Sharp v. Drainage District No. 7

• Decision Date: 05 May 1924
• Docket Number: 356
• Citation: 261 S.W. 923,164 Ark. 306
• Parties: SHARP v. DRAINAGE DISTRICT NO. 7
• Court: Arkansas Supreme Court

261 S.W. 923

164 Ark. 306

SHARP v. DRAINAGE DISTRICT NO. 7

No. 356

Supreme Court of Arkansas

May 5, 1924

Appeal from Poinsett Circuit Court; G. E. Keck, Judge; reversed.

STATEMENT OF FACTS.

This is an appeal by A. L. Sharp, a landowner, from a judgment of the circuit court sustaining a demurrer to his complaint in a proceeding to recover compensation for lands taken or damages in constructing a drainage ditch. The complaint is as follows:

"Comes the plaintiff, and for his cause of action alleges that he is the owner of the following lands in Poinsett County Arkansas, all of which are located in the defendant Drainage District No. 7, to-wit: (Description omitted).

"That the defendant is a drainage district, organized and existing by virtue of an act of the General Assembly of Arkansas for the year 1917, being act No. 193; and approved by the Governor on March 9, 1917, the purpose of said act being to invest the commissioners thereof with power and authority to do such construction work necessary for the reclamation of the wet and overflowed lands in said district by a system of ditches, drains and levees.

"That the defendant commissioners are the duly qualified and acting commissioners of said district.

"Plaintiff further alleges that included in said district is the St Francis River, from the northern boundary of Poinsett County south to the Cross County line. That said river, from the northern boundary line of said county to a point about nine miles south thereof, traverses a large area of swamp and overflowed land, containing many thousand acres located in a low basin.

"Said river, in and through said basin, while having well-defined banks and a channel, during certain periods of high water overflows a large portion of the lands situated within said basin.

"This condition exists from the northern boundary line of Poinsett County to a point in said county and defendant district about two miles north of Marked Tree, at which point the waters of said river again enter a well-defined channel with sufficient banks to carry the water at all times without much overflow.

"Plaintiff's land herein described is located in said basin, and covered in many places with valuable timber, consisting of oak, gum hickory, cypress and other species of hardwood usually found growing in wet and overflowed lands. A large portion of said basin and of plaintiff's land is subject, more or less to periodical overflow, but not to an extent so as to make said lands unfit for cultivation, and that, in a large portion of said basin and of plaintiff's land, crops of cotton, corn, hay and other farm products have been annually grown and harvested.

"Plaintiff further alleges that the defendant district has filed and adopted plans for the construction of an immense levee, fifteen feet or more in height, along both sides of said basin and along and across the outlet thereof, thus converting said basin into an immense reservoir, with said levees as retaining walls, for the purpose of storing the water entering said basin and retarding its flow, and in this way enabling said water to enter a floodway to the south in such a way as to protect the lands to the south from overflow. By so confining said water defendant has totally destroyed the value of plaintiff's land and all timber thereon.

"Plaintiff further alleges that written notice was served on said defendant board of commissioners, in the time and manner as by law required, within thirty days after said plans for said improvement were filed with the county clerk of Poinsett County, but that defendant refused to bring suit in condemnation, as by law required, and to submit the ascertainment of damages caused to plaintiff's land to a jury, but, on the contrary, has built and completed said levee over and across plaintiff's land, using many acres of plaintiff's land in the construction of said levee and for right-of-way purposes, and throwing into said reservoir about 120 acres of said land, thereby destroying all of said land and timber thereon.

"Plaintiff further alleges the reasonable value of land and timber to be the sum of $ 50 per acre before the building of said levee; that 25 acres were taken for right-of-way purposes and used in the construction of said levee; that 120 acres are totally destroyed, being in said reservoir, as herein alleged, being a total damage to plaintiff in the sum of $ 7,250.

"Wherefore plaintiff prays judgment against said defendant district in the sum of $ 7,250, for costs, and all other proper relief."

The court sustained a demurrer to the complaint, and, the plaintiff electing to stand upon his demurrer, it was adjudged that the complaint be dismissed; and from a judgment in favor of the defendants the plaintiff has duly prosecuted an appeal to this court.

Judgment reversed, and cause remanded.

Robert Fuhr and J. M. Futrell, for appellant.

