Board of Levee Com'rs for Yazoo-Mississippi Delta v. Withers

• Decision Date: 09 February 1942
• Docket Number: 34792.
• Citation: 192 Miss. 433,6 So.2d 115
• Parties: BOARD OF LEVEE COM'RS FOR YAZOO-MISSISSIPPI DELTA v. WITHERS et al.
• Court: Mississippi Supreme Court

6 So.2d 115

192 Miss. 433

BOARD OF LEVEE COM'RS FOR YAZOO-MISSISSIPPI DELTA v. WITHERS et al.

No. 34792.

Supreme Court of Mississippi

February 9, 1942

Brewer & Sisson, of Clarksdale, for appellant.

Dulaney & Bell, of Tunica, for appellee.

ALEXANDER Justice.

Eminent domain proceedings were instituted by appellant to condemn a parcel of land owned by appellees of approximately 4.9 acres constituting a portion of a pond of about 10 acres, the remainder of which was owned by appellant. The waters of such pond were retained by a dam erected as a sub-levee by appellant upon its own land. This cause involves the right of owners of the land upon which water had been impounded by the dam erected by the Levee Board on its own property, to recover consequential damages to adjacent lands in addition to the actual value of the pond site when the latter is appropriated upon abandonment of the dam and release of the waters.

Approximately thirty years prior to the commencement of the action the Levee Board constructed on the land side of the main levee of the Mississippi River what is commonly known as a sub-levee. The purpose of said sub-levee was to create a body of water against or near the main levee on the side opposite the river so as to prevent, by means of a counter weight or pressure the formation of sand boils, or the sloughing away of levee material due to pressure and seepage from the river. As stated, the sub-levee constituted a dam which impounded a lake or pond over an area of approximately 10 acres, 4.9 acres of which was owned by appellees. It is not clear under what terms the right to use appellees' lands for this purpose was acquired but it was at least with their consent.

A 12-inch drain pipe or water gate with a control valve was installed in the sub-levee for the purpose of draining the pond during seasons when the need of its maintenance temporarily ceased. However, except on one occasion, the valve was kept closed, resulting in its ultimate stoppage making it necessary to cut the sub-levee to drain the water.

The pond thus created was used and valued chiefly for fishing and boating and there was testimony that it materially increased the value of the lands of the appellees as riparian owners and residents. There was, however, testimony to the contrary varying from statements denying value to that alleging a resultant benefit after drainage. Appellees simplify the discussion by eliminating as bases of contention any rights derivative from prescription or dedication.

Did the riparian owners have the legal right to demand permanent maintenance of the sub-levee as a dam? The answer to this inquiry will conversely determine whether the Levee Board retained the right to abandon the dam. As stated, the dam was erected by the Levee Board upon its own property, and maintained solely by it. We find ample authority to support the contention that the first must be answered in the negative and the latter in the affirmative. Recovery in such case is to be adjudged not in terms of the value of a privilege but the existence of a right. The issue as to value may not be reached unless and until a precedent and supporting right is established. If no such right exists the loss is damnum absque injuria. It must be borne in mind that we are not dealing with a case where a pond constructed and maintained by A upon his own land is condemned by B. The damages here claimed include the value of the pond or its site, and the incidental damage to adjacent lands. Both items were allowed by the jury and the decree of the court. The valuation of the pond as such is not contested, but appellant urges as error allowing a recovery for consequential damages resulting from the loss of the pond as such.

Since no prescriptive rights could be asserted against the Levee Board (Adams v. Illinois Central R. R. Co., 71 Miss. 752, 15 So. 640) the right of appellees must be referred to some other principle. Such attempt is made under authority of Pompey Lake Drainage Dist. v....