Covington v. Cassidy Bayou Drainage Dist
| Decision Date | 06 May 1929 |
| Docket Number | 27297 |
| Citation | 122 So. 205,154 Miss. 119 |
| Court | Mississippi Supreme Court |
| Parties | COVINGTON et al. v. CASSIDY BAYOU DRAINAGE DIST |
APPEAL from chancery court of Quitman county.
HON HARVEY MCGEHEE, Chancellor.
Suit by W. T. Covington and others against the Cassidy Bayou drainage district. From a decree denying complainants the relief prayed for, they appeal. Affirmed.
Affirmed.
Lowrey & Lamb, of Marks, for appellants.
After agreeing and consenting to the entrance of a decree to the effect that this dam should not be erected, this defendant some two years afterward, did erect this dam at this same place.
The drainage commissioners and the drainage district, defendants, had the right, by themselves or their attorneys, to consent to the decree which was entered, this decree was valid and binding.
15 R. C. L., page 646, sec. 90; 5 Enc. of P. & P., page 962; Starling v. Sorrell, 100 So. 10; Banking Company v. Field, 84 Miss. 646; Dibrell v. Carlisle, 51 Miss. 785; N.C. & St. L. R. R. Co. v. United States, 113 U.S. , 28 L.Ed. 921; Swift & Co. et al. v. United States, decided by the Supreme Court of the United States in March, 1928, reported in U. S. Daily of March 20, 1928, and also Co-Op. Advance Opinions, No. 9 on April 1, 1928, and in 72nd. Law Edition; Deputron v. Young, 134 U.S. 241, 250-251; Ferris v. Welborn, 64 Miss. 29; Richardson v. Levee Board, 77 Miss. 518; City of Laurel v. Rowell, 84 Miss. 435; Hill v. Woodward, 57 So. 294; Berry v. Mendenhall, 61 So. 163; LeFlore County v. Cannon, 81 Miss. 334, 33 So. 81; Quitman County v. Carrier, 60 So. 326; Indian Creek Drainage District v. Garrott, 85 So. 312.
While these cases have been somewhat punctured by the later case of Jones v. George, 89 So. 231, the principal involved here is not disturbed.
Chapter 195, Acts 1912, under which this drainage district was organized provides by section 17 that the commissioners may at any time alter the plans.
Under this statute this district was organized and the order was made for the issuance of the bonds, but before the sale of the bonds the Act was amended by chapter 269 of the Act of 1914 by adding to this section a provision that the commissioners should not change the plans so as to lower the standard of efficiency of the proposed system of improvements.
Conceding, however, that the amendment is the law of this case, it does not and cannot apply so as to limit the power of the courts to protect the rights of citizens under the Constitution.
If, as alleged in the bill, the defendants were doing a thing in violation of the constitutional rights of the complainants, it was the right and the duty of the court to restrain them.
Richardson v. Levee Board, 77 Miss. 518.
Chapter 195 requires publication of notice to the residents and landowners of the district and section 3 provides for an appeal by the owners of property within the district and gives the orders and decrees the effect of judgments. The effect of a judgment, as an elementary principal, is to bind only those who are parties to the litigation.
In our view of this case it was not really necessary for the complainants to introduce any evidence except the record in case No. 1168 and evidence that the defendants had violated the decree in that case.
M. E. Denton, of Marks, for appellee.
In the decree appealed from, the lower court held that appellants "are estopped to enforce" the former agreed decree of 1920 and that finding must be affirmed on the question of estoppel alone, even if all other questions are pretermitted.
Mullins v. Taylor, 132 Miss. 551, 97 So. 5, citing 4 A. L. R. 1, note c. 73; Galloway v. Inglis, 138 Miss. 350, 103 So. 147, opinion 149; 10 R. C. L. 798, sec. 109, Notes 14 and 15; Kray v. Muggli, 45 L. R. A. 218; Kray v. Muggli, 54 L. R. A. 473, opinion 479.
It is true that mere silence will not work an estoppel in cases of this kind, but appellants were not merely silent. They agreed to the erection of the dam on its present site through their representative, Mr. Covington.
Appellants do not even allege in their bill that they have done equity or that they are willing to do it by complying with the terms of the agreed decree.
Griffith, sec. 82, page 177; Barrier v. Kelly, 82 Miss. 233, opinion 243-52.
As to Mandatory Injunctions to compel removal of obstructions, etc.
