Richardson v. Levee Com'rs

• Decision Date: 20 April 1891
• Citation: 9 So. 351,68 Miss. 539
• Parties: RICHARDSON & MAY v. BOARD OF LEVEE COMMISSIONERS
• Court: Mississippi Supreme Court

9 So. 351

68 Miss. 539

RICHARDSON & MAY v. BOARD OF LEVEE COMMISSIONERS

Supreme Court of Mississippi

April 20, 1891

FROM the circuit court of Issaquena county, HON. GEORGE WINSTON Judge.

By an act of the legislature, approved March 13, 1884, entitled "An act to amend an act to incorporate the board of levee commissioners for Bolivar, Washington, and Issaquena counties, and for other purposes, approved November 27, 1865 and to revise acts amendatory thereof," the right was given to said board of levee commissioners to appropriate any lands needed in the construction of levees in said counties along the Mississippi river. The said act provides for the appointment of three disinterested freeholders of each county, to be known as commissioners to assess levee damages and to these commissioners is given the exclusive right to assess and award compensation and damages for land or material taken or damaged in the construction, maintenance or repair of levees. It is provided that said commissioners in making up their award shall ascertain and determine "the cash value of 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 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, and such cash value and damages shall make up the sum of their award."

The appellants, Richardson & May, are the owners of a plantation in Issaquena county, lying along the Mississippi river. Owing to the constant caving of the banks and the consequent encroachment of the river upon the levees heretofore constructed by said board across their plantation, it became necessary, in the judgment of the said levee board, to construct a new levee across the plantation. Accordingly a line for the levee was surveyed, and the board of levee commissioners, by its president, made application under said statute for a writ ad quod damnum to ascertain the damages that would be suffered by appellants because of the construction of the levee. It was conceded that the line for the levee selected by the board of commissioners left between it and the remnant of the old levee about 420 acres of land, upon which stood about 33 cabins and other buildings, including a store-house, dwelling-house, and gin; some of these houses being within 200 feet of the river bank. The commissioners awarded to appellants $ 4070.49, from which award appellants appealed to the circuit court and recovered a verdict and judgment there for $ 4575, and being still dissatisfied, they appeal from that judgment to this court. Under the rulings of the lower court, the verdict included the value of the land actually taken at the rate of $ 50 per acre, the value of the growing crops destroyed, the damage to drainage, both within and without the levee. No allowance was made for damages to the land lying between the new levee and the river, caused by its exposure to overflow, nor for the expense necessary in removing houses from the unprotected to the protected side of the new levee.

Since the court in its opinion has not stated or noticed in detail the many errors assigned, but announces its conclusions as drawn from a survey of the whole case as presented by the record, it is deemed necessary at least to set out the instructions on both sides which were given by the court, the instructions refused to appellant being in the main the converse of those given for the appellee.

The instructions given at the instance of appellee, the levee board, are as follows:--

"1. The court instructs the jury that in estimating the amount of damage done to plaintiffs by the construction of the levee through their land, they will take into consideration two and only two, elements of damage: 1st. The actual cash market value of the land occupied by the levee line and barrow pits, to wit, 53 acres, and the damage to the two cabins thereon, and the value of the crops on the line of the levee, i. e., $ 638.99. 2d. The injuries to the adjacent property and land of plaintiffs, known at the time of the condemnation necessarily to result from the taking of the piece occupied for levee purposes.

"2. The court instructs the jury that in determining the fair cash value of the land taken, that is the land included in the levee line and barrow pits, they can take into consideration in connection with the opinion of witnesses given in evidence, the physical facts surrounding said lands which they may believe to be shown by the evidence, and which in their opinion affect the value of the land, such as proximity to the river bank, the rate of caving for the past four years, the probability of said caving continuing, if they believe there is such probability, and any other circumstances surrounding the property which may be shown by the evidence, and which in their opinion would affect one desirous of purchasing it."

"3. The court instructs the jury that, in ascertaining the value of the land actually taken, they are to be governed by what was the fair cash market value of it; that is, not the valuation that the owners may have held it at, or what they would have been willing to take for it, but what they could have sold said land for in the market at a cash price to a purchaser with the means to buy, and willing to pay its fair cash value, if they had been allowed a reasonable time in which to sell it.

"4. The court instructs the jury that as to the damages sustained by plaintiffs by reason of the building of the levee through their land, other than the actual cash value of the land taken, it is composed of two elements; first, the depreciation in the value of the property by reason of the inconvenience resulting from having it intersected by the levee; and, second, the damage done to the drainage of the plantation by the construction of the levee through it.

"5. The court instructs the jury that as to the land east of the new levee, if they believe from the evidence that it is affected by sipe water only when the overflowing waters of the Mississippi river are against the new levee, and that such damages from seepage water results from the overflow water being held back by the levee, then they will award nothing for such damage, as it results simply from an effort by the levee board to protect the land.

"6. The court instructs the jury that the levee board is not responsible for any damage that may result to the land outside of the new levee, from the fact that said board fails to protect it from overflow of the river, and that it thereby becomes subject to annual inundations from said river.

"7. The court instructs the jury that, as to the damage done to the drainage of the land outside of the new levee, if they believe it to be a fact that, on account of said land not being protected from the river water, it will hereafter be subject to overflow to the depth of from two to five feet annually, and that because of said overflow, and because of the fact, if the jury believes such to be true, that the new levee will hold said overflow water in said land, not permitting it to run off as if no levee was there, and will increase the depth of the same; that said land will be rendered partially worthless for agricultural purposes, then the court instructs the jury that the levee board is not liable in damages for such injury, and if from said causes said land will be rendered worthless for agricultural purposes, then the jury will allow nothing for damage to said land for agricultural purposes by rain water.

"8. The court instructs the jury that, if they believe the land outside of the new levee is injured but not rendered worthless by the rain water, and that it will be still further damaged by rain water, from the fact that the levee will obstruct its drainage, then they will allow only for such additional injury as they may estimate is suffered by the land from rain water in its depreciated condition, and in no event will they allow a greater amount for damages to drainage than the cost of draining said land by other drains, if they believe such other drains be feasible.

"9. In arriving at the value of the land taken, the true criterion shall be its cash market value, as exposed to overflow and caving by the rain prior to the construction of the new levee, and the jury shall eliminate from their estimation all value derived by the construction of said new levee."

The instructions given in behalf of appellants, Richardson & May, some of them containing modifications by the court, were as follows:--

"1. The court instructs the jury that the law provides that when private property is taken for public use, the owner must be paid full value for the land actually taken, and for the damage done to the adjacent property by reason of the taking of a part, and this compensation must be in money, and cannot be offset by any good that the taking of a part may do, and the jury in this case cannot consider any benefit that may result to the appellants by the building of the levee in reducing the damage their property may have...