Moore v. Swamp Dredging Co.

• Decision Date: 06 June 1921
• Docket Number: 21825
• Court: Mississippi Supreme Court
• Parties: MOORE v. SWAMP DREDGING CO. Inc

88 So. 522

125 Miss. 842

MOORE v. SWAMP DREDGING CO. Inc

No. 21825

Supreme Court of Mississippi

June 6, 1921

1 DRAINS. Landowner held not entitled to damages to crops through enlargement of canal.

The landowner adjoining a right of way of a drainage canal cannot recover damages for injuries sustained to his crops caused by the damming up of the canal, which was made necessary in order to enlarge and dig deeper the canal, when this work is done in a proper workmanlike manner, in accordance with the plan legally adopted for its performance by the drainage commissioners. For all of this damage he, or his predecessor in title, is supposed to have been paid when the right of way was granted to the drainage district.

2 DRAINS. Successor of grantor to drainage district cannot sue for damages from construction or maintenance.

When a landowner has granted to a drainage district a right of way over his land for the purpose of constructing and maintaining canals and ditches, his successor in title cannot thereafter sue the district or the contractor for damages which resulted, either from its construction or maintenance, if the work was done in a proper workmanlike manner. All these damages caused to the landowner are presumed to have been paid for because of the grant.

3. DRAINS. No action by landowner for damages for construction or maintenance of ditches in proper workmanlike manner. Though the landowner may be damaged because of the doing of this work in a proper workmanlike manner, there was no invasion of his legal rights, and it is a case of damnum absque injuria, for which no action may be maintained.

4 DRAINS. Drainage district must exercise reasonable care and skill.

In the exercise of its privileges and powers a drainage district must exercise reasonable care and skill, and, if it be necessary to do a particular act in a particular manner, it may do so, though evil may result to others; but if the same act may as easily be done in another way, without hurt to others, it is the duty of the drainage district to adopt the nonhurtful method of exercising its powers.

5 CORPORATIONS. Corporation may use own as it will, if it does not injure others.

A corporation, as well as an individual landowner, within its charter powers, has the right to so use its own as it will qualified by the duty to so use it as not to injure others, if that be reasonably within its power.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Action by C. B. Moore against the Swamp Dredging Company, Incorporated, and others. Judgment on a peremptory instruction for defendants, and plaintiff appeals. Affirmed.

Affirmed.

Claude Clayton, Atty., for appellant.

It will also be observed that this appeal is predicated and based solely upon section seventeen of our constitution which provides: "That private property shall not be taken or damaged for public use," etc., and that this action is predicated upon that provision of said section which was incorporated into the constitution of 1890 for the first time. In the case of the City of Jackson v. Williams et al, reported in 46 So. 551, this court construing this provision of our fundamental law, used the significant expression: "Nothing is now so important to the private citizen as the question of the extent to which his right of private property may be invaded by a municipality and taken and damaged, etc."

This court again in the case of Sturges v. The City of Meridian, 48 So. 620, in a comprehensive opinion delivered by Justice FLETCHER, in my judgment, decides the proposition without any equivocation, and in diametrical opposition to the action of the learned circuit judge who gave the peremptory instruction in this case.

Once again this court speaking through Special Justice CAMPBELL, in the case of King v. Vicksburg Railway and Light Company in 42 So. 704, and in construing section 17 of our constitution says: "Due compensation is what ought to be made, i. e., what will make the owner whole pecuniarily for appropriating or injuring his property by any invasion of it cognizable by the senses, or by interference with some right in relation to property whereby its market value is lessened as the direct result of public use. This language is found in the opinion of the court at page 205 of said volume. On the same, Justice CAMPBELL says: "The Constitution, paragraph 17, makes the right of the owner of private property superior to that of the public, reversing the former rule that the individual might be made to suffer loss for the public."

We think also that the case of Thompson v. City of Winona, 51 So. 129, absolutely and without question is decisive of the question here presented.