The appellee district has taken appellant's property within the meaning of § 22, article 2 of the Constitution. 10 R. C. L. 60, p. 68; Id. 58, p. 66; Id. 59, p. 67; Id. 61, pgs. 70-71; Id. 63, pgs. 72, 73; 13 Wall. 166, 20 L. ed. 557; 188 U.S. 444, 47 L. ed. 539. Our own court goes farther than these decisions and holds that private property shall not be damaged for public use. See 119 Ark. 166; 113 Ark. 239; 128 Ark. 250; 45 Ark. 429. See also 146 Ark. 14 on taking property. The damages claimed by appellant are within the express terms of the act creating the district. See § 9 thereof. Such a provision was not contained in the act in the cases reviewed in 149 Ark. 285, and 95 Ark. 345, on the subject of surface water, do not apply, nor has such doctrine ever been applied where the lands were within the improvement district as here. Appellant is entitled not only to damages for the land taken, but for damages done to other land. 78 Ark. 83; 51 Ark. 330.

N. F. Lamb and C. D. Frierson, for appellee.

Appellee had the right to build its levees as it did, and to leave lands unprotected by a levee in such case is not a taking within the meaning of the Constitution. 95 Ark. 345, 29 L. R. A. (N. S.) 396; 149 Ark. 285, 20 A. L. R. 296, and cases cited there. See also 230 U.S. 1, 57 L. ed. 1363; 230 U.S. 24, 57 L. ed. 1374; 241 U.S. 351, 60 L. ed. 1041; 204 F. 299; 249 U.S. 587; 254 U.S. 608; 9 So. (Miss.), 351; 85 Sou. (Miss.), 312; 207 F. 338. The Arkansas cases cited by appellant either do not concern flood water or refer to land taken in the construction of the improvement, hence are not applicable.

HART J. MCCULLOCH, C. J., dissenting. Mr. Justice SMITH concurs in dissent.

OPINION

HART, J., (after stating the facts).

Counsel for the defendants have attached to their brief what they claim is a map of the proposed drainage district, which shows the location of the levees referred to in the complaint.

Counsel for the plaintiff, in their reply brief, claim that it is the purpose of the district to build a dam across the St. Francis River, from the lower end of one of the proposed levees to the other, and to let out the water thus impounded by a lock or a gate, which may be closed at will. We cannot consider these matters.

The court sustained a demurrer to the complaint, and rendered judgment accordingly. The allegations of the bill, which are confessed by the demurrer, control in this case. Contrary to the common-law rule, under our Code every reasonable intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever. Ferrell v. Elkins, 159 Ark. 31, 251 S.W. 380.

A demurrer will not lie to a complaint if it states sufficiently but imperfectly a cause of action; but the remedy in such case is by motion to make the complaint more definite and certain. Williams v. Memphis, Dallas & Gulf Railroad Co., 133 Ark. 188, 202 S.W. 228.

Tested by the rule laid down above, construing pleadings, the question in this case is whether the commissioners of a drainage district, duly organized under the statute, may erect a levee and dam which obstruct the flow of the waters of the St. Francis River in Poinsett County, and thereby injure the lands of another, and the district incur no liability.

Our Constitution provides that the right of property is before and higher than any constitutional sanction, and that private property shall not be taken, appropriated, or damaged for public use, without just compensation therefor. Article 2, § 22, of the Constitution of 1874.

It is claimed, however, that the constitutional provision that private property shall not be damaged for public use except on due compensation, does not contemplate damages resulting without legal injury, as in the case at bar. The rule is invoked that a levee district may rightfully construct a levee across sloughs, swales and other low places, which help to absorb the flood waters of a river, without liability to a riparian owner, whose lands are left between the levee and the river, and which are damaged as a result of the levee's raising the height of the flood waters. McCoy v. Bd. Dir. of Plum Bayou Levee Dist., 95 Ark. 345, 129 S.W. 1097, and City Oil Works v. Helena Imp. Dist. No. 1, 149 Ark. 285 232 S.W. 28. The rule there announced depends upon the two legal maxims that one may use his own property as he will, and that he must not so use his own as to interfere with the legal rights of others. The sea was regarded as a common enemy to the adjacent landowners, and any owner of land exposed to its inroads might protect himself by erecting barriers against its encroachment, and what each landowner might do for himself, the commissioners of a levee...