Mississippi State Highway Commission v. Thomas

• Citation: 202 So.2d 925
• Decision Date: 09 October 1967
• Docket Number: No. 44487,44487
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. Preston THOMAS, Jr., et ux.
• Court: Mississippi Supreme Court

Page 925

202 So.2d 925

MISSISSIPPI STATE HIGHWAY COMMISSION v. Preston THOMAS, Jr., et ux.

No. 44487.

Supreme Court of Mississippi.

Oct. 9, 1967.

Dunn & Singley, Meridian, for appellant.

Pigford & Hendricks, Meridian, for appellees.

INZER, Justice:

Appellees, Preston Thomas, Jr. and his wife, brought this suit in the Circuit Court of Lauderdale County against Mississippi State Highway Commission and Cobb Brothers Construction Company. They sought to recover for damage to their property alleged to have resulted from the activities of the appellant, Mississippi State Highway Commission, in reconstructing a public road. A non-suit was taken as to Cobb Brothers Construction Company and they are no longer involved in this litigation.

It was charged in appellees' declaration that they were the owners of the legal title and/or leasehold interest in the SW 1/4 of the SE 1/4; the E 1/2 of the SE 1/4 of Section 16; and the NW 1/4 of the SW 1/4 of Section 15, all in Township 6 North, Range 17 East in Lauderdale County. The Mississippi State Highway Commission, hereinafter referred to as Commission, took over a county road located north of their lands and reconstructed it into a paved state highway. This work involved changing the grade and surface of the road, widening the surface, and reshifting earthen material within the right-of-way. The Commission caused additional sand and clay to be brought in and placed on the road bed. Appellees charged that in doing this work the Commission caused the natural flow of water from the area to increase and carry with its flow, dirt, sand, clay and other materials down a natural drain into a lake located on their land.

It was also charged that as a result of the work, the lake was partly filled by debris, sand, clay and other material, rendering the lake unfit for commercial fishing purposes and as a watering place for cattle.

Appellees alleged that they had sustained losses of $1,000 as special damages for the loss of income and $10,000 damages for the depreciation in market value of their property. The Commission interposed a general demurrer which was overruled. It then answered denying that the appellees' land had been damaged, and that they were entitled to recover any damages. A verdict was returned and judgment rendered in favor of the appellees for $4,000. From this judgment the Commission appeals.

Appellant urges many grounds for the reversal of this case. We will notice only those which we deem material. It urges first that the trial court was in error in overruling its general demurrer, but recognizes that the demurrer was properly overruled if we follow our decision in Mississippi State Highway Commission v. Engell, 251 Miss. 855, 171 So.2d 860 (1965). In that case we held that when the Commission damages property as a result of public use Mississippi Constitution of 1890, Article 3, Section 17 imposes liability for such damage even though not the result of negligence. The Commission contends that this decision is in conflict with our decisions in Indian Creek Drainage District No. 1 etc. v. Garrott, 123 Miss. 301, 85 So. 312, and Jones v. George, 126 Miss. 576, 89 So. 231, and suggests that these cases were not considered in Engell. However, we examined these cases when considering the suggestion of error in Engell, and found that they were readily distinguishable from Engell and the cases cited therein. The Garrott and George cases involved damages caused by vagrant floodwaters which left the channel of the river and spread for miles over the river basin or adjacent valley. The Court in these cases characterized the waters as being vagrant floodwaters as distinguished from ordinary surface or rain waters, or regular running streams. Here as in Engell, we are dealing with damage caused by surface waters. It is apparent that the trial court was correct in overruling the general demurrer.

The proof in this case is sufficient to show that appellees were...