Richardson v. Board of Mississippi Levee Commissioners

• Decision Date: 19 December 1899
• Citation: 77 Miss. 518,26 So. 963
• Court: Mississippi Supreme Court
• Parties: WILLIAM P. RICHARDSON v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS

26 So. 963

77 Miss. 518

WILLIAM P. RICHARDSON v. BOARD OF MISSISSIPPI LEVEE COMMISSIONERS

Supreme Court of Mississippi

December 19, 1899

December 1899

FROM the circuit court of Bolivar county, HON F. A. MONTGOMERY Judge.

Richardson the appellant, was plaintiff in the court below, and the Board of Mississippi Levee Commissioners was defendant there.

This case arose out of the construction of a levee, which has since become known as the "Huntington Short Line, " in Bolivar county. In 1897 the Board of Mississippi Levee Commissioners determined to construct a new levee, and the line of the proposed levee, instead of following the concaved bend of the river bank, as did the old line of levee, cut across said bend, leaving the old line of levee at a point a short distance above Huntington landing on the Mississippi river, and striking the old line again at a point farther down the river, the distance from the point of departure being, in round numbers, four miles by the new line and eleven miles by the old line, the proposed line thereby leaving outside of the levee line, or between the new levee and the river, a large body of land, a portion of which is owned by appellant.

The proposed line crossed, and when constructed would dam up, a bayou known as "Black Bayou, " rising on or near the land of appellant. The Board of Mississippi Levee Commissioners condemned the right of way for its new line but the proposed levee line did not touch the land of many of the landowners owning land between it and the old line of levee, and did not touch the land of appellant, but appellant claimed that his property would be damaged by the construction of said levee, from the fact that it would dam up Black Bayou, which drained his property, and appellee failing to summon the "commissioners to assess levee damages, " to assess the damages which would be inflicted upon his property, appellant filed a petition asking that said commissioners assemble to assess said damages, in accordance with which the commissioners did assemble, but an objection was interposed by the appellee to their assessing any damages, on the ground that under the act creating them they had no jurisdiction to assess damages except where the landowners' property was actually taken by the proposed levee, and that this proposed levee did not touch, and therefore did not take, appellant's property. The commissioners accepted this construction as correct, and rendered an award declining to assess damages for the reasons stated. From this award appellant prosecuted an appeal to the circuit court, and the same objection being interposed by appellee, said court concurred in the view adopted by the commissioners and dismissed the appeal, and from that judgment this appeal is prosecuted.

The case involves the construction of the act of 1884, chap. 169 page 163, et seq., and of secs. 17 and 233 of the constitution of the state of Mississippi, adopted in 1892.

The portions of the act of 1884 which it seems necessary to consider, are as follows:

After providing for the creation of the commissioners, the oath to be taken, that they will make a just and true award of the compensation to be paid any land holder, or land holders, or other persons, for the appropriation of their property for the purpose of building, repairing or maintaining the public levees, it provides that:

"Said commissioners, in making up their award, shall determine the cash value of the land or material occupied or used, or to be occupied or used, for the right of way of said levee, or for other levee purposes, and also damages caused to the owners' adjacent property by reason of the use of the land, or other property, for right of way for said levee, or for other levee purposes, and such cash value and damages shall make up the sum of their said award.

"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 used by the levees may be resorted to either by the said Board of Mississippi Levee Commissioners or any other persons interested, and shall be exclusive of all other remedies."

Secs. 17 and 233 of the constitution of 1892, so far as concerns this controversy, are quoted in the syllabus.

Judgment reversed and case remanded.

Alexander Y. Scott, for appellant.

Our discussion shall first proceed as though the constitution of 1890 was not in existence, and then we will discuss the meaning and intent of that constitution.

The damming of a natural water course, causing back flowage which floods lands, is a taking of private property within art. 1, sec. 10, of the constitution of 1869.

The argument may be presented from two points of view: (1) As to what appellants have lost; (2) as to what appellees seek to acquire.

1. The rights of a riparian proprietor in a nonnavigable water course are often seemingly treated by the authorities as an easement, and while the legal rules governing the rights of the parties and their remedies are the same as in easements, technically speaking the property one has in a stream is not an easement, but is part of the land itself, and is, in fact, real estate.

