Lauck v. Gilbert

• Decision Date: 12 April 1965
• Docket Number: No. 43226,43226
• Citation: 173 So.2d 626,252 Miss. 371
• Parties: O. D. LAUCK, d/b/a Meridian Memorial Park Cemetery v. Joe GILBERT.
• Court: Mississippi Supreme Court

Page 626

173 So.2d 626

252 Miss. 371

O. D. LAUCK, d/b/a Meridian Memorial Park Cemetery v. Joe GILBERT.

No. 43226.

Supreme Court of Mississippi.

April 12, 1965.

Lester E. Wills, Meridian, for appellant.

Holyfield & Goldman, Meridian, for appellee.

KYLE, Presiding Justice.

This case is before us on appeal by O. D. Lauck d/b/a the Meridian Memorial Park Cemetery, defendant in the court below, from a decree of the Chancery Court of Lauderdale County rendered in favor of Joe Gilbert, complainat, awarding damages to the complainant in the amount of $1500 for the wrongful obstruction of the natural flow of water through a large drainage ditch running through the western side of the Meridian Memorial Park Cemetery land and thereby causing water to back up on the land of the complainant lying immediately north of the defendant's land and to fill up with sand the ditches running through the complainant's land, and providing for the issuance of a mandatory injunction enjoining the defendant from maintaining the ditches on his property in such manner as to damage the property of the complainant, and ordering the defendant to perform such work as may be necessary to eliminate its obstruction to the natural flow of water complained of through the ditches or his property which drained the complainant's land.

The original bill of complaint was filed by Joe Gilbert on December 13, 1960. The defendants named in the original bill were O. D. Lauck d/b/a the Meridian Memorial Park Cemetery, and Dr. E. B. Robinson, Woodrow Edsel Cook and W. Walton Moore, Jr., trustees of the Meridian Memorial Park Cemetery Trust Fund.

The complainant alleged in his bill that the defendant O. D. Lauck was the owner in fee simple of a parcel of land, specifically described by metes and bounds as a fractional part of the SW 1/4 of the NW 1/4 of Section 21, Township 6, Range 15, in Lauderdale County, containing 20 acres more or less; and that the defendant O. D. Lauck was engaged in the business of operating and maintaining 'a memorial park cemetery wherein the right of sepulcher is sold under contract and agreement for perpetual care and maintenance of said cemetery.' The complainant further alleged that the defendants E. R. Robinson, Woodrow Edsel Cook and W. Walton Moore, Jr., were the trustees of 'The Meridian Memorial Park Trust Fund', pursuant to the terms of House Bill No. 170, Ch. 481, Gen.Laws of Mississippi 1958, known as the 'Cemetery Act,' and that said trustees were responsible for the care and maintenance of the cemetery located on the above described parcel of land, which care and maintenance included the proper care and maintenance of any ditches running through the cemetery property.

Complainant further alleged that the complainant was the owner of the NE 1/4 of the NE 1/4 of Section 20, and fractional parts of the NW 1/4 of the NW 1/4 of Section 21, all in Township 6, Range 15, in Lauderdale County, specifically described in the bill of complaint, lying immediately north of and adjoining the above described parcel of land owned by the defendant Lauck; that the defendant trustees held in their hands certain sums of money which they were required to use for the perpetual care and maintenance of the cemetery located on the above described property owned by the defendant Lauck.

The complaint further alleged that a large natural drainage ditch ran in a northerly and southerly direction and to the west side of the cemetery property; that the ditch originated on land north of the land owned by the complainant and had drained the land owned by the complainant for a period exceeding ten years prior to 1957; and that the complainant had the right to have the water draining from his property drained through the above mentioned ditch; that during the early part of 1957 the defendant Lauck attempted to purchase certain acreage owned by the complainant which adjoined the cemetery property, and the complainant refused to sell the land to him; and that following the complainant's refusal to sell the land to him the defendant began to fill up the above mentioned drainage ditch with logs, trash and other materials and had continued to fill up the ditch until the date of the filing of complainant's bill. Complainant further alleged that he had demanded that the defendant Lauck clean out the drainage ditch and maintain the same so that the water would continue its natural flow through the ditch unimpeded, but the defendant Lauck had failed and refused to take any action to clean out the ditch and maintain the same as a natural drainage ditch. The complainant further alleged that the defendant trustees had permitted the defendant Lauck to take the above mentioned action and had refused to take any action themselves to clean out and maintain the ditch, and had in fact disclaimed any responsibility for maintaining the ditch which ran through Memorial Park Cemetery.

