Dick v. Atchafalaya Drainage & Levee Dist.
Decision Date | 21 March 1927 |
Docket Number | 26321 |
Citation | 147 Miss. 783,113 So. 897 |
Parties | DICK v. ATCHAFALAYA DRAINAGE & LEVEE DIST. [*] |
Court | Mississippi Supreme Court |
1. LEVEES AND FLOOD CONTROL. Declaration for damages caused by construction of levee held demurrable for failure to show authority of drainage commissioners to construct such levee (Laws 1914, chapter 269).
Declaration in action for damages to land caused by construction of levee, alleging creation of district under Laws 1914, chapter 269, and completion of work contemplated with subsequent construction of levee on plaintiff's land without paying damages therefor, held, demurrable for failure to show authority of drainage commissioners to construct levee complained of.
2. MUNICIPAL CORPORATIONS. Public corporation is liable only for authorized, acts of officers, in absence of statute otherwise providing.
A public corporation, created in invitum for purpose of discharging a public function, is liable only for authorized acts of its officers and agents, in absence of statute otherwise providing.
3. LEVEES AND FLOOD CONTROL. Landowner's failure to appear pursuant to notice for construction of additional levee held not waiver of objection thereto or claim for damages (Hemingway's Code, sections 4445, 4446, 4468, 4478).
Failure of landowner to appear pursuant to notice by drainage commissioners for construction of additional levee authorized by Laws 1914, chapter 269, section 13 (Hemingway's Code section 4468), in view of Hemingway's Code, section 4478 construing word "ditch" therein to include levees and object to construction of levee, held not to constitute a waiver of any objection or claim for damages, since under Laws 1914, chapter 269, section 7 (Hemingway's Code, section 4445), and section 8 Laws 1914, chapter 271 (Hemingway's Code, section 4446), to the effect that commissioners' failure to return no assessment of damages shall be deemed finding that no damage will be sustained, is applicable only when such failure appears from assessment roll made pursuant thereto.
Suggestion of Error Overruled Sept. 26, 1927.
APPEAL from circuit court of Humphreys county.
HON. S. F. DAVIS, Judge.
Action by W. H. Dick against the Atchafalaya Drainage & Levee District. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.
Reversed and remanded.
H. F. Jones, for appellant.
We are brought to the interpretation of chapter 195, Laws of 1912, and chapter 269, Laws of 1914, to determine whether or not the appellee, Atchafalaya Drainage & Levee District, by its commissioners, proceeded in such a manner and in such conformity to the statute, or so substantially followed the statute in its proceedings in taking the property of appellant as to be a taking by due process of law; if not appellant is entitled to the reasonable worth of the property taken and the reasonable and proper damage sustained for the unauthorized taking and consequential damage.
Section 7 of the acts mentioned sets forth a comprehensive scheme for the organization of a drainage district, an assessment of benefits and damages flowing from the proposed drainage system; and by virtue of proceedings under this section land taken, assessments made, etc., have been determined to be "due process of law," but this district was a finished work for about seven years before the proceedings here, and the steps taken by the commissioners do not amount to "due process of law."
To assume that the commissioners acted under section 17 of this act is not well founded. See Indian Bayou Drainage Dist. v. Wall et al., 242 S.W. 575. The published notices do not call for landowners to propound their claims for damage. Belzoni Drainage Dist. v. Cobb, 102 So. 260.
Without doubt the commissioners of the Atchafalaya Drainage & Levee District did, or endeavored to do, the thing they were authorized to do and proceeded under section 22 of the drainage act, but in a manner not set forth therein, and apparently without due consideration of the terms expressed by this section.
All of the proceedings necessary to the organization of a now and independent district were necessary in order to acquire a right-of-way or interest in the lands of the plaintiff. Indian Bayou Drainage Dist. v. Wall et al., 242 S.W. 575, is practically identical with the case at bar.
