Jones v. George

• Decision Date: 11 July 1921
• Docket Number: 21214
• Citation: 89 So. 231,126 Miss. 576
• Court: Mississippi Supreme Court
• Parties: JONES et al. v. GEORGE et al

89 So. 231

126 Miss. 576

JONES et al. v. GEORGE et al

No. 21214

Supreme Court of Mississippi

July 11, 1921

1 JUDGMENT. Elements necessary to plea of res judicata enumerated.

Before a plea of res judicata can prevail, four things must be shown: "First, identity in the thing sued for; second identity in the cause of action; third, identity of persons and parties to the action; and, fourth, identity of the quality in the person for or against whom the claim is made."

2 JUDGMENT. Drainage district not concluded by former adjudication against county.

A drainage district is a separate entity, a corporation with powers to sue and be sued, and is not an agent or subdivision of the county, and is not concluded by a former adjudication against the county relating to the same subject-matter.

3. WATERS AND WATER COURSES. Riparian proprietor entitled to free flow

A riparian proprietor is entitled to the free flow of water in rivers secured from undue interruption.

4. WATERS AND WATER COURSES. Riparian proprietor entitled to erect levees.

A riparian proprietor or drainage district is entitled to erect levees or such other works as will protect its lands from the accidental or extraordinary flood waters of a stream. No other riparian owner can complain of this action because of injury thereby inflicted upon him.

5. WATERS AND WATER COURSES. Erection of levees, eausing damage not actionable wrong.

By thus protecting themselves against these accidental or extraordinary waters of a stream, there is no invasion of a right of any other riparian proprietor. If they are damaged, it is damnum absque injuria, which damages are not contemplated by section 17 of the Constitution of 1890.

ETHRIDGE and COOK, JJ., dissenting.

HON. JOE MAYS, Chancellor.

APPEAL from chancery court of Leflore county, HON. JOE MAYS, Chancellor.

Suit by W. C. George and others against S. F. Jones and another for an injunction. Decree for complainants, and defendants appeal. Reversed, and bill dismissed.

Reversed, injunction dissolved, and bill dismissed.

Gardner, McBee & Gardner, Watkins, Watkins & Eager, and Pollard & Hamner, for appellants.

Gwin & Mounger, for appellees.

SYKES J. COOK, J., dissents. ETHRIDGE, J. dissenting.

OPINION

SYKES, J.

The appellees, complainants in the chancery court, in substance allege in their bill that the appellants, S. F. Jones and the Lake Henry drainage district, are threatening to repair a levee, originally built by Jones, which dams up Burr bayou; that some of the complainants are riparian owners on the Tallahatchie river, which is a navigable stream, while other complainants own lands a short distance from the river which they allege will be affected by the levee of Burr bayou. In this case and the companion case of Jones et al. v. Bell et al., 89 So. 237, this day decided, it is shown that the complainants in these two cases own lands on both sides of the river, both above and below Burr bayou, which is about seventeen miles measured along the course of the river above its confluence with the Yalobusha river and on the west side of the Tallahatchie river. This bayou is described in the bill as a large natural water course. The channel is stated to be from one hundred and twenty-five to three hundred feet wide and approximately fifteen feet deep, and is the center or thread of a natural depression, which depression is a part of a water course or bayou from one-quarter to one-half mile wide and from one to five feet deep. This bayou extends from its point of emergence from the Tallahatchie river, in a direction practically perpendicular to the course of the river, for a distance of one-half to three-quarters of a mile, where it gradually becomes shallow and widens into a large slough or depression approximately a mile in width and several miles long, inclining from both sides to the well-defined thread or channel, or said depression, which said portion of said bayou is known as "race track." When Tallahatchie river is at flood time--that is to say, when there is in said river a condition known as high water, a condition which now ordinarily and frequently exists, and has from time immemorial been habitually recurring, and is now apt at any time to recur, from rains and floods in the said river or its headwaters and tributaries--an enormous volume of water flows out of the Tallahatchie river through the said Burr bayou, including the depression of which it is the thread or center, and which, during such times, is filled bank full and flows with great velocity on through said "race track," the water in which latter is ordinarily during such times of great depth and more than a mile in width. This water flows thence into and through a low, flat hollow or depression from one and one-half to three miles wide, and three miles or more long, through sloughs, bayous, and brakes, into Lake Henry, a large natural water course, which in turn empties into Turkey bayou, a large natural water course, then into Quiver river, a large, natural water course, thence into the Sunflower river, a navigable stream, a point fifteen miles or more from the point of divergence of Burr bayou from the Tallahatchie river; there being thus a well-defined natural water course, variously named as above, but forming one connecting channel from the Tallahatchie river westwardly to the Sunflower river, through which the water from the Tallahatchie river has flowed in times of ordinary flood from time immemorial, and by which the Tallahatchie river, as to the territory which embraces the lands of the complainants, is entirely and permanently relieved of the vast volume of water hereinbefore described, and the continued existence of said outlet is necessary to carry out the water cast into the Tallahatchie river by ordinary and habitually recurring floods, and which has from time immemorial naturally, ordinarily, and habitually flowed along said water course into the Sunflower river.

