Belzoni Drainage Dist. v. Cobb

• Citation: 102 So. 259,137 Miss. 393
• Decision Date: 22 December 1924
• Docket Number: 24547
• Court: United States State Supreme Court of Mississippi
• Parties: BELZONI DRAINAGE DIST. v. COBB. [*]

102 So. 259

137 Miss. 393

BELZONI DRAINAGE DIST. v. COBB. ^[*]

No. 24547

Supreme Court of Mississippi

December 22, 1924

Division B

1 DRAINS. Damages resulting from cleaning out of drains and ditches held required to be claimed on original laying out of district.

Where a drainage district is organized under chapter 195, Laws of 1912, and plans and specifications of the canals and drainage are filed and approved and notice given to property owners under the requirements of the statute, and the owner fails to file claim for damages to his property, and the district is created and the drainage canals located, the property owner is thereafter precluded from claiming damages resulting from cleaning out of said drains and ditches, if done in a proper manner, under proper plans, etc., and it is immaterial that his property damaged by such cleaning out of said drains does not lie contiguous to the ditches or canals.

2 DRAINS. Rule stated as to right of action of owners for damages caused by ditches not on original plans and specifications.

If new ditches and drains, not on the original plans and specifications, are laid out subsequent to the creation of the district, and the property owners are not given notice and opportunity to be heard on the question of damages, they would have a right of action for damages. But such right of action does not apply to such damages as are within the purview of the original drainage plans and specifications.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS Judge.

Action by J. E. Cobb against the Belzoni Drainage District. From an order overruling its demurrer to the declaration, defendant appeals. Reversed, and dismissed.

Judgment reversed.

Montgomery & Montgomery, for appellant.

The Belzoni drainage district had the right to use its canals for the purposes for which they were intended, and to properly maintain them when necessary--so long as the maintenance work was performed in a proper and skillful manner. The error complained of can be simply stated. When a drainage district is organized and complies with the drainage statute, giving all of the notices and providing all of the hearings therein contemplated, and finally actually lays out and constructs the proposed improvement--under such circumstances does the drainage district have the right to properly maintain, when necessary, its drainage ditches--provided that the maintenance work is performed in a proper and skillful manner? Or--to state it in other words--after a drainage district has acquired the title to the rights of way for its drainage canals, and has continuously used these canals for more than ten years, can a landowner of the drainage district--after the district has been using the ditch for more than ten years--come into court and complain of damages sustained by the necessary and proper maintenance of a canal, when such necessary maintenance work has been done in a proper and skillful manner? Again, the whole controversy may be summed up in this question: Does the initial assessment of benefits and damages contemplated by the statute cover "all damages,"--these are the very words of the statute--and therefore cover not only the damages flowing from the construction of the canals in the first instance, but also, all damage flowing from their necessary and proper maintenance, so long as said maintenance work is performed in a proper and skillful manner?

It is the contention of the appellant that after a drainage district acquires title to its drainage canals in accordance with the provisions of the statute, that the district thereafter has the right to use the canals for the purposes for which they were originally acquired by condemnation, and that the district has the right to proceed with all necessary maintenance work--provided same is performed in a proper and skillful manner. It is our contention that any damage flowing proximately from such work is damage for which the owner is conclusively presumed to have been compensated in the first instance, and that all such damage is damnum absque injuria, damage without injury. The statute creating the drainage district provides expressly for compensation for all lands taken or damaged by reason of the proposed improvement. The plaintiff is supposed to have received full compensation by the invocation of the rights awarded to him by the statute. If he has not, then his injury is damnum absque injuria--Section 4445, Hemingway's Code, and section 7 as amended by the Laws of 1914; Section 4446, Hemingway's Code and section 8 as amended by Laws of 1914; Minyard v. Pelucia Drainage District, 98 So. 225; Section 4468, Hemingway's Code, section 22 as amended by Laws of 1914.