The authorities, as far as I can find, where the matter is discussed at all, treat this right as distinct and separate from an easement.

In Sokoe v. Singer, 8 Ell. & B., 31, the court say: "The right to the natural flow of water is not an easement, but a natural right."

And the right of an owner to have water come to and pass unobstructed from his property is "inseparably annexed to the soil, and passes with it, not as an easement, not as an appurtenance, but as parcel, " and is a corporeal right. Johnson v. Jordan, 2 Met., 234; Scriver v. Smith, 53 Am. Rep., 220-224; Washburn on Easements, 19: Ib., 276. It is a part of the inheritance, and passes with it. Angell on Water Courses, 90.

This right is an easement or appurtenance, but is inseparably annexed to the soil, and is parcel of the land itself. Wardsworth v. Tillottson, 39 Am. Dec., 391-394; Parker v. Griswold, 17 Conn. 300; Harding v. Stamford Water Company, 41 Conn. 92; Tillottson v. Smith, 64 Am. Dec., 355.

Rights in a natural water course can only be extinguished by operation of law, the act of God or the act of the owner. Mississippi, etc., R. R. Co. v. Mason, 51 Miss. 234-247.

It therefore appears that the right of the owner in a natural water course is a natural right, and that such right is actually land or real estate. It is a "parcel of land" "incident to ownership, " passes with the land, and can only be acquired in the same manner that the land can be acquired.

This natural right consists in a right to use the water for domestic purposes for man and beast, and for artificial purposes, such as irrigation and the driving of machinery. The right to the watercourse, and that it shall be maintained "as nature made it, " is actual real estate. The constitution says: "Private property shall not be taken." A natural water course, constituting the sole drainage of a large plantation, is a parcel of the land and necessarily "incident to ownership, " "passes with the land" not as an easement or appurtenance, but as parcel, is property within the meaning of the constitution, and has universally been held to be such. McCord v. High, 24 Iowa 336-348; Emery v. Lowell, 104 Mass. 13; Gardner v. Newburg, 2 Johnson Ch., 161.

The property which the appellant has in the water course is as absolute as the property in the land of his plantation, and is a corporeal thing, not incorporeal. Any interference with his rights in this stream is as actual an appropriation of his property, and as actual an ouster therefrom, as though the appellees had appropriated a part of the earth which goes to make up his plantation. The damming of this water course falls within the strictest interpretation of the word "taken."

If, however, the court should decide the authorities holding the above position are not well considered, there can be no doubt that the thing claimed, the right of drainage insisted upon by the appellant, is an easement. 10 Am. & Eng. Enc. L. (2d ed.), 398.

All easements are estates in land. Miles v. Munson, 108 N.Y. 453; Pinkum v. Eau Claire, 81 Wis., 301.

An easement constitutes a freehold estate. Chaplin v. Commissioners of Highways, 126 Ill. 264-273.

In Mississippi it is held that an easement is an interest in land, and a grant by parol is obnoxious to the statute of frauds. Bonelli v. Blakemore, 66 Miss. 136.

The period for acquiring an easement in land corresponds with the local statutes of limitations as to land. Alcorn v. Sadler, 71 Miss. 634-640.

An easement, being an incorporeal hereditament, an interest in real estate, attached to real estate and growing out of it, is property within the meaning of the constitution.

The constitutional provisions apply to all incorporeal hereditaments, as has been constantly and universally decided. Franchises granted to corporations are property. A grant of a franchise is not in principle distinguished from a grant of any other property. Dartmouth College v. Woodward, 4 Wheaton, 699-701.

In Theobold v. Louisville, etc., Ry. Co., 66 Miss. 279, the question presented to the court was, "whether the abutting owner of land on a public street has such an interest in the street as to require condemination, or his consent, before the street can lawfully be used by a railway company for constructing its tracks and operating its trains on the street, " and the court held that such use of the street would be a taking of the abutting owner's property within the meaning of the constitution.

The court, in this decision, recognized that there is a distinction made in some of the authorities between...