The bill further charges: That just before the usual spring freshet in the Tallahatchie river in the year of 1911, when there was imminent and threatening a condition of flood tide, and high water caused by rains in the headwaters and tributaries in the Tallahatchie river, the appellant Jones, without the knowledge or consent of the complainants, erected and constructed across the channel of Burr bayou a levee, and during the flood of 1911 and other subsequently recurring periods of the condition of high water, the flood waters of the Tallahatchie river stood in the channel of Burr bayou. That this levee wholly obstructed and prevented the flow of water from the Tallahatchie river through this bayou during the period of high water, and that by reason of the construction of this levee there was collected an unusual and abnormal quantity of water, ponded and banked up in the Tallahatchie river, retarding the flow, increasing the volume, and augmenting the stage of water in the river, causing an unusual and abnormal rise of water in the river, and casting these waters upon the lands of the complainants, which lands had never been overflowed prior to the construction of the levee. That in the high water of the spring of 1912, when the Tallahatchie river was at the highest stage, a crevasse occurred in this levee, and a part of it was washed away. It is claimed that the remaining part of the levee obstructs the flow of these flood waters through Burr bayou.

The bill alleges: That the repairing and reconstruction of this levee, or of another levee across Burr bayou, will prevent the free and unhindered flow of the flood waters of Tallahatchie river through the bayou in times of high water, and will pond and bank up the waters in the river, and cause the collection of an unusual and abnormal quantity of water, retard the flow, increase to an abnormal extent the volume, and augment the state of water in the river, and cause an abnormal and unusual rise in the water of said river, so that the channel of the river will be in sufficient to carry off the water cast into it in times of ordinary and habitually recurring floods, causing the water in the river to run over its banks and upon the lands of the complainants, thereby overflowing lands which had never before been overflowed. That the lands of the appellant Jones, through which Burr bayou extends are embraced in the Lake Henry drainage district. That this drainage district has petitioned the chancery court to be granted an order to rebuild this levee across Burr bayou. The bill prays that both appellants be perpetually enjoined from repairing this levee or building another one across Burr bayou.

The bill in the case of Jones et al. v. eorge et al, further alleges that this controversy is res adjudicata, because of a decision rendered in the case of Leflore County v. Cannon reported in 81 Miss. 334, 33 So. 81; that two of the complainants herein were two of the original complainants in the Cannon Case; that in the Cannon Case the board of supervisors and Leflore county were perpetually enjoined from erecting or constructing or entering into any contract for the erection or construction of any dam or levee across Burr bayou, or in any wise obstructing said bayou, so as to prevent the free and unhindered flow of the flood waters of the Tallahatchie river through the same, without first making due compensation to the complainants for the damage resulting or to be inflicted thereby. That the other complainant in this case is a grantee of the other original complainant in the Cannon Case. That appellant Jones was one of the petitioners who requested the board of supervisors of Leflore county to build the levee involved in the Cannon Case. That the drainage commissioners of Leflore county are appointees and...