Duncan v. Board of Levee Commissioners

• Decision Date: 26 October 1896
• Citation: 20 So. 838,74 Miss. 125
• Court: Mississippi Supreme Court
• Parties: STEPHEN DUNCAN v. BOARD OF LEVEE COMMISSIONERS

20 So. 838

74 Miss. 125

STEPHEN DUNCAN v. BOARD OF LEVEE COMMISSIONERS

Supreme Court of Mississippi

October 26, 1896

October 1896

FROM the circuit court of Issaquena county HON. JOHN D. GILLAND Judge.

The appellant, Duncan, was the owner of a plantation in Issaquena county. It was bounded on the west by the Mississippi river and many years previous a levee had been constructed along, but some distance back from, the river which protected the land from overflow. The bank of the river was caving and the stream was approaching so near to this old levee as to endanger it. This condition of affairs caused the Board of Mississippi Levee Commissioners to determine that a new levee was necessary, and it proposed to build one, some distance to the east of the old levee, which would leave a part of Duncan's land outside, or west, of the new levee, and outside of its protection. The drainage of the land was to the east, away from the river. Some valuable houses were upon the land which would thus be placed between the old and the new levee. The levee commissioners, acting under the statute giving authority (Laws 1884, p. 163), instituted condemnation proceedings for the purpose of acquiring the right to construct the new levee on Duncan's land, and to ascertain the damages to be paid him. Commissioners were appointed in pursuance of law, who, having viewed the premises, made an award in which they gave Duncan damages, as follows: For land occupied by levee and barrow pits, $ 1, 069.20; for growing corn, $ 11; fencing, $ 116.20; land between levees, damaged by obstruction of drainage, $ 456; sipe ditch, $ 275.28; growing cotton, $ 141.50. Total, $ 2, 069.18. Duncan was not satisfied with the award, under the law cited, and took proceedings in the circuit court, objecting to the same. He specified as objections:

1. That the damages allowed by the commissioners to the land between the levees, occasioned by the obstruction of drainage, was too small, and should have been $ 2, 280.

2. The sum allowed for fencing was but one-half what it should have been.

3. The commissioners refused to allow anything for the damage to buildings and improvements situate between the levees, occasioned by the obstruction of drainage, or for the cost of removing said buildings. They should have allowed $ 3, 300.

These objections were all controverted by the appellee.

On the trial of the case in the circuit court, evidence was offered showing that the land between the levees would, because of the obstruction of drainage, be covered with water for a large part of every year, and tending to maintain each of the objections to the award. The court below instructed the jury, at the request of the appellee, to allow no damages to the houses or the land thrown outside of the new levee, and refused instructions asked by Duncan authorizing such allowances. The jury found a verdict giving Duncan $ 232.40, and this was for fencing alone. A judgment having been entered accordingly, and a motion for a new trial disallowed, Duncan appealed.

It will be noted that objection was not made to the allowance by the commissioners of $ 1, 069.20 for land occupied by new levee and barrow pits. While the record is silent upon the subject, it is presumed that this was paid.

Section 238 of the state constitution is as follows: "No property situated between the levee and the Mississippi river shall be taxed for levee purposes, nor shall damage be paid to any owner of land so situated because of its being left outside a levee."

Case reversed and remanded.

W. S. Farish and Calhoon & Green, for appellant.

The court below placed too rigid an interpretation on section 238 of the constitution. The section must be construed in reference to section 17 of the same instrument, which provides that "private property shall not be taken or damaged for public use, except on due compensation being first made, " and, being against common right as set forth in section 17, the construction should be stricti juris in favor of private right.

Neither the cases of Commissioners v. Harkleroads, 62 Miss 807, and Richardson v. Levee Commissioners, 68 Miss. 539, or section 238 of the constitution affect appellant's claim in this...