Indian Creek Drainage Dist. No. 1 of Quitman, Tunica, And Panola Counties v. Garrott

• Citation: 85 So. 312,123 Miss. 301
• Decision Date: 12 July 1920
• Docket Number: 21254
• Court: Mississippi Supreme Court
• Parties: INDIAN CREEK DRAINAGE DIST. NO. 1 OF QUITMAN, TUNICA, AND PANOLA COUNTIES ET AL. v. GARROTT ET AL

85 So. 312

123 Miss. 301

INDIAN CREEK DRAINAGE DIST. NO. 1 OF QUITMAN, TUNICA, AND PANOLA COUNTIES ET AL. v. GARROTT ET AL

No. 21254

Supreme Court of Mississippi

July 12, 1920

March 1920

1. WATERS AND WATER COURSES. Drainage district may divert flood waters upon outside riparian owners on river from which overflow has spilled, without liability.

A drainage district, for its protection, has a legal right to reasonably levee against and divert vagrant flood waters upon outside riparian owners on the river from which the overflow waters have spilled and spread generally over the adjacent lands of the basin; the damage resulting therefrom is damnum absque injuria.

2. WATERS AND WATER COURSES. River outlets may be obstructed to restrain vagrant flood waters spreading out from river channel.

The principle of "Aqua currit et debet currere ut currere solebat" is not applicable to the obstruction of vagrant flood waters which pass through natural outlets of a river and spread over adjoining valley lands; the obstruction and diversion of regular and natural stream waters of the stream obstructed, and ordinary rain and surface waters collected are within the maxim quoted. Such outlets may be obstructed in restraint of vagrant flood waters spreading out from the river channel.

3. EMINENT DOMAIN. Constitution does not contemplate compensation for damage without legal injury.

Section 17, Const. of Mississippi of 1890, providing that private property shall not be damaged for public use except on due compensation being first made, does not contemplate compensation for damage without legal injury, as within the principle of damnum absque injuria.

ETHRIDGE and Cook, JJ., dissenting.

HON. J G. McGOWAN, Chancellor.

APPEAL from the chancery court of Quitman county, HON. J. G MCGOWAN, Chancellor.

Suit for injunction by T. M. Garrott and others against the Indian Creek Drainage District No. 1 of Quitman, Tunica, and Panola Counties and others. From a decree overruling the motion to dissolve a temporary injunction theretofore granted, defendants appeal. Reversed, and decree rendered for appellants.

This is an appeal from a decree of the chancery court of Quitman county, Miss., overruling a motion to dissolve a temporary injunction theretofore granted the appellees, restraining and enjoining the appellants from repairing and extending a certain levee system constructed under the provisions of the act under which the drainage district has been organized.

The Indian Creek drainage district No. 1 comprises approximately forty-five thousand acres of land. It was organized on May 26, 1916; commissioners appointed, assessments levied; bonds issued and sold, and the general plans for the work necessary for the purposes of the district were approved by the court. One detail of the plan was the construction of a levee line extending from the northwest corner of the district to the southwest corner and along the entire western side thereof. The district contains lands in Quitman, Tunica, and Panola counties, Miss. The purpose of the levee system was to protect the lands included within the boundaries of the district from waters from the Coldwater river. The amount of the bonds authorized to be issued by the court was two hundred and fifty thousand dollars; of this amount one hundred and thirty-five thousand dollars had been expended in constructing the work in accordance with the plans and specifications; of the sum of one hundred and thirty-five thousand dollars, seventy-two thousand dollars was spent in excavating the various ditches and cleaning out the bayous in the district, and sixty-three thousand dollars was expended in constructing the levee.

During the early spring of 1919 an unusually large amount of water came down Coldwater river and overflowed its banks in a number of places, a portion of which overflow water was dammed up by the levee. The levee line was not entirely completed, and in two places where the work had not been finished the levee broke, releasing some of the water, and flooding approximately ten thousand acres or land in the district. The levee line is situated from one to seven miles east of Coldwater river, the line touching Coldwater river at its northern end, and, when completed will touch it at its southern end, Coldwater river making a big bend to the west between these two points. The appellees are all landowners, owning land on the western side of the said levee line, between it and the river, and many also on the western side of Coldwater river.

