Silver Creek Navigation and Improvement Company v. Mangum

• Decision Date: 25 April 1887
• Citation: 64 Miss. 682,2 So. 11
• Court: Mississippi Supreme Court
• Parties: SILVER CREEK NAVIGATION AND IMPROVEMENT COMPANY v. MARY E. MANGUM

2 So. 11

64 Miss. 682

SILVER CREEK NAVIGATION AND IMPROVEMENT COMPANY v. MARY E. MANGUM

Supreme Court of Mississippi

April 25, 1887

April 1887

APPEAL from the Circuit Court of Yazoo County HON. T. J. WHARTON Judge.

In 1884 the legislature granted to the "Silver Creek Navigation and Improvement Company" a charter by which the company was authorized to dam up a certain creek, known as Silver Creek, at its mouth, and thus convert it into a stream navigable for small craft. The company was fully authorized to widen, deepen, cut, or dig out the stream, remove obstructions on the banks, etc. Accordingly, the stream was dammed up.

Mrs Mary E. Mangum is the owner of a plantation on the west bank of this stream. The public road which leads to the market town and county site, Yazoo City, is on the east bank and follows the stream down to its mouth. Before the dam was built by the company the stream was fordable except on rare occasions, and it was by crossing the stream that Mrs. Mangum had an outlet from her plantation to market, etc. The stream after the dam was built at its mouth, widened considerably so as to cover a part of the plantation of Mrs. Mangum, which she used as a pasture, it being covered with Bermuda grass. The stream also became so deepened that it was impossible to ford it, and Mrs. Mangum was put to much inconvenience in reaching the public road. After some time the navigation company erected a temporary bridge across for foot passengers, about seven feet wide, but not sufficient for a carriage way.

In 1886 Mrs. Mangum brought this action against the Silver Creek Navigation and Improvement Company to recover damages for a willful obstruction of her way of ingress and egress to and from her plantation, the damage to her property from the inconvenience arising therefrom, and for the damage done by the overflowing of the waters on her land.

On the trial the plaintiff offered evidence tending to show that the captain of one of the boats of defendant navigating this stream had refused to take cotton for shipment for Mrs Mangum, and after going further down on the same trip had taken cotton for some one else, and that when he carried cotton for her husband he charged him fifty cents per bale, and only charged others twenty-five cents per bale. The defendant objected, the objection was overruled, and the evidence was admitted.

The defendant, on cross-examination of a witness for the plaintiff, asked him what it would cost to build a flatboat or a bridge for crossing the stream. The plaintiff objected to the question, and the objection was sustained by the court.

The court below refused certain instructions asked by the defendant, the substance of which is stated in the opinion of this court.

The jury found for the plaintiff, and assessed her damages at one thousand seven hundred and fifty-six dollars. From the judgment on such verdict the defendant appealed.

Reversed and remanded.

D. R. Barnett and J. C. Prewett, for the appellant.

1. There is nothing in the declaration in regard to the failure to carry cotton for Mangum, nor is there any reference in the declaration to the defendant company making discrimination as to charges for carrying cotton. If either of these matters had been embraced in the declaration they would have been improper, as making a misjoinder of causes, and not having been embraced in the declaration they cannot be used to aggravate plaintiff's damages. All these occurrences, according to the witnesses who detailed them, were long subsequent to the building of the dam and the flooding of Mrs. Mangum's land.

2. In an action for a nuisance, and that was manifestly the theory of the court below, though the theory was violated in practice, the general rule is that the plaintiff's measure of damages is the loss actually sustained. Thayer v. Brooke, 17 Ohio 489; Luther v. Winnisimmet, 9 Cush. 171. Suits for damages should not be matters of speculation, but reasonable claims for indemnification. One who, therefore, in the exercise of what he believes to be his rights, commits a nuisance against the property of another, is bound only for the actual damages sustained, including the trouble and expense of establishing the right to have the nuisance abated. Kay v. N. O. Canal Co., 7 La. An. 259; McNight v. Ratcliff, 44 Pa. St. 156; Shaw v. Cummiskey, 7 Pick. 76.

Ordinarily, as respects injuries to real estate, the rule of damages is generally stated to be the difference between the value of plaintiff's premises before the injury and the value after the injury. But this rule has no application to such nuisances as may be removed directly after the verdict, or for the continuance of which a second or third action may be maintained, or which may be abated by the order of the court. In such cases a proper criterion by which to estimate the damages is the loss in the actual value of the property sustained by the continuance of the nuisance. Pinney v. Berry, 61 Miss. 359; Park v. R. R. Co., 43 Iowa 636; Chipman v. Palmer, 9 Hand, N.Y. 517.

On this general subject see Town of Troy v. Cheshire R. R. Co., 23 N.H. 83; Plumer v. Harper, 3 Ib.; Anonymous, 4 Dall. (U.S.) 147; 17 Ohio 489; 3 Denio 283.

The nuisance, if any, in this case, was not in its nature...