McDonald v. Bd. of Mississippi Levee Com'rs, Civ. A. No. GC 83-256-GD-O.

• Decision Date: 22 October 1986
• Docket Number: Civ. A. No. GC 83-256-GD-O.
• Citation: 646 F. Supp. 449
• Parties: Charles G. McDONALD, Plaintiff, v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS and Newman Bolls, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

646 F. Supp. 449

Charles G. McDONALD, Plaintiff, v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS and Newman Bolls, Defendants.

Civ. A. No. GC 83-256-GD-O.

United States District Court, N.D. Mississippi, Greenville Division.

October 22, 1986.

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Charles R. Davis, Jackson, Miss., for plaintiff.

Stephen L. Thomas, Greenville, Miss., for defendants.

MEMORANDUM OPINION

DAVIDSON, District Judge.

The plaintiff, Charles G. McDonald, brings the instant action against the defendants, Board of Mississippi Levee Commissioners and Newman Bolls, asserting that the defendants have wrongfully deprived him of grazing rights on land that he owns. After hearing all of the testimony and reviewing all of the evidence, the court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure:

Facts

The plaintiff herein, a Baton Rouge, Louisiana resident, is the fee simple owner of approximately 898 acres of land in Washington County, Mississippi. The plaintiff purchased this land, known as Palmetto Plantation property, by special warranty deed from United States Gypsum Company on April 8, 1982 for $325,000. This special warranty deed was made subject to easements that had been obtained by the Board of Mississippi Levee Commissioners.

The Defendant, Board of Mississippi Levee Commissioners (hereinafter "Levee Board"), was incorporated under act of the Mississippi Legislature in November of 1865. Section 3 of Chapter 1 of the Laws of 1865 defines the powers and duties of the Levee Board as follows:

Section 3. Be it further enacted, that the said Board of Levee Commissioners shall have full power, and it is hereby made their duty to rebuild, strengthen or elevate the old levee, or to make new embankments or levees, when they regard such to be necessary, in the Counties of Bolivar, Washington and Issaquena, which levees shall be constructed upon the Mississippi River front, or such other places as the Board may determine; they shall have power to employ all engineers and agents necessary for the work; they shall determine the base, height, slope and elevation of the levee, and may abandon any portion of the old levee, that they may regard as improperly built or unsafe and may build new levees, repair old, on such ground as they select, and make all needful regulations, and do all acts necessary in their opinion to secure the Counties under their charge from the overflow of the waters of the Mississippi River.¹

Section 17 of the 1865 Act vested in the Levee Board the power to condemn private property for the purpose of locating, constructing, repairing and maintaining the mainline levees on the Mississippi River. It provides in pertinent part:

Said Board of Levee Commissioners is hereby authorized to enter upon, take, use and appropriate, any property in said levee district for the purpose of constructing, maintaining and repairing its said levee in accordance with the provisions of this section....

Section 14 provides that the Board may contract with any person for the maintenance of any part of the levee.

Article 11, Section 227 of the Mississippi Constitution of 1890 mandates that "a levee system shall be maintained in the state as provided in this Article." Additionally, Article 11, Section 233 of the Mississippi Constitution of 1890 provides:

The Levee Board shall have, and are hereby granted authority and full power to appropriate private property in their respective districts for the purpose of constructing, maintaining and repairing levees therein....

The Levee Board asserts that pursuant to these constitutional and statutory provisions it acquired easements over 244 acres of the land now belonging to the plaintiff. The Board further alleges that these easements give it the right to exclusive control of the land on the levee, including the right to exclude the landowner from enjoying the grazing rights on the levee land.

The Levee Board's easements at issue were acquired pursuant to statutory condemnation proceedings under Section 17, Chapter 1, Laws 1865, as amended by Section 3, Chapter 169, Laws 1884, as further amended by Chapter 92, Laws 1904. The easement awards were given between 1899 and 1948. Most of these easement awards provide that the purpose of the easement is to enable the Levee Board to "build and repair a levee."

