Lee v. Indian Creek Drainage Dist. No. 1 of Panola, Quitman and Tunica Counties, 42492

• Decision Date: 21 January 1963
• Docket Number: No. 42492,42492
• Citation: 246 Miss. 254,148 So.2d 663
• Parties: Ethel Carter LEE v. INDIAN CREEK DRAINAGE DISTRICT NUMBER ONE OF PANOLA, QUITMAN AND TUNICA COUNTIES, Mississippi and W. D. Garrett, Jr.
• Court: Mississippi Supreme Court

Page 663

148 So.2d 663

246 Miss. 254

Ethel Carter LEE v. INDIAN CREEK DRAINAGE DISTRICT NUMBER ONE OF PANOLA, QUITMAN AND TUNICA COUNTIES, Mississippi and W. D. Garrett, Jr.

No. 42492.

Supreme Court of Mississippi.

Jan. 21, 1963.

Roberson, Luckett & Roberson, Clarksdale, for appellant.

Dulaney & Dulaney, Tunica, McClure, Fant & McClure, Sardis, for appellee.

RODGERS, Justice.

This is an appeal from a decree of the Chancery Court of the First Judicial District of Panola County, Mississippi, in a condemnation proceeding brought by the Indian Creek Drainage District Number One of Panola, Quitman and Tunica Counties (hereinafter called the Drainage District) against appellant and W. D. Garrett, Jr., lessor, to acquire a certain 55.72 acres of land described in the petition. The petition seeks the acquisition of a perpetual easement for flood purposes on the lands of appellant, on which W. D. Garrett, Jr. has a lease.

The proceedings herein were instituted in the chancery court under the provisions of Sec. 4692, Miss.Code 1942, Rec. et seq., and written objections were duly filed, as provided for in this Code section. The appraisement by the commissioners and objections filed by the landowner and lessee were in due time heard by the chancellor, on oral and documentary evidence. A decree was rendered by the court sustaining the application of the drainage district to acquire the land described in the appraisement for the purpose of flood control. The appraisement of the commissioners was raised from $4,279 to $6,000. The decree directed that the total sum awarded be allocated between the landowner and the lessee so that the landowner will receive $5,035.45 and lessee $964.55. The landowner appealed.

Appellant, Mrs. Ethel Carter Lee, complains that the decree of the chancery court should be reversed, and assigns seven grounds for reversal. The errors assigned may de divided into two general propositions, namely: (1) The chancellor erred in the amount he established as the value of appellant's reversionary interest. (2) The allocation or division of the proceeds of the damage to the land under the 'before and after rule' was wrongfully or erroneously set up by the chancellor because appellant is, as a matter of law, entitled to the value of her reversion, plus rents which are lost by the taking of the easement by the Drainage District, and an abatement for the present payment of the rent. Appellant contends that the lessee is only entitled to the difference between the rental value of the unexpired term and the rent reserved in the lease. The appellant also contends that the chancery court should have required the drainage district to have paid into court a sum equal to the damage done the landowner and the lessee, and that the decree should not have awarded lessee, W. D. Garrett, Jr., any part of the landowner's reversionary interest, either as profits on his rental contract or by way of abatement of future rents.

The first question that presents itself is simply, Did the chancellor allow appellant enough for her reversionary interest in the land acquired? The answer to this question of course involves the entire lawsuit because a full discussion is necessary to determine her reversionary interest. We begin therefore by discussing the total damage to the entire property to be acquired by the Drainage District by reason of the easement to flood the land here involved.

The petition seeks the acquisition of a perpetual easement on the land described for the following reasons:

'(a) For the permanent storage and temporary detention, either or both, of any waters that are impounded, stored, or detained, by floodwater retarding structure, designated as site Y-9a-14 in the aforesaid amended plans of the district for Yazoo River--Indian Creek Watershed, the same to be located on the DeWitt T. Hicks Farm.

'(b) Said easement shall include the right of ingress and egress, at any time, over and upon the above described land of the said Ethel Carter Lee for maintenance and inspection.

'(c) That the said Ethel Carter Lee, her heirs and assigns shall have the right and privilege to use the above described land at any time, in any manner and for any purpose not inconsistent with the full use and enjoyment thereof by the complainant, its successors and assigns, of the rights and privileges herein sought.'

It is the contention of appellant that since the petition seeks acquisition of an easement 'For the permanent storage and temporary detention, either or both, of any waters that are impounded * * *', that the entire 55.72 acres becomes valueless, and, moreover, since the Drainage District has a right to flood the entire tract, it must be assumed that appellant cannot use this tract nor will she be able to cross the land acquired to reach seven acres of farmland she owns on the other side of a creek, away from the main body of her property.

However, it will be observed that immediately following the above-quoted, these words appear: '* * * stored or detained, by floodwater retarding structure, designated as site Y-9a-14 in the aforesaid amended plans of the district for Yazoo River--Indian Creek Watershed, the same to be located on the DeWitt T. Hicks farm.' What is meant by floodwater stored or detained by a retarding structure mentioned in the amended plans and which is located on the farm of DeWitt T. Hicks? The testimony shows that the plans require the construction of a dam on the property of Mr. Hicks, which is below the property of appellant. This dam will be constructed so as to permit water to drain through the dam in a 36-inch pipe to let the water drain out in stages until it has reached a predetermined level. The final level of water permanently impouded by the dam will cover .86 of an acre on the land belonging to appellant. The easement here involved does not seek to permanently impound more than one acre of water on the land of appellant, and on that basis the chancellor determined the damages to landowner and lessee.

The testimony introduced in this case as to the total damage to the land ranges from $4,000 to $9,997. Witnesses for appellant base their valuation upon the assumption that the entire tract will become valueless, and that seven acres of land across the creek will have a limited access. Witnesses for the Drainage District based their valuation upon the assumption that the property would be flooded occasionally but seldom to such an extent as to cover the entire property sought to be acquired. It was the contention of the Drainage District that the easement sought to be acquired on the property would not prevent the use of the land for pasture purposes, and for row crops most of the time, and that the easement would not interfere with the use of the land on the north side of the creek.

We believe it would serve no useful purpose to detail the testimony of the various witnesses because a careful reading of this record indicates that the chancellor's opinion as to total damages is not against the great weight of the evidence. Members of this Court may not agree with the result reached by the trial court as to damages done land by the acquisition of private property through eminent domain proceedings, but the jury (or chancellor, as the case may be) is the judge of the weight and worth of the testimony.

In the instant case we are of the opinion that the total amount of damages assessed by the chancellor, both as to reversionary interest of the landowner and damages done to the present value of the leasehold, is supported by the preponderence of the evidence.

The second proposition raised by appellant is that the allocation or division of the proceeds of the damages to the land under the 'before and after rule' was erroneously adopted and used by the chancellor in this case because the landowner was entitled to her reversionary interest in the land, plus rents due which are lost because of the taking of the easement, less an abatement for the present payment of rent. This proposition has given this Court considerable concern because many years ago it adopted the minority view upon the question of apportionment of compensation awards between the landowner and lessee, and for that reason we have again carefully reviewed the authorities on this proposition.

We are convinced that the chancellor was correct in requiring the litigants to develop their case as to damages under the so-called 'before and after rule.' This rule has been expressed by this Court in the following language: 'When a part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking, without considering general benefits or injuries resulting from the use to which the land taken is to be put, that are shared by the general public.' Mississippi State Highway Commission v. Hillman et al., 189 Miss. 850, 198 So. 565. We pointed out the rule and listed authorities on the question of permanent damages to land in the case of Union...