Leflore County v. Cannon

• Decision Date: 15 December 1902
• Court: Mississippi Supreme Court
• Parties: LEFLORE COUNTY v. EZEKIEL D. CANNON ET AL

33 So. 81

81 Miss. 334

LEFLORE COUNTY v. EZEKIEL D. CANNON ET AL

Supreme Court of Mississippi

December 15, 1902

October 1902

FROM the chancery court of Leflore county HON. A. Mc. KIMBROUGH Chancellor.

Cannon and others, appellees, were complainants, and Leflore county appellant, was defendant in the court below. From a decree overruling a demurrer to the bill of complaint the defendant appealed to the supreme court. The bill averred that one Jones and others had filed a petition with the board of supervisors of the county asking that a bridge across Burr bayou, on a public road, be replaced with a dam across that stream, because it was unsafe and impracticable to maintain a bridge there, and asking the board to advertise for bids to erect the dam; that, at a regular meeting? the board had made and entered on its minutes an order reciting that it was to the best interest of the county to grant the prayer of said petition, and granting same, and directing the clerk of the board to advertise for bids for the construction of the dam in accordance with specifications prescribed by the board that, in pursuance of said order, the clerk had advertised for bids. The bill of complaint further charges that the bridge is not unsafe, but in good condition; that the tearing down of the bridge and building a dam would be a profligate waste of the money of the county; that the proposed work is not urgent, nor a case of necessity; that the said order neither directs advertisements for sealed bids upon the contract to do the work nor that said contract shall be let at public outcry at the courthouse door, nor does said advertisement state the thing to be done or invite sealed proposals to be filed with the clerk of the board or elsewhere, or state that the contract will be let at public outcry at the courthouse door; that no plans or specifications were filed with the clerk before the advertisement of the letting of the contract was published that Burr bayou is a natural watercourse, making off from and flowing out from the Tallahatchie river, in which the water flowed in a well-defined natural watercourse, and had done so from time immemorial, and that the continued existence of said watercourse was necessary to carry off the water cast into it; that, if the dam be erected, irreparable special injury and damage would be inflicted upon complainants by the obstruction of the water in the bayou, causing it to overflow the lands of complainants. The prayer was for an injunction restraining the said board from erecting the said levee. A temporary injunction was granted. The county demurred to the bill of complaint, which demurrer the court below overruled and defendant, the county, appealed to the supreme court.

S. R. Coleman, for appellant.

The board of supervisors were enjoined by certain citizens of the county from exercising their discretion in the matter of a public road, or rather in the erection of a dam in lieu of a bridge over a stream in said county. Over this, having full constitutional jurisdiction, the courts should not interfere. 2 High on Injunctions, sec. 1240; 67 Miss. 470.

Being a matter of county police, under § 289 of the code, the board being the legislative body dealing with that matter, the courts cannot interfere. Tiedman's Lim. of Police Power, pp. 622, 623.

The petition presented to the board for the building of the dam across the mouth of Burr bayou not only shows the demand for the dam, rather than the bridge, to be for the public good, but also shows benefit otherwise accruing to the citizens of the county, and the doctrine of "salus populi suprema lex" appealed to the county legislature, and they were justified in assuming privatum incommodum publicii bono pensatur should apply to these complainants.

Supposing that the leveeing of this bayou would do to complainants all that they allege, will the supreme court sustain the injunction? We present to you a condition analogous to the one outlined in Railroad Co. v. Smith, 72 Miss. 677. Shall large portions of the most valuable, because the most productive, lands in the Yazoo delta be condemned to remain undeveloped, for want of a short levee, because riparian owners of the higher lands along the banks of the natural waterways may have the water raised upon their lands a few inches higher and for only a short period of time? Indiana Iowa, Missouri and California have declared that a person has the right to levee against flood waters, even though by so doing he deepens it upon his neighbor. 28 Am. & Eng. Ency. Law (1st ed.), 965,...