City of West Point v. Womack

• Decision Date: 17 May 1937
• Docket Number: 32673
• Citation: 178 Miss. 808,174 So. 241
• Court: Mississippi Supreme Court
• Parties: CITY OF WEST POINT v. WOMACK

174 So. 241

178 Miss. 808

CITY OF WEST POINT v. WOMACK

No. 32673

Supreme Court of Mississippi

May 17, 1937

Division A

1 EASEMENTS.

Right secured by prescription is limited by character and extent of right exercised during prescriptive period.

2 NUISANCE.

City maintaining and using sewer line and outlet for about fifteen years in connection with open artesian well, which constantly flowed enough water to dilute and carry away sewage without damage or inconvenience to adjacent landowner, acquired no prescriptive right to maintain and use them in such manner as to cause him damage after well ceased to flow and volume of sewage was largely increased because of many new residences being constructed and connected with sewer line.

Hon. W W. MAGRUDER, Judge.

APPEAL from the circuit court of Clay county Hon. W. W. MAGRUDER, Judge.

Action by T. A. Womack against the City of West Point. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Thos. J. Tubb, of West Point, for appellant.

It is our position that the law is when a body politic acquires by grant or condemnation land fora specific public purpose of use of the right to use the land for such specific public purpose, that the consideration for the grant or right or the award by the eminent domain court, is full and complete payment and award for not only the right but for all damages to the land on which it is acquired, present and future, resulting from the use of the right.

If our position is correct then under the facts of this case the appellant by its grant not only acquired the right to run its sewer in and upon Block 149 and empty the sewage therefrom into the ditch in question, but to empty into the ditch as much sewage in volume as could be emitted by an eight inch sewer, the size sewer originally constructed, and to operate said sewer as an open sewer as it was originally constructed, and the appellant would not be liable for any damage to Block 149 because thereof; and it would not be the duty of the appellant to do anything or to take any measures to lessen the offensiveness of the odors therefrom. The only duty the appellant would owe would be to maintain the sewer properly as an open mouth sewer. We concede that the appellant owes the duty to properly maintain the sewer as originally constructed and that it would be liable for such damages as resulted from its negligence in such maintenance, i. e., for permitting breaks in the sewer to remain an unreasonable time after notice or for permitting the mouth of the sewer or the ditch into which it flows to become stopped so as to materially impede the flow of sewage and remain for an unreasonable time, after notice, if such increased the offensiveness of the odors.

The damages awarded in a condemnation proceeding for the taking of private property for public use, is not only damages for taking the property, but is an award for all damages present and future resulting as a consequence of the taking and use. And where private property is acquired by grant for public use, it is conclusively presumed that the owner has demanded and received full compensation for all damages present and future resulting as a consequence of the use.

Y. & M. V. R. R. Co. v. Davis, 73 Miss. 678, 19 So. 487; Sullivan v. Supervisors, 58 Miss. 790; Board v. Harkelroads, 62 Miss. 807; Richardson v. Board, 68 Miss. 539, 9 So. 351; Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; Y. & M. V. R. R. Co. v. Lefoldt, 87 Miss. 317, 39 So. 459; Braham v, Meridian Home Tel. Co., 97 Miss. 326, 52 So. 485; 43 C. J. 1147, 1149; 10 R. C. L. 155; Moore v. Swamp Dredging Co., Inc., 88 So. 522; Canton v. Cotton Warehouse Co., 84 Miss. 268, 36 So. 266; 65 L. R. A. 561; Railroad v. Brown, 64 Miss. 479, 1 So. 637; Railroad v. Stingily, 111 Miss. 237, 71 So. 376; City of Greenwood v. Guinn, 121 So. 160.

It must be borne in mind that the damages here claimed are to the property or land all of which was owned by the owner from whom the appellant acquired its right by grant at the time the right was acquired and that appellant's right was excepted in the deed by which appellee acquired his land and that the original right, contemplated, granted and acquired was that of emptying the sewage from an eight inch sewer into the ditch upon the land here in question. The original construction and operation twenty years or more ago was an open mouth sewer, which is the same construction and operation now. There is not involved here damages to land nota part of the land on which the right was originally acquired.

Harvey v. I. C. R. R. Co., 111 Miss. 835, 72 So. 273.

This court in the case of Thompson v. City of Winona, 96 Miss. 591, 51 So. 129, held that the emptying of sewage in a ditch by a municipality was a public use aud within the provisions of section 17 of the Constitution.

In Sturges v. City of Meridian, 95 Miss. 35, 48 So. 621, this court held the city had the right to maintain a drain, "as originally constructed" where the right had been acquired by prescription.

B. H. Loving and Frank A. Critz, of West Point, for appellee.

We take the position in this case that the trial court was correct in the rulings upon the instructions in question, for the reason, first, that appellant acquired no right to maintain a nuisance at the point in question by the Lagrone deed, nor by any prescriptive right that it might have obtained, and second, because appellant was negligent in the operation and maintenance of its sewage line and outlet at the point in question, because it failed to handle the sewage disposal there in a reasonable manner so as to prevent the same from being a nuisance.

No right to maintain and operate the nuisance was acquired by the Lagrone deed or by prescription.

State Hwy. Dept. v. Duckworth, 172 So. 148.

The action of appellant in maintaining and operating the nuisance in question to the damage of plaintiff without any grant, or authority so to do, is clearly tortious, and appellant is liable to appellee therefor under section 17 of the Constitution, and under previous decisions of this court.

Hodges v. Town of Drew, 159 So. 298.

A municipality has no right to maintain a nuisance any more than an individual has.

Crawford v. Town of D'Lo, 80 So. 377; Vicksburg v. Richardson, 90 Miss. 1, 42 So. 134.

Rights gained by prescription are limited in extent by the previous enjoyment and cannot be varied to the injury of others.

Harvey v. I. C. R. R. Co., 111 Miss. 835, 72 So. 273; Sturgess v. City of Meridian, 95 Miss. 35, 48 So. 620; Gould on Waters, sec. 342.

This court held, specifically, in the Harvey case that the casement acquired by prescription could not be enlarged by the construction of more culverts, or in doubling the capacity of those in use, and that the right to discharge the water through the culverts "must be limited by the character and extent of the right exercised during the prescriptive period."

Miss. Mills Co. v. Smith, 69 Miss. 299, 11 So. 26, 30 Am. St. Rep. 546.

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