The complainant further alleged that, as a result of the wrongful actions of the defendant Lauck in obstructing the flow of water through the above mentioned drainage ditch, the water which would have flowed naturally through said ditch had been caused to back up on the complainant's land, and that portion of the ditch which ran through the complainant's land had been caused to fill up with sand and dirt, and water which ordinarily would have been carried off by the above mentioned ditch had been caused to pond upon and remain upon complainant's land for days at a time, and to deposit sand upon the complainant's land. The complainant further alleged that, as a result of the wrongful actions of the defendant Lauck in obstructing the flow of water through the above mentioned drainage ditch, clover seed which complainant had planted on several occasions and fertilizer which he had placed upon said land had been washed away; that prior to the wrongful acts complained of the complainant's land was covered with rich soil especially adapted to farming purposes, but the land at the time of the filing of the complainant's bill was covered with sand. The complainant alleged that the defendant should be required to clean out and properly maintain the ditch running through his property, and the complainant should be awarded damages in the amount of $1500 to cover the cost to the complainant of cleaning out and restoring ditches on complainant's own property, which had been caused to fill up by the defendant Lauck's wrongful acts.

The complainant further alleged that the obstruction of the flow of water through the above mentioned ditch, as stated above, constituted a nuisance insofar as the complainant was concerned; that, if the complainant should clean out the ditches on his own property, they would fill up again with sand and dirt so long as the defendant was allowed to maintain such nuisance; that the damages complained of were tangible and substantial; and that the defendant should be enjoined from operating and maintaining such nuisance.

Complainant further alleged that the main ditch which ran through the western portion of the cemetery property was fed by a number of feeder ditches, one of which also ran through the defendant's property, and that the defendant Lauck had caused a levee or dam to be built across the ditch and had thereby caused the water which was accustomed to flow through the cemetery land to be diverted across the land owned by the complainant; and that as a result of the wrongful construction of said levee a portion of the complainant's land had been damaged by water running across it and standing on it, and in consequence thereof many trees had been lost during the flooding of the complainant's land.

The complainant prayed that on the final hearing of the cause the complainant be awarded a judgment against the defendant Lauck in the sum of $9,944.15, and that a mandatory injunction be issued requiring the defendant to abate the above mentioned nuisance and enjoining the defendants and each of them from maintaining said nuisance, and requiring the defendants to maintain the above mentioned ditch running through the cemetery property in accordance with the prescribed methods ordinarily followed in such matters.

On December 28, 1960, the defendants E. R. Robinson, W. Edsel Cook and W. Walton Moore, Jr., filed a general demurrer to the complainant's bill in which they alleged that there was no equity on the face of the bill, and that the facts alleged by the complainant in his bill did not state a cause of action against the trustees. The defendant trustees also filed an answer in which they denied that they were responsible for the care and maintenance of the cemetery, including the proper care and maintenance of ditches running through the property, and in which the trustees denied that they had any duty relative to the care and maintenance of the cemetery or the ditches on the property. The defendants also averred in their answer that they had no knowledge of the allegations of the complainant's bill relating to the drainage ditch running in a northerly and southerly direction to the west side of the cemetery property, or the actions alleged to have been taken by the defendant Lauck which resulted in the obstruction of the flow of water through said ditch. On January 16, 1961, the court entered an order sustaining the general demurrer filed by the defendant trustees and dismissing the complainant's bill as against the defendant trustees.

On February 14, 1961, the defendant O. D. Lauck filed a general demurrer to the bill exhibited against him alleging as grounds therefor the following: (1) That there was no equity on the face of the bill; (2) that the bill did not aver facts upon which it might be inferred that the complainant had acquired the right by prescription to concentrate the flow of water from his lands to the lands owned by the defendant; (3) that the bill did not aver any facts tending to show that the defendant was under any duty to the...