Scranton-Pascagoula Realty Co. v. City of Pascagoula

• Decision Date: 05 May 1930
• Docket Number: 28653
• Citation: 128 So. 73,157 Miss. 498
• Court: Mississippi Supreme Court
• Parties: SCRANTON-PASCAGOULA REALTY CO. v. CITY OF PASCAGOULA et al

128 So. 73

157 Miss. 498

SCRANTON-PASCAGOULA REALTY CO. v. CITY OF PASCAGOULA et al

No. 28653

Supreme Court of Mississippi

May 5, 1930

Division B

Suggestion of Error Overruled June 21, 1930.

APPEAL from chancery court of Jackson county HON. D. M. RUSSELL Chancellor.

Suit by the Scranton-Pascagoula Realty Company against the City of Pascagoula and others. Decree dissolving an injunction theretofore granted, and complainant appeals. Reversed, and injunction reinstated, and cause remanded.

Decree reversed, and cause remanded.

E. J Ford and J. I. Ford, of Pascagoula, for appellant.

A city cannot construct a tunnel and thereby divert one Bayou into another without a vote of the people where the cost exceeds one-fourth of the tax levy for general revenue purposes.

Section 3327, Code 1906.

A natural channel with defined bed and banks of varying width and depth through which water is conveyed and is discharged is a watercourse, and the fact that it is most of the time dry and not running, is not enough to deprive it of its character as a watercourse.

Belzoni Drainage Commission v. Winn, 98 Miss. 359.

The construction of the tunnel under the street is an unusual and uncontemplated use of the street, and therefore an additional servitude and burden on the fee, title to which remains in appellant.

Moore v. Gar Creek Drainage Dist., 266 Ill. 399, 107 N.E. 642; Rowzee v. Pierce, 75 Miss. 846; Jones v. Board of Aldermen of Jackson, 104 Miss. 449; Board of Rapid Transit Com'rs, 197 N.Y. 81, 90 N.E. 456, 36 L.R.A. (N.S.) 647; Rasch v. Nassau Elec. R. R. Co., 198 N.Y. 385, 91 N.E. 785, 36 L. R. A (N.S.) 645; McCommon & Lang Lbr. Co. v. R. R. Co., 133 S.W. 247, 36 L.R.A. (N.S.) 662; 13 R. C. L. 93; City of N.Y. v. Henman, 215 N.Y. 109, 109 N.E. 104, L.R.A. 1916A 1290; R. R. Co. v. State, 94 Miss. 759; Williams v. Light & Ry. Co., 110 Miss. 174; Winchester v. Capron, 63 N.H. 605, 56 Am. Rep. 554; Hamby v. Dawson Springs, 12 L.R.A. (N.S.) 1164; Motoramp Garage Co. v. City of Tacoma, 42 A.L.R. 886, 241 P. 16; Chicago & N.W. R. R. Co. v. Jefferson, 14 Ill.App. 615; Gilley v. Cincinnatti, 7 Ohio Dec. Reprint 527, 61 L.R.A. (N.S.) 679.

Ford, White, Graham & Gautier, all of Pascagoula, for appellant.

That a watercourse is partly artificial, partly made by action of flowing water, and partly by the hand of man, does not deprive the stream of the attributes of a watercourse, nor prevent application thereto of rules applicable to other watercourses.

Hornor v. City of Baxter Springs, 226 P. 779.

There is no right on the part of a municipal corporation, or a drainage or road district, to alter the course of drainage so as to throw water upon property where it does not naturally flow. Therefore, the municipality cannot turn water which has been flowing in a particular direction from its course, and cast it upon property where it would not naturally flow, by improvements made for its own benefit.

O'Brien v. St. Paul, 25 Minn. 331, 33 Am. Rep. 470; Slack v. Lawrence, 19 A. 663; Farnham on Waters, 960.

W. M. Colmer, of Pascagoula, for appellees.

When a city is not attempting to change, alter or establish the channel of the stream, section 3327, Code 1906, section 6763, Hemingway's 1927 Code, has no application.

It is essential to constitute a watercourse that it should have a distinct and substantial channel, with well defined banks, presenting unmistakable evidence to the eye of the frequent action of running water; and that the channel should follow the course of natural depressions in the soil or should have been worn by the action of the running water, and not made by the hand of man.

Murdock v. Stickney, 8 Cush. ; 27 R. C. L. 1062-1064; 36 Cyc. 1336; 40 Cyc. 555, 556.

A municipality may use a street for any purpose not inconsistent with its use as a highway. For instance, it may lawfully use the streets for the construction of sewers or for drainage or to lay gas or water pipes or to erect poles and strings of wires.

