Homes, Inc. v. Anderson

• Decision Date: 25 May 1970
• Docket Number: No. 45693,45693
• Citation: 235 So.2d 680
• Court: Mississippi Supreme Court
• Parties: HOMES, INC. and Aetna Casualty & Surety Co. v. Mrs. Olivia M. ANDERSON et al.

Page 680

235 So.2d 680

HOMES, INC. and Aetna Casualty & Surety Co. v. Mrs. Olivia M. ANDERSON et al.

No. 45693.

Supreme Court of Mississippi.

May 25, 1970.

Bryant & Stennis, Gulfport, Bacon & Smith, Jackson, for appellants.

Louis Hengen, Biloxi, for appellees.

SMITH, Justice.

Homes, Inc., has appealed from a decree of the Chancery Court of the Second Judicial District of Harrison County under the terms of which Homes mandatorily was enjoined to construct 'such drainage title or ditch as may be necessary so that none of the water presently flowing into the lake from defendant's property through its drainage title will continue flowing into (appellees') lake,' and also 'such retaining wall or walls as may be necessary to prevent the continuous erosion of the property of Homes, Inc. into said lake.' In addition, Homes was ordered to pay various sums to the several appellees by way of damages.

A number of serious questions are presented by the appeal, most of which it will not be necessary to discuss in detail.

A careful review of the record, including the pleadings, topographical maps and the testimony of both the lay witnesses and the several engineers who testified, (these included the county engineer) compels the conclusion that the decree appealed from is manifestly wrong and against the weight of the evidence, insofar as its provisions for a mandatory injunction are concerned.

Appellees are the owners of land which lies immediately east of the land of appellant, Homes, Inc. Appellees were complainants below. The gravamen of their complaint was that Homes, Inc., in preparing its property for use as a subdivision, had cleared away trees, bushes and undergrowth that previously had slowed the flow of surface waters, through a natural drain or watercourse, across the northeast corner of its land and into an artificial pond on appellees' land, that Homes and installed drains to carry this surface water off its land and that this had resulted in silt and dirt draining into the pond. This pond had been formed by constructing an earthen dam across the natural swale, channel or watercourse through which this surface water theretofore normally had flowed.

Only surface water was involved. Prior to the improvement of its land by Homes, this water had flowed into the pond from two sources. One part of it came from lands, not here involved, which lie north of the public road bounding the lands of appellees on the north, and from thence, through culverts under the road, into appellees' pond; and two, some of it came from the north, through culverts under the road, onto appellants' land, where it drained southeasterly, across the northeast corner of appellants' land, through a natural creek, channel or swale, into the pond. After the clearing and improvement of appellants' land had been done, there was no more, no less and no different water than had flowed theretofore into appellees' pond, although the flow of that part of it which crossed appellants' land was no longer impeded by the trees, bushes and undergrowth, and this, together with the installation of drains, had the effect of accelerating its flow. It was established, without dispute, that these drains had the same fall, followed the same natural channel, and delivered this water along the same natural course, as theretofore, and alone which it had been accustomed to flow. This course, channell or drain was the same course, channel or drain which extended onto appellees' land and across which the levee had been constructed to form the pond. It is not clear from the evidence what proportion of this water drained into appellees' pond after crossing appellants' land and what proportion of it did not, but came directly into the pond from the north.

During the course of the clearing and improvement of the Homes' property, rains occurring during the summer months while the work was in progress, washed the loose soil and silt down the natural drain and into the northwest corner of the pond. In September and October an unprecedented amount of rain fell. Particularly heavy rainfalls occurred on September 6 and 7, when 3.42 and 5.01 inches of rain fell respectively. The next month also brought unprecedented rains with 8.42 inches on October 30. These rains caused the pond to overflow, and several loads of dirt were required to repair the dam. The cost of this repair was estimated by appellees at $200. The contractor, who was doing work for Homes, moved a dragline onto appellees' property for the purpose of removing the soil and silt. However, he was prevented by appellee Anderson, who ordered him off the property at the point of a gun.

Uncontradicted engineering testimony, supported by topographical maps of the area, is that 80 per cent of the silt which comes onto appellees' property comes not from appellants' land but from land belonging to Bailey Homes (dismissed by the court from the litigation upon the ground that complainants' bill had failed to state a cause of action against it) which lies north of the property here in question. It is also undisputed that this result was worsened through the action of Bailey which had increased the volume of water which came down from the north by digging ditches and canals which changed the natural drainage.

The testimony given by appellee Anderson was that 'the water came from * * * the north and south and it trickles westward through the underbrush of the property (of the appellant) * * * through a natural drain. * * * (T)here was a natural drain and it came in from the west into the...