway Commission, 406 So.2d 329 (1981).

 The right-of-way easement granted to the MSHC by the Edmonson and Expose deeds was for a specific public right-of-way of a certain highway, U.S. Highway 49. When the MSHC determined that a portion of that easement was no longer needed by the public, the easement ceased to exist. Since the public acquired a mere easement, the fee title remaining in the landowner was no longer burdened by the easement. Appellant's arguments in support of his proposition that the MSHC had authority to alienate the public right-of-way easement are moot since the easement ceased to exist upon the MSHC determination that the easement was no longer needed for public use.

 This Court in Hattiesburq Realty Company v. Mississippi State Highway Commission, supra, dealt with similar issues as in this case. Hattiesburg Realty is similar to this case as both are premised on a fee simple title acquired through a 1941 tax sale for 1940 taxes, and involves the determination of the interest of the Mississippi State Highway Commission as derived through warranty deeds for the same highway project in the same general location. In Hattiesburg Realty, this Court reviewed Mississippi Code of 1930, Annotated, Section 4998, which was in effect when the Edmonson and Expose deeds were executed. This section provides in part:

 That the state highway commission shall have complete control and supervision, with full power and authority to locate, relocate, widen, alter, change, straighten, construct, or reconstruct any and all roads on the state highway system as herein defined, and shall have full and complete authority for the making of all contracts, surveys, plans, specifications, and estimates for the location, laying out, widening, straightening, altering, changing, constructing, reconstructing and maintaing [sic] and securing riqhts-of-way therefor of any and all such ...


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