The original drafts of most of the documents used in making these awards provided that the purpose of the easement was only to "build" a levee. In most of the awards the word "repair" was inserted by writing the word "repair" above the word "build." In at least one other document the word "build" was crossed out and the word "repair" inserted above it. Some of the original drafts of the awards provide that the purpose of the taking is to "build, enlarge, and repair" the levee. The awards further provide that the commissioners on the Levee Board have determined the damages to the landowner, including the cash value of the land taken in building, repairing and enlarging the levee. The awards then contain a space where the commissioners listed what was taken to repair and enlarge the levee and the cash value of that which was taken. For example, one award provides that $15.00 per acre was the cash value of cleared land, $6.00 per acre was the value of woodland. Other awards provide that the value of fences, cabins and stores removed from the land was included along with the damage to adjacent property. At least one of the awards provides that the amount paid per acre of land taken would be a certain price per acre if the timber on the land were not taken but would be a different price per acre if the timber were taken. Another award sets the amount paid for the timber taken without setting a certain price per acre. Other awards just set a certain price for each acre taken and other damage without specifying what exactly was taken.

The purpose of grazing cattle on the levee land is to insure that the grass on the levee is kept at an acceptable height. The cattle graze the tall vegetation but leave a short sod on the ground, thus protecting the levee from erosion. The Levee Board asserts that taking away the landowner's right to graze cattle on the land subject to the levee easement is necessary to properly maintain the levee.

The Levee Board has exercised control over the grazing rights on the subject land for at least 34 years. Since 1952, the Board has operated under a policy of granting maintenance contracts on the plaintiff's land to third parties. These contracts provide that the contractor will make sure that he has a proper number of cows grazing the land so as to keep a good sod on the land but is prohibited from grazing to such an extent that erosion becomes a problem. The contractor does not have to pay any money for the grazing privileges. Additionally, by entering these maintenance contracts, the Levee Board is able to keep its levee maintenance expenses at a minimum.

The Levee Board has granted maintenance contracts on two portions of the plaintiff's property. The first of the two current contracts is for the maintenance of the property from Station 5890 to Station 5982. This contract involves approximately 112 acres. The contract was granted to Cooper Farms, Inc. on August 25, 1980 and was to last for five years. The contract has expired, but the Levee Board is allowing Cooper Farms to continue grazing the levee pending the outcome of the instant suit.

Another maintenance contract was granted from Station 5982 to Station 6049 on the plaintiff's land. This contract covers approximately 132 acres of land and was granted to Thomas Fowlkes and Cooper Farms on August 13, 1981. This contract has also recently expired. Although both contracts have expired the Levee Board continues to assert complete authority over who will be allowed to graze cattle on the levee.

In the instant suit, the plaintiff claims that the Levee Board has no right to appropriate the grazing rights on the levee land that the plaintiff owns. He asserts that the Board has not acquired these rights by grant, condemnation, implication, or prescription. Further, the plaintiff asserts that the Levee Board's act of excluding him from using the levee land constitutes a taking of the plaintiff's property without due process and just compensation.

Prior to purchasing the Palmetto Plantation property, the plaintiff engaged a Greenville, Mississippi law firm to conduct a title search of the land. The plaintiff also consulted counsel in Louisiana, obtained a title certificate on the property, and obtained an affidavit by an agent of the grantor, United States Gypsum Company, concerning the claims against the subject property. Prior to or contemporaneously with his purchase, the plaintiff obtained a policy of title insurance on the property.

The special warranty deed that the plaintiff obtained on the land contained the following sentence:

This conveyance is made subject to the right of the Board of Mississippi Levee Commissioners, as reflected in the deed to Grantor at Book 454, Page 59 and as set out in the further Perpetual Easement Deed dated August 4, 1978, recorded at Book 1396, Page 309, of said Chancery Court Clerk's Office.

The deed at Book 454, Page 59 referred to in McDonald's special warranty deed was a deed from Anna W. Collins to United States Gypsum Company dated February 8, 1951. The rights of the Mississippi Levee Commissioners that the McDonald deed is made subject to are set forth in the Anna W. Collins' deed. The deed provides that the conveyance is made "subject to any and all easements owned by the Board of Mississippi Levee Commissioners". No specific rights of the Mississippi Levee Commissioners are specified in the conveyance. A map of the land that was the subject of the deed is attached to the Anna Collins' deed. An outline of a...