Board of Levee Commission for Yazoo-Mississippi Delta v. Dancy

• Decision Date: 13 February 1888
• Court: Mississippi Supreme Court
• Parties: BOARD OF LEVEE COMMISSIONERS FOR THE YAZOO-MISSISSIPPI DELTA v. KATE DANCY

3 So. 568

65 Miss. 335

BOARD OF LEVEE COMMISSIONERS FOR THE YAZOO-MISSISSIPPI DELTA v. KATE DANCY

Supreme Court of Mississippi

February 13, 1888

APPEAL from the Chancery Court of De Soto County, HON. J. G. HALL Chancellor.

In 1884, the Board of Commissioners of the Yazoo-Mississippi Levee District caused a levee to be constructed across the plantation of Mrs. Kate Dancy, without having compensated her for the land appropriated or having had the same condemned. In August, 1886, Mrs. Dancy presented to the clerk of the Chancery Court an application, under Section 3 of the Act of Feb. 28, 1884, incorporating the Board of Commissioners of the Yazoo-Mississippi Levee District, for the appointment of three disinterested commissioners to assess the damages resulting to her from such construction of the levee. The commissioners were appointed by the sheriff in pursuance of a writ from the clerk, and they assessed the damages in question at $ 1700.

The Board of Levee Commissioners, under the Act above referred to, appealed to the Chancery Court from the award of damages by the commissioners, and there pleaded in bar of Mrs Dancy's right of recovery, that she had not instituted her proceedings within three months, as required by an amendment, approved March 16, 1886, to the provisions of an act entitled "An Act to incorporate the Board of Levee Commissioners for the Yazoo-Mississippi Delta, and for other purposes," approved Feb. 28, 1884. The petitioner demurred to this plea on the ground that the provision referred to in such amendment was unconstitutional. This demurrer was sustained. The case was then submitted to a jury, who awarded to Mrs. Dancy damages in the sum of $ 3540. The Board of Levee Commissioners thereupon moved "the court to pronounce judgment against them for $ 1700, and interest thereon," the amount of the damages awarded by the three commissioners; because, as Mrs. Dancy did not appeal from the decision of the commissioners, she is bound by their assessment of damages. This motion was overruled and judgment was rendered for $ 3540 and costs against the commissioners and the surety on the appeal bond for costs given when the appeal was taken from the decision of the commissioners.

The amendatory act of March 16, 1886, above referred to provides, in Section 7 thereof, "That all claims that may have already arisen against said board, for damages for right of way, or by reason of the construction, repairing or maintaining of its line of levees on, over or across any lands or premises, shall be barred, and no right of action shall remain or be maintained therefor, unless the same be prosecuted or instituted within three months next after the passage of this act."

Judgment reversed.

W. P. & J. B. Harris, for the appellant.

1. The exigencies of the constitutional requirement (Sec. 10, Art. 1) that compensation shall be first made before private property can be taken for public use (the use here being in effect the destruction of it), suggests the necessity of a speedy, summary and inexpensive method of adjusting the compensation, the principal feature of which should be all the promptness of which a fair and deliberate appraisal will admit.

The power to limit the time within which a party may avail himself of provisions for his compensation resides in the legislature. Cooly Court Lein 695-6, and the cases cited in the note, especially People ex rel. Green v. Ry. Co., 3 Mich., 496.

This case contains much that is valuable on the question.

The question as to the time allowed here must be considered with reference to the provisions which absolutely protect the land owner, if he sees fit to employ the means provided. There is no way of compelling him to resort to them. Penrice v. Wallace, 37 Miss. 172.

By some authorities (entitled to be considered) a distinction has been taken, as appears from the citation from Judge Cooly's book, between cases where the state or a municipal body having the general taxing power for revenue, takes land for public use, and the cases where private corporations take under legislative grant of power. In the first class of cases it is said the land may be taken before payment; in the latter, not. The soundness of this distinction may be doubted. At all events, OUR constitution says it must be first made, and no distinction is made. In the case we have, the Board of Levee Commissioners have no property or recources; no property which can be reached, and it has no power to tax, and the avails of the tax granted are hampered by restrictions.

2. An appeal means in our jurisprudence a retrial as to law and fact as distinguished from revision on errors of law assigned, or review. Both parties may appeal. A rule of practice requires that the appeal by both shall be heard at the same time, if the ground of complaint arise at the same time.

The term de novo is borrowed from the law of appeals in equity. Powel Appellate Law, 359.

So far as experience teaches, the rule allowing both parties to appeal from the same decree conforms to reason, justice and convenience, as do most of the civil law rules which we have borrowed. If one party alone appeals the other party is not allowed to have any complaint heard, on his adversary's appeal, nor to advance new claims or to exaggerate claims acted on.

The statute now under consideration does not in terms declare what shall be the scope of the appeal. It is of necessity a re-trial on facts (and law, perhaps). It is compatible with this act to restrict the appeal to the party complaining, and to treat the other not complaining as abiding by the former decree.

3. Of course, the Chancellor had no power to make a decree against the surety on the cost bond for the amount of the verdict; and the verdict was palpably excessive.

W. P. Harris, for the appellant, argued the case orally.

Fant & Fant and H. C. Watson, for the appellee.

1. It is respectfully submitted that the amendatory act of 1886, Section 7, page 107, barring all claims unless prosecuted or instituted within three months next after the passage of the act, to wit, the 16th of March, 1886, is in contravention of the Constitution, and is void, because:

(1.) It is the taking of private property for public use, without due compensation being first made to the owner thereof.

(2.) Because three months was not a reasonable time within which to prosecute or institute proceedings to enforce any claim or demand in the premises.

As to the first branch of this proposition it is...