City of Laurel v. Hearn

• Decision Date: 17 May 1926
• Docket Number: 25405
• Citation: 143 Miss. 201,108 So. 491
• Court: Mississippi Supreme Court
• Parties: CITY OF LAUREL v. HEARN. [*]

108 So. 491

143 Miss. 201

CITY OF LAUREL v. HEARN. ^[*]

No. 25405

Supreme Court of Mississippi

May 17, 1926

Division A

1. EMINENT DOMAIN. Although city is liable for damages inflicted on abutting property by improper use of streets in providing drains, yet streets may be devoted to any proper use incident to construction and maintenance of public thoroughfare (Constitution 1890, section 17; Code 1906, section 3338 [Hemingway's Code, section 5835]).

Although under Constitution 1890, section 17, city is liable for consequences of damages inflicted on abutting property by improper or negligent use of street in providing drains or ditches, yet, under Code 1906, section 3338 (Hemingway's Code, section 5835), streets may be devoted to any proper use incident to construction and maintenance of public thoroughfare.

2. EMINENT DOMAIN. City held entitled to peremptory instruction in suit against it for injury to abutting property because of ditch in front of property, in absence of testimony showing drain was not necessary, and where negligence in maintaining ditch was neither charged nor proven.

Where testimony in suit against city for damages to abutting property alleged to have been caused by diverting water through a ditch in front of property does not show that drain was not necessary and convenient for public construction, nor was negligence in providing and maintaining ditch either charged or proven, held that city was entitled to peremptory instruction.

HON. R S. HALL, Judge.

APPEAL from circuit court of Second district, Jones county, HON. R S. HALL, Judge.

Suit by J. W. Hearn against the city of Laurel. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Judgment reversed.

Welch & Cooper, for appellant.

The court should have granted a peremptory instruction. A fair summary of appellee's own case shows a complaint over the diversion of the flow of surface waters. There is not any intimation that in the diversion any water has been thrown on appellee's property. This is not claimed. The only claim is that the appellant is carrying in its own ditch on its own property more surface water than would naturally flow there. It is not going on appellee's property. It is not ponding in front of his property. It is ten feet away and not disturbing the sidewalk space. We say that this fixes no liability on appellant; that it and every other owner of land has the right to divert surface water if it is not discharged upon the land of another.

Now what is the basis of liability? Did appellant have the right to divert the flow of surface waters? This court approved this rule in Harvey v. Railroad Co., 111 Miss. 835, 72 So. 273. See, also, Holman v. Richardson, 115 Miss. 169, 76 So. 136; I. C. R. R. Co. v. Miller, 68 Miss. 760, 10 So. 61; Sinai v. L. N. O. & T. R. R. Co., 71 Miss. 547, 14 So. 87; R. R. Co. v. Smith, 72 Miss. 677, 17 So. 78. But here is a municipality charged with this act. Will this fact serve to annul the rule so established? See 9 R. C. L., p. 684.

We submit, therefore, that appellant had the right to divert the flow of surface water as it sees fit so long as the waters are not cast upon the land of another. In the instant case there is no pretense that such was done. The waters flow upon the land of appellant, not upon appellee's. So we say that since appellee has founded his case upon the diversion of surface waters, the instruction to find for appellant should have been given.

But there is still another ground upon which this instruction should have been granted. The gravamen of appellee's suit is that this plan of drainage was improper and harmful; that the city was required to carry the surface water in the natural way.

We submit that the plan of drainage is not one which will render a municipality liable where damage is caused. The case of Johnston v. District of Columbia, 118 U.S. 19, 30 L.Ed. 75, is fairly conclusive of this general rule.

Pack & Pack, for appellee.

The issue in this case is whether or not there has been a damaging of appellee's property for public use. If there has been, the case must necessarily be affirmed. The undisputed proof is that the city of Laurel, in an effort to accommodate and relieve a number of citizens who were making complaint, diverted the natural flow of surface water from two or three streets and caused it to flow alongside appellee's property.

What was the result of this change to appellee? Instead of a six or eight inch ditch being sufficient to carry the water by his store, as formerly, there is now running within eight or ten feet of his store building and the entire length of his property, a ditch four or five feet deep and six feet wide and this ditch is being allowed by the city to wash out and constantly grow larger.

This condition, according to appellee and practically every witness who appeared in the case, has caused the market value of appellee's property to decrease greatly, and has rendered his store practically inaccessible from one side.

It is urged by learned counsel for appellant that this water does not actually flow on or over appellee's land. But this is not the criterion. It might have been prior to the adoption of the state Constitution of 1890; but since the adoption of that Constitution, it is not necessary that the property of a private citizen be actually used or appropriated before he is entitled to compensation. See City of Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; City of Jackson v. Williams, 92 Miss. 301, 46 So. 551; Slaughter v. Meridian Light & Ry. Co., 95 Miss. 251, 48 So. 6; Warren County v. Rand, 88 Miss. 395, 40 So. 481; Robinson v. City of Vicksburg, 99 Miss. 439, 54 So. 858; Funderburk v. City of Columbus, 117 Miss. 173, 78 So. 1; Y. & M. V. R. Co. v. Leopoldt, 87 Miss. 317, 39 So. 459; Brahan v. Meridian Telephone Co., 97 Miss. 326, 52 So. 485.

Under the principles announced in the cases above, how can it be denied that appellee is entitled to compensation? The question in all such cases is whether or not the property of the citizen has been damaged for public use; and if so, he is entitled to compensation, whether the damage be caused by changing the grade of the street, erecting barricades or digging a ditch. What difference is there in principle between erecting barricades as was done in the Funderburk case, thus interfering with the accessibility of the building, and digging a ditch which produces the same result? In each instance the property owner has been damaged and in each he is entitled to compensation at the hands of the municipality which saw fit to damage his property for public use.

The authorities relied upon by the appellant are, we submit, not in point because they deal merely with the relative rights of adjoining landowners and not with the right of a municipality to divert surface waters for the benefit of the general public at the expense of one private citizen.

Welch & Cooper, in reply, for appellant.

Appellee's brief is devoted solely to the argument that appellant has taken appellee's property by the construction of the ditch. No mention is now made of the theory upon which the case was tried below; viz: the diversion of the natural flow of surface water. They now say that the digging of the ditch is the taking or the damaging of appellee's property and that because of this section 17, Constitution of 1890, warrants the judgment. That appellee relied on diversion of surface water in the court below is shown by the instructions.

Appellee cites many cases in support of the proposition that section 17, Constitution of 1890, requires payment when the property is damaged for public use. We take no issue with the cases cited. They were correctly decided. Each case cited except one, however, bears upon a change of grade in a street. None bears upon the enlargement of a ditch wholly in the street, ten feet away from the property and cut to carry off surface water, as in the case at bar.

The ditch here in question is simply a ditch that has been cut deeper. It was originally from six to eight inches deep. It was cut deeper, and it was cut deeper simply because the necessary construction of the streets worked a diversion of the flow of the surface water. When one buys a lot or piece of property, he knows that it will have to be drained. He buys it with the knowledge that ditches will have to be cut. If any damage is done his property, it is not such as in law he may recover for.

Section 5835, Hemingway's Code (section 3338, Code of 1906) gives to the city full jurisdiction of streets, sidewalks, sewers and parks. It authorizes the same jurisdiction to construct, repair and maintain...