BEFORE ROY NOBLE LEE, C.J., PRATHER AND GRIFFIN, JJ.
PRATHER, JUSTICE, FOR THE COURT:
The Mississippi State Highway Commission brought this action in the Chancery Court of Union County against the City of New Albany, seeking the removal of a gas line attached to a bridge located on Highway 78 near the Union and Benton County line. On a cross-motion for summary judgment, the Union County Chancery Court held that the Commission was estopped through laches from requiring the removal of the gas line unless it was willing to incur three-fourths of the cost. From this judgment, the Commission has perfected this appeal and assigns as error the following:
(1) THE MISSISSIPPI STATE HIGHWAY COMMISSION NEVER ALLEGED THAT THE PIPELINE WAS NOT PERMANENT; RATHER, THERE WAS NO PERMIT ALLOWING IT TO BE ATTACHED TO THE BRIDGE.
(2) THERE CAN BE NO PRESUMPTION OF A GRANT OF A PERMIT TO ATTACH THE PIPELINE TO THE BRIDGE BASED ON THE STATUTE OF LIMITATIONS, DESPITE THE FACT THAT THE PIPELINE HAD BEEN IN PLACE FOR THIRTY YEARS.
(3) THE STATE SHOULD NOT BE ESTOPPED BY LACHES FROM REQUIRING THE REMOVAL OF THE GAS PIPELINE.
(4) THERE IS NO EVIDENCE IN THE RECORD TO SUPPORT THE HOLDING OF THE COURT BELOW THAT IT WOULD NOW COST NEW ALBANY GAS SYSTEMS MORE TO REMOVE THE PIPELINE FROM THE BRIDGE THAN IT WOULD HAVE COST IF THE ISSUE HAD BEEN RAISED EARLIER.
(5) THE MISSISSIPPI STATE HIGHWAY COMMISSION SHOULD NOT BE ENJOINED FROM DOING WHAT IT HAD STATUTORY AUTHORITY TO DO.
In 1936, the Mississippi State Highway Commission obtained an easement from the then St. Louis-San Francisco Railroad Company, which allowed the State to construct the U. S. Highway 78 bridge in 1938 over the railroad. The bridge is located near the Union and Benton County lines, approximately twelve miles outside the city limits of New Albany. A six-inch gas pipeline was laid by the New Albany Gas System, a subsidiary utility of the City of New Albany. At the point where the pipeline crosses the railroad, the pipe was attached to the exterior side of the bridge and was totally unprotected. No records show exactly when the gas pipeline was attached, but it probably occurred when the pipeline was originally constructed in the years 1952 and 1953.
Pursuant to a request from the City of New Albany, the Mississippi State Highway Commission had issued a permit to allow the City to place a gas pipeline under the right-of-way of U. S. Highway 78 at several locations not relevant to this action. Despite the issuance of this permit, the Mississippi Highway Commission records did not reveal the existence of a written permit for the attachment of the pipeline to the bridge. Nonetheless, the line has been in place in an unchanged condition since the construction of the system in 1952. The record fails to show any objection to the presence of the line on the bridge from 1952 until 1983.
In 1983, the City of New Albany made a verbal request to the local Highway Commission representative that barricades be erected around the gas pipeline as it approached the bridge. The City based its request on the fact that an automobile had run off the road at this location and had struck the pipeline. New Albany was afraid that another collision would rupture the gas pipeline and cause an explosion. In response to this request, the Mississippi State Highway Department personally investigated the bridge and determined that the pipeline should be removed pursuant to Standard Operating Procedure. No. MND-04-05-00-000, (hereinafter S.O.P.) which prohibited the attachment of any utility pipelines to state highway bridges except those used for carrying water. The Mississippi State Highway Commission had promulgated this rule in 1971.
The Mississippi Highway Department rescinded any permit to attach the gasline to the Highway 78 bridge, if any existed, and requested that the pipeline be removed by letter dated April 6, 1983, and transmitted a copy of the S.O.P. with the letter. The letter cited the obvious danger to motorists as the reason for the removal of the pipeline. New Albany refused to remove the pipeline, and on September 4, 1984, suit was filed by the Mississippi State Highway Commission in the Chancery Court of Benton County seeking an injunction requiring the removal of the line from the bridge. New Albany answered and raised a variety of defenses. The case was transferred to the Chancery Court of Union County on the defendant's motion.
During the course of discovery, a Commission order authorizing the issuance of a permit allowing the subject pipeline to cross under U. S. Highway 78 to New Albany Gas Systems was produced by the Commission. New Albany deposed Mr. Simmons J. Barry, one of the principals in the engineering firm which supervised construction of the pipeline; he testified at the deposition that his firm
regularly obtained all necessary permits for any work that they did. He also produced plans showing that the pipeline was to be attached to the bridge. However, neither Mr. Barry nor New Albany produced any permit actually issued by the Mississippi State Highway Commission allowing the attachment.
On October 8, 1985, New Albany was notified by letter from John R. Tabb, Director of the Mississippi State Highway Department, that any permit which it may have acquired by any means allowing the attachment of a gas pipeline to the bridge was thereby rescinded by the Department. The reason cited for the decision was the serious safety hazard to the traveling public created by the attachment. Mr. Tabb's action was ratified by the Mississippi State Highway Commission in its meeting of October 8, 1985. On November 5, 1985, New Albany amended its answer to include additional affirmative defenses, among them that the actions of the Highway Commission were an unconstitutional taking of the System's property without due process of law.
Opposing motions for summary judgment were filed and the issue was briefed to the chancellor. The chancellor issued his opinion on the 29th day of July, 1986, finding a presumption of a" grant "to lay the pipeline. The chancellor held that the Commission was estopped through laches from requiring the removal of the gas pipeline unless it was willing to incur three-fourths of the cost. The Commission then perfected its appeal to this Court.
THE MISSISSIPPI STATE HIGHWAY COMMISSION NEVER ALLEGED THAT THE PIPELINE WAS NOT PERMANENT; RATHER, THERE WAS NO PERMIT ALLOWING IT TO BE ATTACHED TO THE BRIDGE.
The Highway Commission challenges a finding made by the chancellor in the first sentence of his opinion that the suit was instigated against the City of New Albany partially because the pipeline was not permanent. The Commission challenges this finding, stating that they neither pled nor argued that the pipeline was not permanent. The Commission claims that the suit was filed because the pipeline was illegally attached to the bridge, as no permit had ever been issued by the State Highway Department. The briefs prepared by each of the parties to this lawsuit address this issue in only a cursory manner, and in any event the issue is rendered moot by a more extensive discussion of the merits of this case. Therefore, there is no need for the Court to address this claim.
THERE CAN BE NO PRESUMPTION OF A GRANT OF A PERMIT TO ATTACH THE PIPELINE TO THE BRIDGE BASED ON ...