Jones v. Board of Miss. Levee Com'rs

• Decision Date: 23 November 1914
• Docket Number: 16542
• Citation: 66 So. 413,108 Miss. 149
• Parties: JONES v. BOARD OF MISSISSIPPI LEVEE COM'RS
• Court: Mississippi Supreme Court

66 So. 413

108 Miss. 149

JONES v. BOARD OF MISSISSIPPI LEVEE COM'RS

No. 16542

Supreme Court of Mississippi

November 23, 1914

APPEAL from the chancery court of Bolivar county. HON. M. E. DENTON Chancellor.

Proceedings by W. S. Jones, against the Board of Mississippi Levee Commissioners to recover damages for land taken for public use. From a decree sustaining a demurrer to the petition petitioner appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Sillers Owen & Sillers, for appellant.

We contend that the cutting of the outer or old levee being necessary for the protection of the inner levee, that the cutting of the outer levee and turning in the waters of the Mississippi river on the lands of appellant and the homes of the people within this loop, was a taking and damaging of private property for public use within the constitutional sense. The case of Mary E. Hughes v. The United States, decided in the court of claims is a case in point, but not as strong as the case before this court.

In the case of Pumpelly v. Green Bay Company, 13 Wall. 166, the facts were as follows: "The lands involved were totally submerged by overflow waters. They were adjacent to the impediment placed by the defendants across the stream, and were so situated that the result of the improvement was to retard the natural flow of the water and accumulate such a volume of same at the situs of the works as to back up the overflow water upon the plaintiff's lands. It in effect amounted to a physical invasion and practical ouster of the plaintiff's possession." To same effect are: United States v. Great Falls Mfg. Co., 112 U.S. 645; United States v. Lynah, 188 U.S. 445; United States v. Williams, 188 U.S. 485.

By examining the authorities along this line it will be seen that any action which deprives an owner of his land whether it is dug up for levee purposes or covered up with levees, or covered over with water for public purposes--or by public improvements--is a taking for public use, if taking it is not certainly a "damaging for public use" within the constitutional sense.

The case of Commissioners v. Harkleroads, 62 Miss. 807, is the leading case on this point, and is followed by Richardson v. Levee Commissioners, 68 Miss. 539, and Duncan v. Levee Board, 74 Miss. 125. In the latter case our senior was counsel for the levee board and we think we are familiar with the rule laid down in these cases. There is nothing in these cases or other cases decided by our courts to justify the opinion that the levee board can turn river water in on landholders with impunity, and escape liability. Judge COOPER says in the Harkleroads case: "The overflowing water of the Mississippi river is the enemy of the public, and the state, in assuming to deal with the danger arising therefrom, has not provided for compensating owners of lands lying along the borders of the river for any injury which may incidently and possibly arise from confining the waters within the limits fixed by the line of levees."

The court says the river is the public enemy to be kept out, not to be turned in. It further says there has been no provision for "compensating the owners of the lands lying along the borders of the river" outside of the levee by raising the flood line on these outside lands. Nugent v. Levee Commissioners, 58 Miss. 197.

The only case that could suggest the idea that the landowner is not entitled to damages from overflow by river water, is the ruling of the court in the case of Richardson v. Commissioners, 68 Miss. 539, on drainage, in which the court says: "The expense of drainage on either side of the levee, made necessary to protect it from overflow or siepage of rain water, should be allowed, but not the expense of draining the overflow and siepage water coming from the river." This does not touch the instant case. In the Richardson case the court is dealing with waters that siep through the levee because of the porous condition of the earth or land on which the levee is located, without fault of the board, and with land left outside of the levee as the Harkleroads case, exposed to annual overflow of the river. It is not incumbent on the board to drain this sort of water off lands so situated and so exposed. See Richardson v. Commissioners, 68 Miss. 539.

The same rule laid down in the Richardson case is followed in Duncan v. Commissioners, 74 Miss. 125, and all subsequent decisions. There is no case like the case at bar that has ever come before our courts or any other courts that we can find.

Walton Shield, for appellee.

