Board of Levee Com'rs for Yazoo-Mississippi Delta v. Mangum
| Decision Date | 09 April 1934 |
| Docket Number | 30876 |
| Parties | BOARD OF LEVEE COM'RS FOR YAZOO-MISSISSIPPI DELTA v. MANGUM |
| Court | Mississippi Supreme Court |
(Division A.)
1. LEVEES AND FLOOD CONTROL.
In action against board of levee commissioners for damage to land caused by pumping plant, special pleas claiming license and estoppel and alleging that plaintiff requested that capacity of old plant be increased and that he consented to construction of new plant, held not demurrable, since they tendered issues which if sustained by evidence, would absolve levee board from liability.
2 PLEADING.
Plea need not set forth all evidence which will be offered to uphold it.
3. WATERS AND WATERCOURSES.
Riparian owner's right to have free use of flow of water through or along his land may be waived.
4. WATERS AND WATERCOURSES.
Riparian owner may so act as to be estopped from asserting claim to damage because of alteration or change of course or manner of flow of water.
5. WATERS AND WATERCOURSES.
Riparian owner's license to alter or change course or manner of flow of water may be implied or it may be given in parol.
APPEAL from circuit court of Tunica county, HON. W. A. ALCORN, JR. Judge.
Action by E. P. Mangum against Board of Levee Commissioners for the Yazoo-Mississippi Delta. From an adverse judgment, defendant appeals. Reversed and remanded.
Reversed and remanded.
J. A. Tyson, of Greenwood, for appellant.
Every riparian owner is entitled to have the stream continue to flow through or along his lands in its accustomed channel and natural volume; and he can be deprived of this right only by his own grant or license, actual or implied.
40 Cyc., pages 568, 569, 582, 658 and 680.
Defendant may justify under a legal right to flow the lands in question on the license, permission or acquiescence of plaintiff.
40 Cyc., pages 687 and 760; 3 Farnum, Waters and Water Rights, page 2317, sec. 784, and page 2320, sec. 786.
If, under a parol license to flow land, the licensee has erected his dam and cast the water over the line onto the upper property, the license, so far as past flowage is concerned, is executed and will protect the licensee from being treated as a wrongdoer, and the licensor cannot proceed against him in an action of tort.
3 Farnum, Waters and Water Rights, page 2322, sec. 787.
If the improvement is for the benefit of the licensor, or if it is undertaken at his solicitation, so that the licensee can be regarded as having made the expenditure at his request, there will be sufficient consideration to uphold the contract.
3 Farnum, Waters and Water Rights, page 2335, sec. 791 and page 2358, sec. 797.
Express consent or implied assent waives the original right.
Mississippi Central Railroad v. Mason, 51 Miss. 234; Currie v. N. J. & C. R. R. Co., 61 Miss. 725; Walton v. Lowery, 74 Miss. 482; Hicks v. Miss. Lumber Co., 48 So. 624.
While the Mississippi authorities cited apply to real estate and not directly to water rights, except the case of Mississippi Central R. R. Co. v. Mason, 51 Miss. 234, they establish the principle in Mississippi that parol permission (and it may be by mere acquiescence) may bind the owner as licensor of real estate in giving rights therein by parol to another party as licensee without rendering the licensee liable to the licensor for damages in the exercise of such rights.
We submit that the court below erred in sustaining the demurrers to the special pleas of appellant, board, numbered three and five, and especially five, which set forth, thoroughly and completely, such facts as, if proven, would show the appellee, Mangum, to have been a licensor and the appellant, board, a licensee for the construction and operation of the pump and for everything complained of in the two counts of appellee's declaration.
A complete defense may be based upon an estoppel of plaintiff arising from his acquiescence in the obstruction without any protest or remonstrance.
40 Cyc., pages 582 and 611; 3 Farnum, Waters and Water Rights, page 2826, sec. 995; 27 R. C. L. 1136, par. 66; Binder v. Weinberg, 94 Miss. 817; Vicksburg & Meridian R. R. Co. v. Ragsdale, 54 Miss. 200.
Dulaney & Bell, of Tunica, for appellee.
The liability of the levee board was established by competent proof.
There was no license for the damage nor was appellee estopped from claiming the damage.
We do not discuss the authority cited by the learned counsel for appellant for the reason that we entirely agree with his conclusion that in Mississippi, parol permission may bind the owner as licensor of real estate in giving rights therein by parol to another party as licensee without rendering the licensee liable to the licensor for damages in the exercise of such right. They carry the principle this far but no further; and certainly they establish no such principle as that a request of a public body to do something it was under obligation to do constitutes a license of any kind or raises any estoppel; and no such principle as that, a license to do a thing, constitutes a license to do it in a negligent manner or without taking any precaution to avoid damage; and no such principle as that, a license to operate a pump of insufficient capacity, could be created by a request to install and operate a pump of adequate capacity.
Every pleading is construed most strongly against the pleader on the reasonable assumption that in his own interest he has stated his case its strongly, as truthfully he can.
Griffith, Mississippi Chancery Practice, sec. 82.
The building of the levee across the bayou was necessary, of course, to protect the entire Delta from Mississippi river floods. However, the levee board was entirely without right to dam this flowing stream without (a) making due compensation to riparian owners along the stream or (b) substituting an adequate drainage in place of that destroyed or (c) paying such annual damages as might result to crops by reason of the destroyed drainage.
Board of Supervisors v. Carrier Lbr. Co., 103 Miss. 324, 60 So. 326; Leflore County v. Cannon, 81 Miss. 334, 33 So. 81.
Argued orally by J. A. Tyson, for appellant, and J. W. Dulaney, for appellee.
A judgment was rendered in the court below against the appellant, board of levee commissioners for the Yazoo-Mississippi Delta, in favor of the appellee, E. P. Mangum, for damages to the latter's land in the sum of one thousand five hundred dollars; and appellant, the board of levee commissioners for the Yazoo-Mississippi Delta, prosecutes an appeal here.
The declaration of the appellee is in two counts, the first charging negligence on the part of the officers and agents of the levee board, and the second, alleging, in substance, that the levee board, the appellant, had damaged his land without due compensation having been paid therefor. Appellee sought to recover on the ground that the appellant levee board had caused to be erected across McKinney Lake or bayou a levee which prevented the natural drainage of that bayou into the Mississippi river, and had substituted for the natural drainage the artificial method of pumping the water over the levee from the bayou into the Mississippi river. Some time before 1928, the levee board constructed and maintained a steam pumping plant to take care of the natural drainage of this bayou and the territory drained by it, but during the year 1928 there was constructed a...
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