Hogge v. Drainage Dist. No. 7

• Decision Date: 14 April 1930
• Docket Number: No. 271.,271.
• Citation: 26 S.W.2d 887
• Parties: HOGGE et al. v. DRAINAGE DIST. No. 7.
• Court: Arkansas Supreme Court

26 S.W.2d 887

HOGGE et al. v. DRAINAGE DIST. No. 7.

No. 271.

Supreme Court of Arkansas.

April 14, 1930.

Appeal from Circuit Court, Poinsett County; G. E. Keck, Judge.

Action by R. H. Hogge and another against Drainage District No. 7 of Poinsett County. From judgment sustaining a demurrer to the complaint, plaintiffs appeal.

Reversed and remanded, with directions.

The circuit court sustained the demurrer of drainage district No. 7 of Poinsett county to the amended complaint of R. H. and Eva Hogge, filed in an action of trespass for damages to their lands resulting from the construction by the defendant of levees and dams to collect the waters of certain rivers and lakes which caused them to flow back on the lands of the plaintiffs and thereby permanently injure them and destroy the crops on them. The complaint contains numerous paragraphs, and we will only set forth the substance of the allegations which we deem material to a decision of the issues raised by the appeal.

Plaintiffs are the owners of a tract of land in Craighead county, and brought this suit for damages for permanent injury to their land and the loss of the crops growing thereon. Defendant, drainage district No. 7 of Poinsett county, is a levee and drainage district including a large part of Poinsett county and was duly organized pursuant to the provisions of Act 193, p. 1053, of the Acts of the General Assembly for the year 1917 and later amendatory acts. The said levee and drainage district extends from the foot of Crowley's Ridge on the west side of Poinsett county to Mississippi county on the east, and extends from the Craighead county line on the north to the Cross and Crittenden county line on the south. A map is filed with and made an exhibit to the complaint showing the boundary of the district and the nature of the improvement contemplated.

The drainage and levee district was created for the purpose of draining and reclaiming a vast quantity of swamp and overflow lands within its boundaries. St. Francis river rises in the state of Missouri, flowing southward into the state of Arkansas, entering Poinsett county on the north, and leaving it on the south boundary line of the county. The river flows in a southerly direction through the county. St. Francis Lake is situated in the northern part of the district, and Little river flows through the northeastern part of the district. Little river also rises in the state of Missouri and flows in a southerly direction through the northern and eastern part of said district. What is called Righthand Chute was constructed to carry water from Little river to St. Francis Lake. The lake is a basin into which is drained water from a large quantity of what is called sunk lands. St. Francis river is a navigable stream.

Said levee and drainage district constructed a large reservoir by a levee which was constructed on the west side of St. Francis river commencing at the line between Poinsett and Craighead counties and extending southward to about the middle of the county. Another levee was constructed on the right bank of Righthand Chute and extended in a southwesterly direction to near the center of the county. A dam was then constructed across St. Francis river which formed the southern boundary of the reservoir. At the southwest extremity of the reservoir a floodway was constructed extending southward to near the southern boundary line of the county. It was a half a mile in width at the foot of the reservoir and contracted to 100 feet in width at its mouth. The floodway is something over half a mile from St. Francis river and about a half a mile from St. Francis Lake. The waters from the lake and the river do not enter the floodway until they have overflowed the banks of both the river and the lake.

By the construction of the reservoir, vast quantities of water have been collected which formerly flowed elsewhere, and this has caused the waters to rise and flow back on the lands of the plaintiffs which are situated in Craighead county, Ark., outside of the limits of the district and which were not subject to overflow prior to the construction of said floodway and reservoir. During the middle of June and July, 1928, the defendant, by the construction of said levee and reservoir, obstructed the flow of the waters of St. Francis river and impounded the same to so great an extent as to cause said waters to flow back and completely overflow the lands of the plaintiffs and destroy their crops.

Plaintiffs elected to stand upon their complaint. Whereupon judgment was rendered against them for costs, and their complaint was dismissed. From the judgment rendered, this appeal was taken.

C. T. Carpenter, of Marked Tree, for appellants.

Chas. D. Frierson, of Jonesboro, for appellee.

HART, C. (after stating the facts).

The demurrer admits that plaintiffs' lands have been damaged for a public use and that the damage has not been ascertained or paid. This court has held that improvements for the protection of river valleys from overflow by building levees and draining them by constructing ditches may be united in one improvement district. The court has also held that a drainage and levee district, after building levees on each side of a river and constructing a reservoir thereby, has no right to build a dam at the outlet of the basin between the lower ends of the levees so as to cause flood waters to flow back and destroy the use of land for agricultural purposes; and that for injuries so caused, the landowners are entitled to compensation. Sharp v. Drainage District No. 7, 164 Ark. 306, 261 S. W. 923; and Keith v. Drainage District No. 7 of Poinsett County (Ark.) 24 S.W.(2d) 875.

In these cases the court had under consideration damage caused by this same levee and drainage district. A distinction is sought to be made between the principles of law as applicable to these cases and the present one, in that the lands in these cases were situated within the boundaries of the levee and drainage district, while in the present case they are situated in another county and without the limits of the drainage and levee district. This does not make any difference. There can be no doubt that obstructing a navigable or nonnavigable flowing stream, and thereby flowing the water back upon the land of another is such a damage as entitled the owner to compensation.

While this court is thoroughly committed in numerous cases to the doctrine that reclaiming lands bordering upon flowing streams by levees and drainage districts is a work of great public importance and should be encouraged whenever the courts can do so without violating legal principles in order to develop our state, still there are settled principles of law which courts cannot ignore. The established rule is that the ordinary course of flowing water cannot be lawfully changed or obstructed for the benefit of one class of persons to the injury of another without compensation in damages. Taylor v. Steadman, 143 Ark. 486, 220 S. W. 821, and cases cited.

In Ex parte Martin, 13 Ark. 198, 58 Am. Dec. 321, the court held that although the Constitution of the state contained no provision that private property shall not be taken for public use without just compensation, yet this prohibition upon the Legislature is implied from the nature and structure of our government, even if it were not embraced by necessary implication in other provisions of the Bill of Rights. The reason is that while the right of eminent domain is inherent in the sovereign power, equally so is the vested right to hold property in citizens, and the right of eminent domain means when the public necessity or common good requires it that the citizen may be forced to sell his property for its value.

Article 2, § 22, of our Constitution expressly provides that private property shall not be taken, appropriated, or damaged for public use without just compensation therefor. Numerous cases including levee and drainage cases are cited in the footnote of the section to the effect that under this provision, the inquiry is no longer confined to the question whether there has...