Nicholson v. Board of Mississippi Levee Com'rs

• Decision Date: 12 January 1948
• Docket Number: 36330.
• Citation: 33 So.2d 604,203 Miss. 71
• Parties: NICHOLSON v. BOARD OF MISSISSIPPI LEVEE COM'RS et al.
• Court: Mississippi Supreme Court

33 So.2d 604

203 Miss. 71

NICHOLSON v. BOARD OF MISSISSIPPI LEVEE COM'RS et al.

No. 36330.

Supreme Court of Mississippi

January 12, 1948

Wynn, Hafter & Lake, of Greenville, for appellant.

Dugas Shands, of Cleveland, and S. B. Thomas, of Greenville, for appellees.

Sillers & Roberts, of Rosedale, amicus curae.

ROBERDS, Justice.

Mrs Nicholson filed her bill in this cause against the Board of Mississippi Levee Commissioners, with jurisdiction of river levees in Bolivar, Issaquena and Washington Counties, in this State, and against Gerard Grafton and A. P. White, seeking to remove as a cloud upon her title the claim of the Levee Commissioners to a fee simple title to the lands involved in this suit, which lands are located in said Issaquena County and for a personal decree for the value of certain timber on said lands which was sold by the Commissioners to Grafton and White, who cut and removed said timber. In other words, Mrs. Nicholson says she owns the fee in said lands and the Levee Board has an easement for levee purposes. The Commissioners claim the Levee Board is the fee simple owner. Defendants filed a special and a general demurrer. The chancellor overruled the special, but sustained the general demurrer, thereby holding that the Levee Board had the fee simple title. From that decree Mrs. Nicholson appeals.

The question for decision on this appeal is the correctness of that holding as it is presented under the pleadings herein.

This necessitates a summary of the admitted facts set out in the bill, a construction of the pertinent statutes and their application to such admitted facts and to the wording of the awards condemning the lands for levee purposes, and the objects to be accomplished by the Commissioners.

The bill, after stating the claims of the respective parties to said lands, as above set out, further alleges that the lands 'are wild, uncultivatable and uninhabitable due to their situation on the river side of the main line levee in said district, but that said lands are valuable for the timber growing and standing thereon and the minerals lying thereunder. The Complainant and her predecessors in title have exercised all the ownership thereof to which said lands were and are susceptible including the payment of taxes thereon for a period of many years prior to the filing of this bill of complaint.' That the land had thereon, prior to the removal thereof, valuable timber, consisting of cottonwood, gum, oak, and willow; that she requested the Commissioners to permit her to cut and remove the timber in such manner and at such time as not to interfere in any way with the right of the Commissioners to use the lands for levee purposes, which request was denied, and that said Commissioners thereafter sold to Grafton and White the pulpwood for $1.25 per cord and all the other timber above twelve inches in diameter for $15.00 per thousand feet, and that said purchasers were in the act of cutting and removing the purchased timber when the bill was filed; that theretofore the main line of levee had been transferred by such Commissioners to the United States Government and placed under the jurisdiction of the Mississippi River Commission and the Engineers of the United States Army; 'that no material other than dirt or soil is necessary or proper to be used in the building, enlargement or repairing of said levee, and that the placing of timber logs or other materials, except dirt or soil on the levee is prohibited by the United States Government and the Defendant Levee Board in all specifications prepared and used by each of them'; that the cordwood and timber on said lands are not used or needed for the construction, maintenance or repair of the levees, nor need the same be cut and removed to aid in levee construction or maintenance. The demurrer admits the stated facts but not the conclusions. All title of the Levee Board was acquired by condemnation proceedings. The awards are exhibited as a part of the bill, there being twenty-two in number. There were no agreements with, or deeds by, the owners. Mrs. Nicholson was either the owner at the time of the condemnations or is the grantee of such owners.

