Russell v. Red River Levee Dist. No. 1

• Decision Date: 27 October 1913
• Citation: 160 S.W. 865
• Parties: RUSSELL et al. v. RED RIVER LEVEE DIST. NO. 1.
• Court: Arkansas Supreme Court

160 S.W. 865

RUSSELL et al. v. RED RIVER LEVEE DIST. NO. 1.

Supreme Court of Arkansas.

October 27, 1913.

Appeal from Circuit Court, Lafayette County; Jacob M. Carter, Judge.

Action by J. C. Russell and others against the Red River Levee District No. 1. From a judgment for defendant, plaintiffs appeal. Affirmed.

Appellants were the owners of certain lands situated in Lafayette county, Ark., and brought suit against the appellee levee district for damages alleged to have been done these lands by the construction of its levee. The levee district was organized under the act of the general assembly of this state of March 16, 1905, and, according to the allegations of the complaint, had, without condemnation or other legal proceedings, entered upon and appropriated a certain part of appellants' land, amounting to 20 acres, and had also constructed its levee across two natural waterways called Bull bayou and Maneese bayou, thereby completely damming up said bayous and overflowing the adjacent lands, which had formerly been drained by these bayous into Red river; that after the construction of the levee across these bayous near their mouths the water began to collect from a large scope of territory tributary to said bayous and spread out over the land and killed a large quantity of timber. It was further alleged that the levee was built across Bull bayou in 1907, but the construction of the levee was stopped before Maneese bayou was reached, and that bayou was left unobstructed; that thereafter in 1908 the accumulation of water was such that it broke said levee at Bull bayou, and the impounded water thereby made its outlet into Red river; that in April, 1909, the levee district again closed up Bull bayou, and also closed up Maneese bayou, without providing any means of escape for the accumulation of drainage water. Proof was offered tending to sustain all these allegations of the complaint, and the proof showed that when the levee was rebuilt across Bull bayou, it was raised and enlarged, and had since continuously impounded the water on appellants' lands. Appellants sought to excuse their delay in instituting this suit by testifying that they did not believe the levee would hold the water, and that they did not know the exact damage that would be done if the levees did not break. One of the appellants testified as follows: "When Bull bayou was dammed up, I was there one time, either just before or just after it broke through, and the water was then 2 feet high in the field, within 2½ feet of the high-water mark, and the river was 10 or 15 feet below the bank of the river in its channel. The levee washed out at Bull bayou and several other places, and the water that had been held by the levee went into Red river. They took the water off of these lands. Later on, say two years later, or something like that, they rebuilt the dam across Bull bayou and also built along down and closed up Maneese...