28 Cyc. 853; 29 C. J. 545; 44 C. J. 937; 13 R. C. L. 167169 at page 167; City of Georgetown v. Commonwealth of Kentucky, 61 L.R.A. 673; Kress & Company v. City of Miami, 7 A.L.R. 641; Gulfcoast Ice Manufacturing Co. v. Bowers, 80 Miss. 570, 32 So. 113; Gulfport & Miss. Traction Co. v. Manuel, 123 Miss. 266, 85 So. 308; Town of Hazlehurst v. Mayes, 36 So. 35, 84 Miss. 12; Laurel v. Hearn, 108 So. 491, 143 Miss. 201; Williams v. Meridian Light & Railway Co., 69 So. 596, 110 Miss. 174; Theobold v. Louisville, N. O. & T. Railroad Co., 6 So. 230, 66 Miss. 279; Cheney v. Barker, 84 N.E. 492, 16 L.R.A. (N.S.) 436; McGinnis v. Marlborough & Hudson Gas Co., 108 N.E. 364, 221 Mass. 575; Whitney v. City of Toledo, 20 Ohio Cir. Ct. R. 74.

H. B. Everett, of Pascagoula, and Mize, Mize & Thompson, of Gulfport, for appellees.

The facts of the present case do not come under the provisions of section 3327, Code of 1906, section 6763, Hemingway's 1927 Code, as the city is not establishing, altering or changing the channel of a stream or watercourse, but is simply giving an additional outlet to water that forms a pond and floods the streets of the city and is calculated not only to ruin the streets but becomes injurious to the health of the people and damages the school property of the city.

The accommodation of drains and sewers is one of the purposes of a city street, so that the city may locate sewers there without placing an additional servitude on the fee on the rights of the abutting owners.

Georgetown v. Commonwealth, 61 L.R.A. 673; 44 C. J. 937-938, sec. 3702; 18 C. J. 129-130; McQuillin on Municipal Corporations (2 Ed.), 1545, 1552, 1553; 3 Dillon on Corporations (5 Ed.), sec. 1148; Mississippi Traction Co. v. Manuel, 123 Miss. 266; Town of Hazlehurst v. Mayes, 84 Miss. 12.

Argued orally by E. J. Ford and Rossie Ford, for appellant, and by S. C. Mize, for appellee.

OPINION

Griffith, J.

Communy avenue in the city of Pascagoula is an undeveloped street fifty feet wide and several thousand feet in length. Its western terminus is at Bayou Pichot, and running thence eastwardly, it crosses Bayou Yazoo at a distance of about one thousand feet from Bayou Pichot. Between these bayous the land rises into a ridge, so that about midway the elevation is some twelve feet above mean gulf level.

Bayou Pichot, at the point where the said street approaches, is of sufficient size and depth to furnish a harbor for large vessels, and it is only about one thousand feet from this point to where the said bayou flows into the Pascagoula river. Bayou Yazoo originally, and in its natural condition, emptied into Lake Yazoo, which in turn had an outlet into the Pascagoula river near the wider waters of the gulf and at a point about one-half mile below the mouth of Bayou Pichot. From Lake Yazoo, the bayou of that name extended in a direction northwardly, but bearing to the northeast, so that it reached into the central portion of the city and drained a large part of the municipal territory.

In 1918 the International Ship Building Company established on the Pascagoula river a large ship building plant which extended from the mouth of said Bayou Pichot down the river to said Lake Yazoo, and, to further accommodate itself in the matter of the immense ground space desired, the ship building company filled up some two thousand feet in length of said Yazoo bayou, from the lake northward, so that the said fill came up almost to said Communy avenue. This work was done without the consent of the city authorities, but at the same time without any active opposition being expressed either by the city or by appellant. In order to give an outlet to said Yazoo bayou, which, as already indicated, was a natural watercourse, the ship building company constructed a culvert, about three feet wide and four feet deep, from said Yazoo bayou across to Bayou Pichot, in a general direction from east to west, and at a location from fifty to one hundred feet south of said Communy avenue.

After the close of the World War, there was no further necessity for said ship building plant, and it soon thereafter ceased operations and abandoned its grounds. The said culvert placed by said company between said bayous, which has been there now more than tell years, has fallen into serious disrepair, so that, while it still continues in some measure to carry said waters, it no longer conveys, if it ever did, in an adequate manner all the waters of said Yazoo bayou. The result is that, after rainfalls, and especially when the rainfall has been heavy, from the point where the fill made therein by the ship-building plant begins on back to and above Communy avenue, the said Yazoo bayou becomes overflowed with the waters that come from said rainfalls, and there is formed a body of backwater which extends up into the populous part of the city, even to the location of the city schools and one of the churches. The condition has become such that it is imperative that the city take steps to relieve the intolerable situation.

To this end the city has made a contract with appellee contractors to construct a drain or storm sewer or new watercourse in the form of a large concrete culvert seven feet wide and four feet high from said Yazoo bayou westwardly to a point of access to the waters of said Bayou Pichot, the said culvert to extend for its entire length along and under the said Communy avenue. Appellant is the owner of the lands abutting on said avenue on each side of the proposed culvert, and is the original dedicator of the said avenue; and as such abutting owner and dedicator it has enjoined the city from proceeding with said work.

The grounds upon which appellant has proceeded in its bill for injunction, in so far as the grounds thereof are now presented, are as...