4 Pomeroy's Equity Jurisprudence, section 1359, pages 32-45 ; Pomeroy's Equitable Remedies, chapter 30, section 636.
The agreed decree of 1920 was invalid because it was directly in conflict with Laws of 1914, section 12, page 344, Hemingway's Code (1927), Volume 2, section 4979. The agreement to build the dam at Marks, instead of building it on the present site where it was to be built according to the original plans approved by the court, constituted a change of plans; and under this statute no such change of plans can be made until notice thereof is published, and the property owners in the district given an opportunity to object.
The agreement embodied in the decree of 1920 was entered into between the attorneys in the case without the consent or knowledge of the drainage commissioners.
A drainage district constitutes a court of very limited and special jurisdiction, and can only speak through orders entered on its minutes.
Under the Hemingway Code (1927), sec. 4982 (Laws of 1912, chapter 195) the drainage commissioners are authorized to construct ditches and probably dams beyond the border of their district in order to obtain a proper outlet. The dam at Marks was beyond the borders of the district, and it was not "necessary to obtain a proper outlet." It is therefore doubtful whether the dam could lawfully be built at Marks at all; and, if so, the agreement to build it there as witnessed in the decree of 1920 is invalid.
Counsel may argue in rejoinder that Hemingway (1927), section 4979, did not take effect until February 26, 1914, which was three days after the drainage district was established; but it was enacted before suit was brought and a long time before the dam was built.
Nations v. Lovejoy, 80 Miss. 401.
Even when the statute is complied with, the only changes which can be made in the plans of drainage district are minor changes.
Armstead v. Southworth, 139 Miss. 753, 104 So. 94.
Under the statute, the agreement to change the plans of the district, as evidenced by the agreed decree was ultra vires.
Even if the agreed decree of 1920 were held to be valid, it is manifestly not res judicata now, since new equities and rights have arisen; and this would be true even if no questions were involved.
15 R. C. L., page 646, section 80, Note 2.
In its decree, the lower court found on the facts that Cassidy Bayou is not a flowing stream. It is not a natural watercourse as defined by this court and the drainage district had a right to dam it.
Indian Creek Drainage District v. Garrott, 123 Miss. 301, 85 So. 312; Jones v. George, 126 Miss. 576, 89 So. 231.
"Mandatory injunctions will never be granted unless extreme or very serious damages at least will ensue from withholding that relief."
The dam is a public road and cannot be destroyed without violating the criminal law.
A mandatory injunction will not be granted "where the injury complained of is capable of compensation in damages."
32 C. J. 24, note 35, citing Norfolk So. R. R. Co. v. Stricklin, 264 F. 546; Hausman v. Brown, 201 Ala. 331, etc.
This rule will be applied even to prohibitory injunctions, especially where the public will be inconvenienced by granting one.
32 C. J. 61, sec. 40, and notes.
"Except as changed by statute, an injunction will not be granted where the remedy at law for the injury complained of is full, adequate and complete."
"The granting of a mandatory injunction is largely a matter of the discretion of the court and depends upon the consideration of all of the equities between the parties." "An injunction will not be granted when the damages caused to defendant by removal would be greatly disproportionate to the interest which plaintiff claimed."
32 C. J. 147, notes 94 and 96; 32 C. J. 193-4, sec. 293; 32 C. J. 77, sec. 64 and notes; 32 C. J. 81, sec. 66.
The constitutional provisions against damaging property unless "compensation first made," does not apply. The proof shows beyond question that no damage occurred and that none was noticed until the unprecedented flood of 1927, and that therefore there was no damage or, at least, no way to prove or ascertain the amount of damages to pay before the dam was erected. Also, the district had a right to build the dam and, therefore, if there were any damages, they were damnum absque injuria.
Jones v. George, 126 Miss. 576, 89 So. 231.
The agreed decree of 1920 was not a decree of injunction and did not authorize the issuance of any writ of injunction. It shows that the complainants had voluntarily dismissed their bill before it was made and that it was entered after the dismissal. No cause was then pending.
Even if I am mistaken in saying that the agreed decree was not an injunction and even if it be regarded as enjoining appellee from constructing the present dam, appellee has shown good cause for reopening and vacating it, and this will be done.
22 Cyc. 971; 32 C. J. 389, sec. 659; 32 C. J. 433, sec. 742G.
Argued orally by P. H. Lowrey, for appellant, and M. E. Denton, for appellee.
Appellants filed the bill in this case in the chancery court of Quitman county against appellee, a drainage district organized under chapter 195, Laws of 1912, ...
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