We now set out the applicable statutes:

Chapter 1, Laws 1865, created into a corporate body 'The Board of Levee Commissioners of the Counties of Bolivar, Washington and Issaquena,' naming and appointing as commissioners two residents of each county. Section 3 imposed upon the commissioners the duty, and conferred upon them the power, to '* * * rebuild, strengthen or elevate the old levee, or make new embankments or levees, when they may regard such to be necessary * * *' in said three counties, upon the Mississippi River front, or such other places as the Board might decide; determine the base, height, slope and elevation of levees; abandon or repair old levees and build new ones 'on such ground as they may select,' and do all acts necessary to protect said counties from the overflow of said River.

Section 17 of said Act provided that if any owners of land '* * * shall object to the location or building of the levee on their lands' the Levee Board or landowner, by proper petition, could have a jury of freeholders or householders of the county ascertain the damages sustained and the compensation to which such owner is entitled, the verdict to be in writing and to be final.

Section 17 was first amended by Section 2, Chapter 276, Laws 1882, but the amendment does not bear on the question under consideration.

Said Section 17 was next amended by Section 3, Chapter 169, Laws 1884. That Act authorizes and directs the circuit judge of the district in which said three counties are located to appoint 'Commissioners to assess levee damages' if the landowner objects to the building of the levee on his land. The Commissioners take an oath that they will make a 'just and true award of the compensation to be paid any land-holder or land-holders or other person by reason of the appropriation of their property for the purpose of building, repairing or maintaining the public levee,' and in making up their award shall ascertain and determine the value of the 'land or material occupied or used * * * for the right of way of said levee or for other levee purposes, and also the damages caused to the owner's adjacent property by reason of the use of his land or other property for right of way for said levee or for other levee purposes.' Upon payment or tender of the award the Commissioners may proceed 'to locate and build the levee or use the property condemned. * * * The remedy hereby provided for determining the compensation and damages to be paid for the right of way and for the use of material and other property for the levees * * *' may be resorted to either by the Commission or any interested person. The Board may do so when it deems necessary to 'take and use any right of way, land, material or other property for levee purposes * * *,' the petition 'describing as nearly as may be the property taken or proposed to be taken'. This section authorizes the Commissioners to compromise or agree with the owners upon the damage or compensation 'on account of rights of way or material for the construction, maintenance or repair of levees,' and, lastly, the Commissioners are 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 232, Mississippi Constitution 1890, conferred on the Commissioners the power of '* * * erection, repair, and maintenance * * *' of levees in the district, and 'shall have power to cede all their rights of way and levees and the maintenance, management and control thereof to the government of the United States.'

Section 233 of said Constitution granted the Board 'authority and full power to appropriate private property * * *' in the district '* * * for the purpose of constructing, maintaining, and repairing levees therein * * *,' and if 'any owner of land, or any other person interested therein, shall object to the location or building of the levee thereon, or shall claim compensation for any land that may be taken, or for any damages he may sustain in consequence thereof * * *,' the Board, or any landowner, may have the damages determined under the procedure prescribed in Section 17, Laws of 1865, as amended by the Act of 1884 above set out.

Chapter 92, Laws 1904, amended the Acts of 1865 and 1884, and conferred upon the circuit judge power to appoint 'commissioners to assess levee damages,' such commissioners to take an oath to make a just and true award to the owners 'by reason of the appropriation of their property for the purpose of building, repairing, or maintaining the public levee.' The commissioners are required to determine the cash value of the land or material 'occupied or used, for the right of way for said levee or for other levee purposes,' and the damage caused to the owner's adjacent land 'by reason of the use of his land or other property for right of way for said levee or for other levee purposes.' That statute further enacts that 'The remedy hereby provided for determining the compensation and damages to be paid for the right of way and for the use of material and other property for the levees * * *' may be resorted to by the Board or the land owner and the remedy is exclusive, and 'When said levee board deems it necessary to take and use any right of way, land, material or other property for levee purposes * * *' the Board shall file the proper petition to have the damages ascertained. The Board is granted authority to settle or compromise claims for compensation or damages '* * * on account of the...