On account of the great importance of the decision of the questions involved we shall set out the substance of the pleadings in full, so that the case may be understood in its entirety. The proof follows the pleadings.

THE BILL.

The original bill filed by the appellees describes generally the location and organization of the said drainage district and Coldwater river. They also allege that a large part of the land belonging to complainants is situated between the drainage district and Coldwater river, and that the lands belonging to complainants are much higher and better lands than the lands in the said drainage district; that the lands of complainants prior to the construction of the said levee were high and above overflow, and further allege, in addition to the levee on the western boundary of the said drainage district, there was a levee on the northern boundary of the said district, and on the south side of Coldwater river, which was probably constructed by a small drainage district north of the defendant district, but charge that the said northern levee was in the defendant district and a part of the drainage and protection plan and scheme of the defendant district. The bill further alleges that the overflow waters from Coldwater river escape naturally in a southern and eastern direction, and prior to the construction of said levee the flood waters from said river flowed naturally to the east and south through the western part of the said drainage district into David bayou, Burrell bayou, and other bayous in the said district, and through the depressions in the land, finally returning to Coldwater river through Burrell bayou and through various small bayous and depressions in the land; that the said levee as constructed crosses and dams up several natural water courses, among others Rifle chute, which prior to the construction of the said levee was and had been for time out of mind the natural and proper outlet and way of escape for the overflow waters of Coldwater river, which flowed into Pompey Lake, and thence east through said chute into David bayou, and thence in a southerly direction into Burrell bayou, and returned to said Coldwater river, at the mouth of said Burrell bayou, several miles south of the southern line of the said drainage district; that said Rifle chute was and is a natural water course, with a well-defined bed and banks, through which the waters originally and usually, and for time out of mind, have flowed; that the said chute is completely dammed up by the levee on the west side of the district, and that said levee also dammed up a small natural water course about one-half of a mile south of the said Rifle chute, through which the flood waters flowed naturally, and have always flowed toward and emptying into David bayou, which was and is also dammed up by the said levee in the same manner in which the said Rifle chute is obstructed; that the said levee also crosses and obstructs many other sags and swales and chutes and depressions through which the flood waters from Coldwater river have always flowed naturally to the east and south through the lands now in the said drainage district, finding its way back into the said Coldwater river at points to the south; that at the junction of the said levee on the west of the said district, and said levee on the north of said district, the said levee crosses and dams up the said David bayou; that the said north levee also dams up and obstructs several escapes for the water of said Coldwater river. The bill further alleges that it is the purpose and intention of the said district to extend the levee south to a point on the bank of said Coldwater river above overflow, and to repair the breaks in the said levee, and to enlarge and strengthen the said levee so as to completely prevent the escape of any of the overflow waters of the said river to the south and east from the east point of said north levee to the south point of the said west levee.

The bill further alleges that there has recently been an overflow of Coldwater river, caused by excessive rains; that the said overflow was in excess of the usual annual overflow of the said river, but was by no means unusual or unprecedented, and was not in excess of many floods or overflows of the said river which have occurred in recent years, and was not in excess of the floods and overflows which are likely to occur at any time during the wet season; that because of the existence of said levee, the waters of the river in said recent overflow were diverted and thrown back upon the lands of complainants, which had heretofore been entirely above overflow from the said river; that most of the lands of complainants, which had never theretofore been overflowed by the river, were entirely inundated to a great depth, and much of the said lands which had been previously partially overflowed, and overflowed slightly, and upon which the water had remained only for a short time, and had done little or no damage, was overflowed to a great depth.

The bill further alleges that if the levees are repaired and completed and strengthened, so as to prevent the escape of the water, it will so seriously damage their said lands that they will be practically...