Board of Supervisors of Quitman County v. Carrier Lumber Company

• Decision Date: 13 January 1913
• Court: Mississippi Supreme Court
• Parties: BOARD OF SUPERVISORS OF QUITMAN COUNTY v. CARRIER LUMBER COMPANY

60 So. 326

103 Miss. 324

BOARD OF SUPERVISORS OF QUITMAN COUNTY v. CARRIER LUMBER COMPANY

Supreme Court of Mississippi

January 13, 1913

October 1912

Appeal from the chancery court of Quitman county, HON. M. E. DENTON Chancellor.

Bill for injunction by the Carrier Lumber & Manufacturing Company against the board of supervisors of Quitman county, and others. From a decree overruling a motion to dissolve an injunction, defendants appeal.

The facts are fully stated in the opinion of the Court.

Affirmed.

Mack &amp Donaldson for appellant.

Boards of supervisors are vested with full jurisdiction over roads ferries and bridges by the Constitution of the state. Constitution, section 170. And this jurisdiction may be regulated by statute but cannot be taken away. Board v. Arrighi, 54 Miss. 668; Paxton v. Baum, 59 Miss. 531; Monroe County v. Strong, 78 Miss. 565; Seal v. Donnelly, 60 Miss. 658. It is the general rule and universally accepted that such boards have discretionary powers over grading, draining and repair of highways. 22 Cyc. 884. And this discretion is specifically vouchsafed to them by our statutes and fundamental laws. Code 1906, sections 4415, 4441. Where a board of supervisors or other public officials have been intrusted with discretionary powers, their action in the exercise of this discretion will not be controlled by injunction, except upon a showing of fraud or bad faith. 22 Cyc. 879; 22 Cyc. 884; 22 Cyc. 745; Monroe County v. Strong, 78 Miss. 565; Rotenberry v. Yalobusha Co., 67 Miss. 470.

It is also said in the case of Monroe County v. Strong, supra, that "courts will not interfere with boards of supervisors in the lawful exercise of the jurisdiction committed to them by the law, on the sole ground that their actions are characterized by lack of wisdom or sound discretion," citing Rottenberry v. Yalobusha County, supra.

If the board is exercising the powers confided exclusively to its jurisdiction by our Constitution and laws, the want of proper discretion and sound judgment in the board, can never warrant an invasion of its jurisdiction by another tribunal, whose discretion and judgment touching the exercise of the powers committed to and conferred upon the board, may not be harmonious with the mere discretion and judgment of such board. Granted the exclusive power in the board of supervisors over the subject matter of this controversy, and it must follow that the exercise of the power must rest, likewise, exclusively in the discretion of the tribunal clothed with the power. Rottenberry v. Yalobusha County, supra.

It is insisted that even the state in its sovereignty, nor any municipality nor board of supervisors, can take or damage the property of its humblest individual without compensation, etc. which is altogether true and is part of our constitutional law and by statute the manner of determining such damage, if any, has been provided. Code 1906, sections 4402-4405. And this court has held that these statutes are not unconstitutional because it imposes the duty upon the owner to institute proceedings. Cage v. Trager, 60 Miss. 563. In many respects the case last cited is like the instant case, and if the court was correct in that case and others of like nature, we feel confident that nothing will be found in this case to cause the application of a different principle. See also Ham v. Levee Board, 35 So. 943. And if it is insisted, as appears to be, that the damage, if any must be ascertained and paid or tendered before the work can proceed, we have only to say that in this instance, such a requirement would be a vain thing, for no man could estimate in advance of the building of the fill, any remote or consequential damage that might accrue by reason of the work being done. And although the word "damaged' has been inserted into the constitution of 1890, it by no means follows that consequential damage, such as would result to these appellees, could be foreseen, computed or estimated. The rule is somewhat different in cases where there is no entry or actual taking and the courts have held that in cases of this character, boards of supervisors are not charged with notice that any damage will accrue and compensation cannot thereupon be "first made or tendered" when such damage if any, must of necessity be remote and purely speculative or consequential. 15 Cyc. 781, and cases cited. Speculative or uncertain consequential damage will not entitle a person to injunctive relief, even as against a private individual. McChutcheon v. Blanton, 59 Miss. 116. And where compensation adequate can be made, equity will not interfere. 22 Cyc. 761; 22 Cyc. 879; 53 Am. Rep. 454; 3 L. R. S. 449-445.