"All damages for lands taken or damaged," is bound to embrace not only the damage flowing from the construction of the improvement in the first instance, but such as flow from the necessary and proper maintenance thereof. It is vital that the statute so provide. It would be disastrous for any other construction to be placed upon these provisions. If, after a drainage district has been created and bonds issued for a certain improvement, it is possible for all of the landowners therein to come in with claims for unliquidated damages, then this means that never again will another drainage district ever be created in this state. The costs of drainage are large, and the uncertainties are many--even as things stand. Nevertheless, the advantages of drainage are so great that a very large part of the entire delta portion of this state, as well as considerable parts of other portions of the state, have been literally transformed by drainage districts. The products of the county has been multiplied, and the health of the people vastly promoted. It would be a great step backward if this court should hold that the door is always open for the recovery of judgments upon unliquidated claims against a drainage district for damages growing out of the necessary and proper operation and maintenance of the improvement provided for in the first instance. It would open the door to many rash and adventurous litigants. In the present instance, there are several claims awaiting the outcome of this matter. No one could know whether it was advisable to go into a drainage project. Moore v. Swamp Dredging Co., 125 Miss. 842, 88 So. 522; 1 R. C. L., p. 318, par. 5; 1 R. C. L., p. 319, par. 6; White v. Kincaid, 149 N.C. 415, 63 S.E. 109, 23 L. R. A., (N. S.) 1177; West Virginia Transportation Co. v. Standard Oil Co., 50 W.Va. 611, 56 L. R. A. 804; Ocean Grove Camp Meeting Assn. v. Asbury Park, 40 N.J.Eq. 447, 38 Cyc. 421; Brown v. Beatty, 34 Miss. 243-44.

We submit that the provisions of section 17 of the Constitution of 1890 have no bearing on the liability vel non of the defendant, which liability must still be determined by the common law, as modified by statute. Brown v. Beatty, supra; Jones v. Belzoni Drainage District, 102 Miss. 884, 59 So. 921; New Orleans etc. Ry. Co. v. Brown, 64 Miss. 479, 1 So. 637.

Jones & Womack, for appellee.

The lands of Cobb were not taken for right of way, and were not awarded any compensation for damages, so far as this record discloses, and could not have been in the year 1913, the only time any assessment was made of any damages, because the land was not then damaged, and it could not have then been known that it would ever be taken or damaged. But it was damaged and in the year 1922. Let it be granted, as it was in the trial, that the work upon the canal was necessary, that it was expedient, and that it was done as well and efficiently as it could have been done, still the district or quasi-public corporation, has the power, just as the government to take private property, but just as the government, or any sub-division, or any other corporation so empowered, so is imposed the duty to pay for what it gets, takes, or the damage occasioned by such taking or damaging of private property. No statute could be enacted that would abridge the constitutional provision which is as follows: "Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof in a manner to be prescribed by law." 5th Amendment to the Constitution of the United States; Pumpelly v. Green Bay, 13 Wall 166; United States v. Lynah, 188 U.S. 445.

We do not think that it ever occurred to the lawmakers that a district should ever, in the cleaning out of its canals, occasion an injury to a landowner, unless it were one who had granted right of way, or who bordered the canal, but the district had all the power, and has all the power necessary to perform this work, and may use lands of any owner within the district in doing so, but when its operations damage him who has not granted the power, or whose land has not been condemned for its exercise, then such owner is entitled to a fair compensation for such injury. The owners of lands entered upon and taken or damaged by the construction, enlargement, or maintenance of drains, pursuant to the provisions of drainage statutes, are entitled to compensation for such taking or damage. 19 C. J. 703, and cases cited. Drainage authorities are not confined to a single assessment, but if the first is insufficient may have an additional one. 19 C. J. 749; Simmons v. Hopson's Bayou Drainage Dist., 112 Miss. 200, 72 So. 901.

Following the reasoning and the authorities, if a new assessment of benefits upon due and proper notice is necessary, then a new assessment of damage is also, necessary upon the prescribed statutory notice, where the assessment is a new one, or the damage is a new one, and not contemplated in the old assessment; the contrary of this principle would be...