McGowan v. McCann

• Decision Date: 26 April 1978
• Docket Number: No. 50203,50203
• Citation: 357 So.2d 946
• Parties: John W. McGOWAN v. James E. McCANN.
• Court: Mississippi Supreme Court

Page 946

357 So.2d 946

John W. McGOWAN v. James E. McCANN.

No. 50203.

Supreme Court of Mississippi.

April 26, 1978.

David K. McGowan, Jackson, for appellant.

Adams, Forman, Truly, Ward, Smith & Bramlette, Everette Truly, R. Kent Hudson, Natchez, for appellee.

Before SMITH, P. J., and LEE and COFER, JJ.

SMITH, Presiding Justice, for the Court:

The litigation, out of which this appeal arose, was begun by appellant, John W. McGowan, by the filing of a bill of complaint in the Chancery Court of Adams County, praying that a prohibitory injunction issue, restraining James McCann, appellee, from continuing to dig, construct, enlarge or change a drainage ditch paralleling a road which provided access to oil drilling operations being conducted by McGowan, and that a mandatory injunction issue, requiring McCann to fill-in that portion of the ditch already dug.

McGowan was the owner, by assignment from Humble Oil and Refining Company, of certain oil, gas and mineral leasehold interests in land in Adams County, sometimes referred to as the Norman-Breaux "Swamp." An easement, also owned by Humble, granting it the right to build and maintain an access road for use in servicing oil wells located on the land, was also assigned to and is owned by McGowan. The land itself, encumbered by the leases and subject to the easement, is owned by appellee, James McCann. This land is subject to flooding during a considerable portion of the year; for example, in 1973 the flood waters remained upon the land for as long as 7 months. In times of flood, the road in question sometimes is also flooded.

The road is of sand, gravel and dirt. It is McGowan's only means of access to the wells and is essential to their operation and to their maintenance and repair. Considerable sums of money have been spent by McGowan in constructing and maintaining the road, and its maintenance is a continuing and substantial expense.

McCann purchased the land for farming purposes. At the time of the trial McCann had cleared approximately 7,000 acres and, according to the testimony, had invested some 5 and 1/2 million dollars in the project. The present controversy arose when McCann, in furtherance of his plan to use the land for farming, began constructing or cleaning out a drainage ditch which roughly paralleled McGowan's service road. A ditch following, in the main, the route of the ditch being worked on by McCann, has existed from the time the road was built. The depth of the original ditch is in dispute. Testimony offered by McGowan tends to show that it was no more than the result of the scooping up of earth for use in building up the road, and thus was only a shallow ditch, with gradually sloping sides. Testimony offered by McCann differs with this as far as the nature and depth of the old or original ditch is concerned. McCann and his witnesses describe the old ditch as having been much deeper, and McCann's activities in digging which are sought to be enjoined by McGowan are described as having been no more than a cleaning out of the original ditch which had, over the years, become "silted up."

The ditch which will result from McCann's work will have banks with a 1-1 slope, and apparently will vary in depth from 8 to 12 feet deep. An engineer, testifying for McGowan, said that the original ditch had been 11/2 feet deep and that the ditch resulting from McCann's work was about 12 feet deep. In his opinion the "new ditch", with its 1-1 slope, would cause the road to cave off into it within 5 years. He was of the further opinion that in constructing a ditch of that size its banks should not slope more steeply than 4-1. He also considered that McCann's work had created a safety hazard for traffic on the road. McGowan also offered a former field superintendent of Humble Oil and Refining Company. He was allowed to give an opinion that the new ditch, because of depth and slope, would cause the crown of the road and the gravel to wash away. He testified that the new ditch was about 3 feet from the road with a 1-1 slope and said that it should be 50 feet from the road with a 4-1 slope. He also said that the new ditch made the road unsafe.

Another witness for McGowan, who was engaged in the earth moving and road building business, gave it as his opinion that a ditch the size of the new ditch, with a 1-1 slope, would eventually "get the road." The owner of a firm known as Engineer Laboratories, took soil samples of the road and ditch through one of his employees. The witness testified that the material thus obtained was predominantly clay and that clay holds moisture well. But, the witness said, the clay in question was of "high" plasticity. He stated that "high" plasticity clay will erode easier than clay of "low" plasticity. He was allowed to give a "recommendation" that the ditch should be dug with a 4-1 slope.

Complainant-appellant himself testified that, in his opinion, the new ditch would cause the road to "slough off" into the ditch. He said that he would be willing to pay the cost of backfilling that part of the ditch already dug. He admitted that if the road caved it could be repaired but asserted that the cost in time and money would be prohibitive. He also said that the road in question provides the only means of access to the producing wells on the land.

The testimony for McCann was to the effect that there was little difference in depth between the original ditch and the new ditch. A witness who had hunted and fished on the land for some 15 years testified to that effect and that the work being done by McCann was a "clean out of the old ditch necessitated from the flood waters."

Another witness for McCann testified that he also had hunted and fished on the land and had been familiar with the old ditch and had seen the new ditch, and said that the new ditch did not differ significantly from the old ditch. He also testified that the original ditch had had very steep banks similar to those of the new ditch and that he had not observed any "sloughing."

A third witness testified that he too had known the land well since 1946, and was very familiar with the ditch and road in question. He testified that as far as depth was concerned there was little difference between the old ditch and the new ditch.

A professional engineer, testifying as a witness for McCann, said that he had made studies with respect to the present condition of the ditch and road. He said that the new ditch is from 4 to 8 feet deep. Photographs of the ditch and road were introduced. This engineer testified that the ditch is being constructed on a 1-1 slope but that this will not cause an erosion of the road because the land through which it runs is flat and the velocity of water which the ditch carries is low. He said that the ditch is from 3 to 12 feet distant from the road and that this distance is sufficient, the witness saying that many of the roads in the area were also built on a 1-1 slope and were holding well.

McCann himself testified that he had dug and was digging the ditch out to a depth of approximately 8 feet with a 1-1 scope. He said that this would not cause the road to cave in or slough off primarily because most of the surface water would flow into Cypress Bayou rather than into the ditch. He stated that he planned to put in 4 culverts under the road, at his own expense, to help with the drainage. He said that he had already cleared 7,000 acres and had invested 5 and 1/2 million dollars in...