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SEPTEMBER 14, 1988




This is an appeal from an order of the Circuit Court of Tate County granting a permanent injunction to the plaintiffs, Hale and Hale Lumber Company (hereinafter Hale), whereby the defendant, the Mississippi State Highway Commission

(hereinafter Commission), was enjoined from constructing traffic control islands on its right-of-way near the plaintiff's property. We find the trial court in error in granting the injunction and reverse.

 The controversy concerned two adjacent parcels of land abutting U.S. Highway 51 south of Senatobia. In the early 1930's the Commission created U.S. Highway 51, which passed through Tate County. As part of the process the Commission acquired by two warranty deeds from the owners, Mary E. Nunn, Mr. and Mrs. E. F. Hale, and others, various tracts of property abutting the highway. The deeds were signed on December 2, and November 30, 1935, respectively. The deeds conveyed to the Commission the right to construct a highway along certain tracts of a previously existing road. Consideration was given for both deeds. Such tracts now are owned by Hale in which certain portions are leased to Hale Lumber Company.

 Pursuant to the terms of the deeds and the rights conveyed, the Commission proceeded to widen and improve the road, and to make other improvements on the shoulders and other unpaved portions of the right-of-way. At the time of the conveyance, as well as today, the subject property was used for commercial purposes. Part of the compensation was for removal of a store building to a position off the right-of-way. The business has prospered in the intervening years, and the successors in title to the grantors of the subject property operate a successful construction and supply firm. The two commercial buildings presently located on the site were built in 1981 and 1986, with knowledge of the location of the right-of-way line. The buildings on the front portion of the properties abut the highway right-of-way, and the public right-of-way is utilized for customer parking.

 Subsequently, the Commission commenced a project known as WPH 141, also referred to as" 3-R "- restoration, resurfacing, and rehabilitating. In conformity with the guidelines promulgated and required by the Federal Highway Administration for public convenience and safety, a single traffic island was proposed to prevent traffic from taking short cuts across the right-of-way onto the county road which intersects Highway 51 on the north side of the Hale property, and which would extend down along the frontage of the property to limit the owner's driveway. Due to objections by Hale, an alternate plan was made in order to treat the two tracts as separate entities whereby a shorter curb would regulate traffic turning onto the side road and a small island would regulate the driveways. Thus, one parcel would have a thirty (30) foot driveway and the other a thirty-three (33) foot

 driveway. Due to the exercise of its police power and ownership of the subject property, the Commission offered no compensation to Hale.

 On December 16, 1986, without the knowledge of the Commission, a hearing was held in the Circuit Court of Tate County at the request of Hale. At that time a Temporary Restraining Order was entered enjoining the Commission from proceeding with the proposed construction. At a subsequent hearing on February 19, 1987, a permanent injunction was granted. The Commission's cross-complaint for an injunction enjoining Hale's illegal use of the public right-of-way for parking was denied. Subsequently, Hale was awarded attorney fees.

 The trial judge made the following findings:

 1. That E. F. Hale, Jr., was the owner and Hale Lumber Company was the lessee of the subject property located and situated in Tate County, Mississippi,

 2. That E. F. Hale, Jr. and Hale Lumber Company had full uninterrupted access to the subject property for more than fifty years from U.S. Highway 51,

 3. That Hale's access rights were a compensable right and defendant's, Mississippi State Highway Commission, proposed a plan of limiting plaintiff's access amounted to taking of said property without due compensation,

 4. That the Highway Commission proposed to construct concrete piers and/or islands in front of plaintiff's place of business.

 5. That the Highway Commission's decision to place said concrete structures as proposed was arbitrary, capricious and inconsistent with the placement of other structures along said U.S. Highway 51.

 6. That the said concrete structures would obstruct ingress and egress by large transport trucks creating a safety hazard for those ...

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