Palmer v. Massengill, 38378

• Decision Date: 19 May 1952
• Docket Number: No. 38378,38378
• Parties: PALMER et ux. v. MASSENGILL et al.
• Court: Mississippi Supreme Court

Page 918

58 So.2d 918

214 Miss. 379

PALMER et ux. v. MASSENGILL et al.

No. 38378.

Supreme Court of Mississippi.

May 19, 1952.

Ely B. Mitchell, O. R. Smith, Stovall & Smith, Corinth, for appellants.

W. C. Sweat, Corinth, J. S. Finch, Booneville, for appellees.

ALEXANDER, Justice.

The action is in tort for the recovery of damages to land and crops allegedly caused by the wrongful act of the appellees in constructing a dam across their lands whereby the adjacent lands of appellants were flooded. From a verdict and judgment for the defendants, this appeal is taken.

From a voluminous record the following facts may be gleaned. Appellants own lands lying south of that of appellees and the trend of drainage is generally northward. The area in which all these lands are located is served by the Tuscumbia Canal which was constructed along the general course of the Tuscumbia River in Alcorn County. This canal, which flows northward, is intersected at several points by cross ditches, one of which, known as Hinkle Canal, drains northwestwardly into the Tuscumbia Canal on its west side. One count of the declaration is based upon the claim that appellees had unnecessarily dug another canal south of the Hinkle Canal thereby so accelerating the floodwaters on the west side as to cause the water to cross the canal and overflow plaintiffs' lands.

The dam, which was built by appellees, was about thirty-five feet at its base and approximately seven feet high. It was constructed upon the south side of appellees' lands just north of the line between the parties. It ran from the Tuscumbia Canal on the west and extended east for a considerable distance near the north line of appellants' lands. Its course intersected a slough in crossing which no bridge was built, but there was laid a four-inch tile drain to take care of such water as may collect in this slough.

An important factor in the picture is a stream or natural watercourse which came out of the hills to the southeast of the Palmer lands, and which formerly had been drained across the lands westwardly into the Tuscumbia Canal. This was sought to be accomplished first by a ditch which was found to be partly on the Massengill land. A second was constructed which, like the first, drained into the canal. There is a dispute whether the drainage from these ditches went into the slough or into the canal. A third so-called dragline ditch was cut by appellants which eliminated a sudden deviation of the course of the stream southwestward and projected its flow in a more direct line. This dragline ditch was about 950 feet long. It was not extended to the canal and there is a factual issue whether it extended to the bed of the slough or was left open at its west end, thereby casting its flow upon the surface of the land and overflowing the land of appellees. On this issue there was testimony that it was extended to the slough by an inconsequential continuation constructed by hand. Appellees testified that the waters were cast at large upon the surface of the Palmer land just north of the Massengill tract, and that the latter built the dam to fend off these vagrant waters.

The slough followed a course generally northward, and the issue whether it was a natural watercourse was sharply conflicting. We need not detail the evidence supporting the respective contentions. The issue was important, however, inasmuch as its identity as a natural watercourse would require the application of established legal principles. The course of the slough was north and practically parallel with the canal and at right angles to the dragline ditch and the dam.

The dam impounded floodwaters to a depth of about seven feet. It gave way in several places and was rebuilt. In its construction a ditch or borrow pit was dug along its north side. Appellants contend that this ditch could have been as easily and economically placed upon its south or upper side, thereby draining all the waters on the Palmer land, including any caused by the dragline ditch, into the canal, and that, therefore, it was the duty of appellees to so construct it as to minimize the damage to them.

The assignments of error are directed chiefly to the giving and refusing of instructions which purported to inform the jury of the respective rights and duties of the parties.

We examine first the instructions dealing with the slough as a natural watercourse. If it is such, it may not be destroyed or altered to the damage of the upper owner. Liles v. Cawthorn, 78 Miss. 559, 29 So. 834; Ferris v. Wellborn, 64 Miss. 29, 8 So. 165; Board of Supervisors of Quitman County v. Carrier Lbr. Co., 103 Miss. 324, 60 So. 326. A natural watercourse is one which has a well defined bed and banks of varying width and depth, through which water is conveyed and discharged into some substantial reservoir or body of water. Ferris v. Wellborn, supra; Belzoni Drainage Commission v. Winn, 98 Miss. 359, 53 So. 778. It is not necessary that there be a continual flow.

With these principles in mind as well as the fact of a conflict in testimony on the point, we quote the following instruction: 'The Court instructs the Jury for the Defendants that unless the old slough has a continuous channel, well defined, and well defined banks from Plaintiffs' land to Tuscumbia canal, it is not a natural watercourse.' The objection is that it...