Schlict v. Clark

• Decision Date: 30 April 1917
• Docket Number: 19027
• Citation: 75 So. 130,114 Miss. 354
• Parties: SCHLICHT v. CLARK, ET AL., DRAINAGE COM'RS
• Court: Mississippi Supreme Court

75 So. 130

114 Miss. 354

SCHLICHT v. CLARK, ET AL., DRAINAGE COM'RS

No. 19027

Supreme Court of Mississippi

April 30, 1917

Division B

APPEAL from the circuit court of Monroe county, HON. CLAUDE M CLAYTON, Judge.

Petition by D. E. Clark and others, drainage commissioners, against Johan Schlicht to condemn land for the construction of a drain. Award in eminent domain court for defendant for six hundred dollars and he appealed to the circuit court, where upon trial de novo, judgment was awarded for defendant for eight hundred and thirty-three dollars and sixty-four cents and defendant appeals.

The facts are fully stated in the opinion of the court.

Case affirmed.

J. L Lyon and Chalmers Alexander, for appellant.

The first assignment is that the court below erred in refusing to allow testimony in regard to fences, cost of fence, and inasmuch as the law in regard to damages because of drainage canals is in its infancy in Mississippi, and because there will be many similar cases, we respectfully urge attention to this question.

Can the owner of land, ex-propriated under eminent domain, bring in for consideration as a part of his damages the cost of fences and fencing along the land to be ex-propriated from him? The court below held to the negative. We insist upon the affirmative. The question was squarely put in the lower court. Mr. Schlicht was not allowed to testify as to fence or fencing or necessity therefor. And then, Mr. Paine, of counsel for Mr. Schlicht, page 72, put the proposition before the court, with result in the negative. And, page 140, the trial court refused an instruction which recites that the jury should have considered the matter of fences and should also have considered the matter of bridges, and here was fatal error. There is really something amusing in allowing the sovereign power to dig a thirty-foot canal for two miles through a fertile pasture land, and then refuse even a consideration (mental consideration) of the cost of a bridge even one bridge, across this canal placed through the property over the opposition of the owner. And as to the fences we propose to show that this was an item for consideration by the jury.

Under the chapter on Eminent Domain, Volume 10 of Second Edition of Am. & Eng. Encyclopedia of Law, says in discussing the measure and elements of compensation: "Cost of Fencing. In some states railroads are required to fence their rights of way. But where the character of the land thru which the road runs is such as to necessitate the fencing of the right of way in order that the adjoining land may be used in a safe and proper manner, if the company is not required to construct the fence, the cost of new fencing may be reckoned in the estimate of the landowner's compensation, provided the necessity for fencing affects the value of the land. Cases in California, Arkansas, Delaware, Illinois, Indiana Kansas, Kentucky, Massachusetts, Minnesota, Mississippi (61 Miss. 631), New Hampshire, New Jersey, New York, North Carolina, So. Carolina, Pennsylvania, Texas, Washington, Wisconsin, along and imposing array, are cited in the footnotes of the said text book page 1171. 10 Ency. Law (2d Ed.), 1171; Silver Creek Case, 64 Miss. 682; See 10 Ency. Law (2 Ed.), 1173; 10 Ency. Law (2 Ed.), 1080; 10 Cyc., 709; Dalrymple v. Whitingham, 26 Vermont, et tu Vermonte.

Now, please bear in mind that Mr. Schlicht, insisted that fencing was necessary; that no one denied that it was necessary; that when he sought to show in evidence that it was necessary, the court denied him this right.

The matter of bridges should be a considerable item, especially when everybody said that at least one bridge was necessary; and when Mr. Schlicht said three were needed. The refused instruction sought to place before the jury the question of fences and bridges. The jury had no chance to pass upon bridges and fences.

Conceding that the statutory instruction in its general terms concluded the idea of bridges and fences, is it not yet and nevertheless true that that very identical jury had seen Mr. Schlicht's able counsel attempting to show in evidence facts about the fences and then seen the judge refuse this? Did not they thus get the idea that fences must not be considered?

The plain fact is that if the jury could have figured on first, value of the land taken, second, cost of bridges, and third, cost of four miles of fences, the verdict of the jury would have been much higher. As to the second ground of assignment, we thus say that as a corollary to the foregoing, the jury's verdict was inadequate. As to the third ground of assignment, we say that the court below erred in allowing in evidence the opinions of witnesses as to how much Mr. Schlicht's land would be benefitted.

C. P. Long, for appellee.

The general charge which was given was all of the charges to which appellant was entitled and on this charge the jury was entitled and did consider all of the damages which had been allowed to be proved by the appellant, so that in truth and in fact, the only question before this court is whether the court erred in refusing to allow the appellant to prove what it would cost him to keep and maintain a fence up each side of the channel, and I now proceed to argue that question.

Appellant's counsel argue that the same is not a question of law, but one of fact, however, the supreme court does not seem to agree with this contention as will be found by an examination of the case of Yazoo & Miss. Valley R. R. Co. v. Jennings et al., 90 Miss. 93.

In deciding the above case the supreme court say that it is improper to consider as an element of damages either (a) That laborers on the farm would likely stop work and listen to passing trains; or (b) That the mules in use on the farm would likely run away as trains approached; or, (c) That deleterious grasses might be scattered over the land; or, (d) That live stock getting upon the track would likely be killed by the trains.

All of the above foundations or basis were declared to be too vague uncertain and speculative upon which to found any claim of damage; and I respectfully submit that there was more sense in either of the above claims and that either of the above things was more apt to happen than the things contended for by the appellant as a reason why it would be necessary to fence this canal. The court will bear in mind that the appellant set up or gave his reason why and upon which he claimed to be justified in making a claim for this fencing, and this reason given by him, of course binds him in this court, and that was that it would have to be done in order to keep his mules, cows, etc., from walking...