The act under which the proposed improvement was made, chapter 195, Laws of 1912, and chapter 269, Laws of 1914, in section 7 designate exactly how such an assessment shall be made, and for an improvement as comprehensive, probably more so than the original improvement, the assessment should have been made with the same particularity. It is certainly to be believed that the legislature when enacting the law, having laid down with particularity the manner of making an assessment in section 7 of the act, deemed it superfluous to repeat in section 22 of the same act the things that the board of supervisors or the chancery court should do, or the drainage commissioners; but doubtless assumed that the same method of assessment would be followed in making such improvements.
We submit that until an assessment is made, in the manner required by chapter 269, Acts of 1914, and filed in the chancery court of Yazoo county, Mississippi, after due and proper notice is given to the landowner and an opportunity for the landowner to come into court where such proper assessment is exhibited for his information, that there is no taking of his land by due process of law so as to preclude his demanding damages in a court of competent jurisdiction for such taking and damaging of his property.
V. B. Montgomery, for appellee.
I. The commissioners complied with the drainage law. See sections 17 and 22 of the Drainage Act, being sections 4463 and 4468, Hemingway's Code.
In accordance with the wording of the statute, the commissioners employed an engineer to make the necessary surveys, profiles and plans and specifications of the improvements regarded as necessary. The profiles showing the location, length, width and height of said levee were prepared by the engineer and were filed by the commissioners along with the petition to the chancery court of Yazoo county, Mississippi.
Thereupon the said chancery court ordered the clerk to make the necessary publication. Notices were then issued by the chancery clerk and same were duly published both in Yazoo county, Mississippi and Humphreys county, Mississippi. Proofs of publication appear in the record and are strictly in accordance with the requirements of the statute.
Of course, it will be borne in mind that the improvements here constructed consisted of levees, while section 4463 provided. "The commissioners may at any time alter the plans of ditches and drains . . ." It does not provide for altering the plan of a levee. That is true because the word ditch, as used in the act, is expressly defined so as to give same the broadest possible meaning.
Accordingly, section 17 does apply to levees and opposing counsel admits that appellee complied with section 17, being section 4463, Hemingway's Code.
We understand opposing counsel to contend that appellee did not comply with section 22 of the drainage act in three respects: (1) Because the commissioners failed to make and file in the chancery court a new assessment roll; (2) because no proposition was made to borrow money and issue bonds in such sums and in the manner provided under section 15 of the drainage act; and (3) because no notice of any assessment or proposal to borrow money and issue bonds in the manner provided by law in section 15 of the drainage act was given.
A. It was unnecessary to file an entirely new assessment roll. Appellant cites and wholly relies upon the case of Hartsfield v. Carter, 134 Miss. 471, 99 So. 265. In this case this court was construing a drainage act which is entirely different in its provisions from the drainage act which the court is now called upon to construe. The holding of the Hartsfield case is eminently correct and proper. But it is not at all in point here. In that case, the district was organized under chapter 197 of the Laws of 1912.
In Clark v. Pearman, 126 Miss. 327, 88 So. 716, our court passed upon the principle here involved. The drainage act here involved was involved there. This court held that under chapter 195, Laws of 1912, the original assessment of benefits bound the lands to the amount of said benefits as, and when, additional levies were made upon same, in accordance with the provision of the statute.
Furthermore, section 22 of the drainage act expressly provides that: "The board of commissioners . . . for these purposes . . . may from time to time apply to the board of supervisors for the levying of additional assessments upon the benefits for the payment of said work or said bonds." Section 4468, Hemingway's Code.
The application to the chancery court in this case was accordingly for the right to levy an additional assessment upon the benefits. The assessment roll had long ago fixed these benefits. The drainage act expressly provided that no new assessment roll should be required; hence, construing together section 4445, Hemingway's Code and section 4468 thereof, it is plainly to be seen, as foreshadowed in the Clark case, that no new assessment roll was or could be authorized under the plain provision of this drainage act. It was necessary only for the commissioners to show to the chancery court and to notify the public just what the extension work was, how much same would cost and just how it was proposed to levy this cost against the benefits already theretofore assessed by the district. This gave every landowner the right to come in and have the court to settle all questions as to the necessity for...
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