The only damage which appellees claim will result is from the overflow waters of Coldwater River, and overflow waters are universally classed with surface waters. 13 L. R. A. 394; 27 Am. St. Rep. 246; 31 Am. Rep. 114; 6 L. R. A. (N. S.) 136; 87 Am. Dec. 625. By the common law which is the law in Mississippi, surface waters may be lavied against as the common enemy. Am. & Eng. (1 Ed.), 963, et seq. And persons may improve their lands by grading or filling up low places and it makes no difference if it changes the flow of surface water. 38 Am. Rep. 139; 53 Am. Rep. 581; 6 L. R. A. (N. S.) 136; Franham on Waters, 1724, et seq.; 24 L. R. A. (N. S.) 214. Legislative authority secures more freedom from liability than individuals enjoy. Moyer v. New York, C. & H. R. R. Co., 88 N.Y. 356. Even though an individual might be enjoined, and even though appellees may have their action for damages herein, equity will not interfere by injunction to restrain a public improvement by the board of supervisors exercising authority vested in them by the Constitution and statutes of the state. 6 Sol. 640; 67 L. R. A. (N. S.) 362. Appellee seems to rely on the case of Cannon v. LeFlore County, 33 So. 81, but a careful reading of the opinion in that case discloses nothing except that the court adjudged the proceedings of the board to have been illegal. The orders of the board in letting the contract in the Cannon case were directly attacked, whereas in the case at bar the orders of the board are not attacked, the sole ground for relief relied upon, being the right of the board to consequentially damage parties residing miles below and on the oposite side of Coldwater River by levying or filling a depression on the west bank of Coldwater River known as Bookter Bayou and thus confining the waters of said River to their natural course.

It may be contended that the board nor any other person has a right to obstruct any natural watercourse. But if this be true, who may complain if a watercourse shall be obstructed? Surely not one whose damage, if any, cannot by any chance or manner of reasoning be more then speculative, remote and consequential, and whose property is miles below and across the river from the stream alleged to have been obstructed.

Aside from the question of damage, if any, should the court hold that injunctive relief will be granted in cases of this character, boards of suprevisors, and even the state itself, would be forever hampered and perennially met with injunctions whenever and wherever any public work or improvement was undertaken. The law affords an adequate, ample and sufficient remedy at law for whatever damage may be sustained. Code 1906, section 4402, 4414, 4415. And the courts have held that if notice is not had by the party damaged he may sue for his damage. Rainey v. Hinds County, 78 Miss. 308. But in the absence of an actual taking or entry upon the land the damage could not be ascertained before the work was done and injunction will not lie to interfere with a public work or improvement. 6 So. 640, supra; 67 L. R. A. 362, supra.

And this is especially true where property is not actually taken or entered upon. 28 L. R. A. 362, supra; 15 Cyc., p. 781. For the reasons herein above set forth and because of the authorities herein cited, we respectfully submit that the cause should be reversed.

Montgomery & Montgomery for appellants.

Now our contention is that the board of supervisors is vested by law with full jurisdiction over these matters. That they have a right to build bridges across bayous on the public road, or, in lieu, of bridges, to build causeways or levees, more durable and economical, for the public interest, with proper culverts or openings therein for the flow of the water. That they are peculiarly vested with discretion in these matters, and while, if the work is improperly done, the proper openings are not left for the flow of the water, the board may not be enjoined from doing it, but anyone who is injured may proceed in the proper forum, to-wit: In the court of law by the proper proceedings to recover his damages. The Constitution, section 170, confers upon the board of supervisors full jurisdiction of roads, ferries, and bridges. This jurisdiction may be regulated by law, but cannot be taken away. Jefferson County v. Arrighi, 54 Miss. 668; Paxton v. Baum, 59 Miss. 531; Seal v. Donnelly, 60 Miss. 658. It is true that these authorities hold that the manner of their exercise of their jurisdiction over roads, ferries, and bridges, may be provided by law, but so long as they have exercised this jurisdiction in the manner provided by law, they cannot, we submit, be restrained from doing it simply because some land owner at a distance from the road may be damaged by the exercise of their jurisdiction. Section 4449 of the Code, provides how bridges and causeways shall be built. Section 4400 of the Code provides how roads may be laid out and changed. Held to be constitutional in Jefferson v. Arrighi, supra.

In Kinnare v. Gregory, 55 Miss. 612, our supreme court says that this statute was not designed...