
    John R. Cameron v. The Board of Supervisors of Washington County.
    1. Eminent domain — ad quod damnum. — It is not lawful for county authorities to open a public road across private property without first paying the owner his damages.
    Appeal from the chancery court of Washington county. Harmon, Chancellor.
    The opinion of the court'states the case.
    
      J. A. P. Campbell and W. A. Percy, for appellant.
    Looking at the bill it will appear that appellant had no notice of the petition, and none of the subsequent proceedings, and will sustain irreparable injury, and has not been paid a cent for the appropriation of his property. If the court, upon demurrer, could look to the exhibits to the bill, it would be seen that the proceedings of the board of supervisors and their appointees abound in irregularities and illegality.
    The bill presents just grounds for injunction, and instead of sustaining the demurrer, the chancellor should have overruled it and required an answer. Penrice v. Wallis et al. 37 Miss. 172; N. O. M. & C. R. R. Co. v. Frederic, 46 Miss. 1.
    
      W. G. Phelps, for appellees,
    Insisted that the board of supervisors had complete jurisdiction over the subject-matter, and that everything required to be done had been done according to law; and that complainants had notice of every proceeding. The order of the board, when the petition to lay out the road was first presented, recites that due notice was given the complainant, and base their order upon that fact. Such recital is conclusive. The presumption is that the board had the proper evidence before it to show that complainants had notice. See Hardy v. Gholson, 26 Miss. 70; Neal et ux v. Wellons, 12 S. & M. 650; Cannon v. Cooper, 39 Miss. 784; Cason v. Cason, 31 Miss. 538'; Code of 1857, art. 9, p. 173; ib. art. 33, p. 419; ib., art. 4, p. 172.
    
      J. S. Morris, attorney-general, on the same side.
   Tarrell, J.

Certain residents of Washington county having presented to the board of supervisors of that county, a petition for the opening of a public road through the lands of John R. Cameron, such steps were taken that subsequently the road asked for was ordered-to be opened and worked, and an overseer of such proposed road was appointed and directed to proceed to open and work the same. At this stage of the proceedings the said Cameron filed in the chancery court of Washington county, his bill of complaint, praying an injunction staying the further progress of said road. The bill avers that the proceedings to open said road were without notice to him; that the damages for opening said road had not been -assessed, nor had any compensation been made to him for the same; that the supervisors and overseers are insolvent; that the said road, if opened, would produce irreparable injury to him; that a jury had been ordered by the board of supervisors to be summoned by the sheriff, to assess the damages for the laying out of said road, but that the damages had not been so assessed; that without such assessment and payment, the overseer appointed for that purpose was about to proceed to open and work said road across the lands of the said Cameron, by direction of the. board of supervisors, whereupon, the complaint was filed praying an injunction, and that the same be made perpetual, etc. There was a demurrer to the bill, which was sustained and the bill dismissed. From this decree there was an appeal, and the case is now in this court to be heard upon bill and demurrer; according to the rule heretofore established, the exhibits to the bill constituting no part thereof for the purpose of the present adjudication, and will not be examined by us in this condition of the case. The only error assigned is the action of the chancery court in dismissing the bill. The proceedings sought to be enjoined were instituted in 1869, and the final order of the board of supervisors was made and entered October 18, 1871.

Art. 6, p. 172, Code of 1857, is as follows: “If the report of the commissioners shall be confirmed, the damages assessed shall be paid out of the county treasury; and it shall not be lawful to open said road for use until the damages shall be assessed and paid.”

Referring to ch. 15 as to roads, bridges, etc., Code of 1857; and ch. 53 on the same subject, Code of 1871; to Coulson v. Harris, 43 Miss. 728 ; Frederic v. N. O., J. & G. N. R. R. 46 Miss. 1 ; Richardson et al. v. Scott, tax collector, etc., decided present term, the decree sustaining the demurrer and dismissing the bill is reversed and the cause remanded, with leave to the defendant to answer within sixty days from this date. 
      
      
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