If it becomes necessary to build a new levee or to repair an old one, and any owner's land or personal property is taken or damaged thereby or if the drainage of his land is affected injuriously by the construction or repair of the levee, or if access to any part of his land is cut off or rendered more inconvenient thereby, then the commissioners to assess levee damages can consider this in making their awards, which had been done previously as to this petitioner, but all damages which come not as a result of the construction, repair and maintenance of levees but from the act tortious or not of any of the officials of the levee board, such as the cutting of a line of levee for any purpose whatever, the levee board is not liable because the taxes collected by it cannot be diverted for any such purpose. Suppose in a high water period the levee board, to protect the upper half of the district, should actually order by resolution, spread upon its minutes, the cutting of a line of levee in the lower half of the district, expecting thereby to save the upper line of levee. Clearly the persons injured by the turning of the overflow water of the Mississippi river in this manner upon their land, could not recover from the levee board; that is, the board could not divert the taxes to the payment of damages resulting to them in any such way. The question of the individual liability of the members of the board, or the officials responsible for such an act, is quite a different question from the question of the liability of the levee board for the same. This matter, we submit, is one which has become confused in the minds of the distinguished counsel representing appellant.

OPINION

COOK, J.

The record in this case is as follows, viz.:

"State of Mississippi, Bolivar County, First Judicial District.

"In Circuit Court.

"To the Clerk of the Circuit Court of Said County: The petition of W. S. Jones respectfully represents: That he is the owner of a tract of land embracing eighty acres in section 22, township 23, range 8 west, in said county; that said land is embraced between the old levee and the new Riverton Loop levee; that prior to April 11, 1912, the said land was fully protected from the overflow water of the Mississippi river, and was valuable farm land; that, on the said 11th day of April, 1912, the Board of Mississippi Levee Commissioners, as a precautionary measure to relieve the new line of levee from possible break in the old line of levee, cut the outer levee and turned in the water of the Mississippi river on said land, flooding and ponding the same to such an extent that petitioner's lands were flooded and crops and pasture land destroyed, and his cabins, outhouses, cribs, stables, fences, and other improvements were washed away, and the said land rendered practically valueless by being stripped of the improvements and left exposed to annual overflow from the opening made by the said Board of Mississippi Levee Commissioners in said outer line of levee.

"Your petitioner charges that the action of the said Board of Mississippi Levee Commissioners in cutting said outer levee and flooding petitioner's said land was, under the laws and Constitution of this state, a taking of and damaging said lands for levee purposes.

"Your petitioner claims compensation for any and all damages he has sustained by reason of the flooding of his lands and destruction of his property as alleged above.

"In consideration of the premises your petitioner prays that you forthwith issue a warrant, as required by law, to the sheriff of said county requiring him to summon W. C. Boyd, W. J. Alexander, and George W. Wilkerson, the commissioners to assess levee damages in said county, to go upon the ground on a day named in said warrant and view the premises and ascertain and determine the damages as provided by law in such cases, and to make an award in writing touching same, and to give the necessary notice required by law to the said commissioners, and that you issue a summons to the Board of Mississippi Levee Commissioners, directed to the sheriff of Washington county, summoning the said Board of Mississippi Levee Commissioners to appear and defend this petition as required by law."

"AWARD OF COMMISSIONERS.

"Whereas the Board of Mississippi Levee Commissioners have deemed it necessary, with regards to the following lands in the county of Bolivar and state of Mississippi, to cut the outer line of levee which protected the lands lying between the New Riverton Loop levee and the old or outer levee from overflow water from the Mississippi river into and upon the lands between said levees: Eighty acres of said lands between said levees being the property of W. S. Jones; and whereas, said owner claims compensation for any damage that may be sustained by said owners in consequence of said cutting of said levee; and whereas, we, the undersigned commissioners appointed by virtue of an act to amend section 3 of an act to amend 'An act to incorporate the board of levee commissioners of Bolivar, Washington and Issaquena counties and for other purposes, approved November 27, 1865, and to revise acts amendatory thereof,...