It has been, we think, universally decided by this court that a drainage district is a quasi-municipal unit or subdivision, of the state, then, if this conclusion be true how can this case be affirmed in the light of the opinion rendered in Brahan v. Meridian Home Telephone Company, 52 So. 485, in an announcement of the law relating to such conditions. This opinion was handed down by the late Chief Justice MAYES, in which it was announced, that a municipality could not delegate authority to any one to injure or damage private property.

It will also be observed from the record, that even though Banks, a former owner of the land in question actually signed a petition to the commissioners requesting that the canal in question be widened and deepened, still this action upon his part, if true, was not shown by the testimony to have been brought to the attention of appellant, nor was same shown to have been placed on record prior to the time that appellant purchased the land in question. In the case of Robinson v. Mayor and Aldermen of the City of Vicksburg, 54 So. 859, Justice ANDERSON, in his opinion therein, says: "Private property shall not be taken or damaged for public use except on due compensation being first made to the owner thereof, etc." The petition signed by the appellant contained no expressed waiver. May a waiver be implied from a mere signing of the petition by him? Or may a waiver be implied by his signing the petition with the knowledge that in paving the street the city might find it necessary to change its grade? We think not. In our judgment such conduct ought not to operate as an estoppel. A constitutional right may not be so lightly waived.

The court will please bear in mind that we are not seeking to recover from the treasurer of the lower Coonewar drainage district, but this suit was brought against a corporation, The Swamp Dredging Company and D. W. Robins. In connection with this phase of the case we respectfully refer the court to the case of Mississippi Central Railroad Company v. Holden, 54 So. 851.

As bearing directly on the question presented we also refer the court to the opinion of Justice CALHOON in the case of Yazoo & Mississippi Valley Railroad Company v. Lefoldt, 39 So. 459, and the authorities cited in that opinion.

The testimony of appellant and his witnesses show, that he suffered a loss of thirty-five acres of the very finest alfalfa, on land that was in a very high state of cultivation; that this was a complete loss, and that it was occasioned by appellees in the work undertaken by them. Not only this, but that he also suffered a loss of fourteen acres of corn which also according to his testimony, was completely destroyed. Now in view of the above authorities what right (I do not speak of power) had the trial court to refuse the submission of this case to a jury?

I am perfectly familiar with the recent case of Stephens v. Beaver Dam Drainage District, which opinion was delivered by Chief Justice SMITH on January 3, 1921, and reported in 86 So. 641, which, in my judgment, has no application whatsoever to the allegations contained in the declaration in this case, and the facts as disclosed by the testimony of the witnesses. Chief Justice SMITH in paragraph two of his opinion decides, in my judgment, the identical proposition presented here. It is held in this case that a public corporation created in invitum cannot be held responsible for the act of negligence either of its officers, agents, or employees. The court will again bear in mind that we are not seeking to recover from the drainage district. If appellees in performing their contract had used therein a sufficient amount of dynamite to have blown appellant's entire farm clear over the smoke stacks, of eternity, could it be held in the light of the above opinion of this honorable court that there would be no liability?

We respectfully submit that this case should be reversed and submitted to a jury under proper instructions.

Robins & Thomas, for appellee.

The appellant's learned counsel bases his case, in his brief to this court on section 17 of the constitution of Mississippi, that private property cannot be taken or damaged for public use, except on due compensation being made to the owner.

He seems to have the idea, because of this constitutional provision, that any and all damage to private property is protected, no matter when or how it occurs. He loses sight entirely of the doctrine expressed in the legal maxim "damnum absque injuria."

This principle, which lies at the threshold of the consideration of this case, is thus expressed: "To constitute an injury, there must be a violation of some legal right, and there are many cases in which a person may sustain actual damage, without sustaining any legal injury." In such cases the damage is damnum absque injuria--damage without injury--and no cause of action arises in favor of the party sustaining it against the party by whose act it was caused. 1st Corpus Juris, title, "Actions," page 964.

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