Silver Creek Navigation & Improvement Co. v. Yazoo & M.V.R. Co.

• Decision Date: 15 April 1907
• Docket Number: 12,651
• Citation: 90 Miss. 345,43 So. 478
• Parties: SILVER CREEK NAVIGATION & IMPROVEMENT COMPANY v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
• Court: Mississippi Supreme Court

43 So. 478

90 Miss. 345

SILVER CREEK NAVIGATION & IMPROVEMENT COMPANY v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY

No. 12,651

Supreme Court of Mississippi

April 15, 1907

FROM the chancery court of Yazoo county, HON. G. GARLAND LYELL Chancellor.

The appellant, Silver Creek Navigation & Improvement Company, a corporation, was complainant in the court below; the Yazoo &amp Mississippi Valley Railroad Company, appellee, was defendant there. From a decree sustaining the defendant's demurrer to the bill of complaint and dismissing the bill the complainant appealed to the supreme court.

The complainant's bill showed that it was incorporated in 1884, and by the legislature empowered (Laws of 1884, p. 864 et seq.), to deepen and widen the channel of Silver creek in Yazoo county and to construct locks and dams so as to make the stream navigable; that it was given the sole and exclusive right to navigate the parts of the stream improved for fifty years; that, after operating for many years, one end of a dike, constructed to increase the volume of water gave way; that when the means to repair the dike and put the stream again in navigable condition were at hand, complainant was deterred from so doing by the fact that the defendant railroad company had built a railroad across the creek and constructed a bridge in such manner that it was impossible for the complainant to navigate any kind of water craft in the stream; and that if the defendant company should be permitted to maintain its road as its bridges are constructed in several places across the stream, the franchise and water right given to complainant by the legislature would be virtually annulled and its property rights invaded in violation of the constitution of the state. The bill further averred that the legislature, in empowering complainant to deepen and widen the stream had declared the creek a navigable stream; and that it would be easy for the defendant railroad company to place gateways and sluices and drawbridges so as to subserve the rights of the complainant without interfering with the railroad company's operation of its road. The Opinion further states the allegations of the bill.

The railroad company demurred because the bill failed to show that Silver creek was a navigable stream at the time the suit was begun; because it failed to show that the complainant had complied with its charter requirements; and because the bill was premature in that the dike had not been restored, and whether or not the bridges of defendant would affect the navigation of the stream could not be positively known until the dike was rebuilt.

It was contended by appellant that "the decree rendered by the chancery court dismissing the bill is violative of art. 1, § 10, of the federal constitution, providing that "no state shall make or pass any law impairing the obligation of contracts," and also of the fourteenth amendment to the federal constitution, providing that "no state shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States . . . or deny to any person within its jurisdiction the equal protection of the law."

Reversed and remanded.

Hudson & Fox, for appellant.

The first ground in the demurrer is simply an averment that is not supported by the frank declaration of the bill. The bill alleges that the water is not as navigable now as it was when the levee was in good repair and that it is not in condition to float as large crafts as it did prior to the crevasse in the dike, that it is navigable for small crafts, but is not as much so as before. The whole frame-work of the bill and all of its statements convey the unmistakable belief that the stream of water is navigable now for small boats but not as much so as the appellant would like to use in order that more profit might be derived from its business. The legislature of Mississippi by the act aforesaid in granting its rights to this appellant declared this stream of water to be a navigable one and in the absence of any other fact together with the averments in the bill it is presumed to be a navigable stream and will be considered as such.

The second ground alleged in the demurrer is nothing more nor less than a defense setting up a failure of appellant to perform its part of its obligation to the state in not complying with the charter and that it had not yet become a corporate entity. This is not a valid defense. Harris v. Railroad Company, 51 Miss. 602; Grand Gulf Bank v. Archer, 8 Smed. & M., 151; Bohannon v. Biens, 31 Miss. 355.

The third ground of the demurrer is untenable because the bill alleges that the railroad crosses appellee's rights three different times and that the piling on which it crosses is so contrived that it is impossible to navigate this stream of water.

The exclusive right in this case is a property right, fixed and vested. "The appropriation of water rights is a property right therein and cannot be deprived of this right without his consent, even for a public use without compensation." 30 Ency. Law, 398.

While appellant did not expropriate its right with dollars and cents, still the source of its charter is derived from the sovereign from which all municipal rights emanate, as much so in this case as land grants or any other contract made by the government upon which valuable rights become fixed and are protected by fundamental laws.

In the case of Copper King Company Limited v. Wabash Mining Co., 114 F. 991, here we find that the property of the Copper King Mine was situated on the natural water course known as "Dog Creek" and for more than five years it had diverted and appropriated for business and domestic purposes, all the water of said creek and had acquired an exclusive right to the use of said water. The Wabash Mining Co. subsequently sank a vertical shaft near the channel of this creek, which diverted the water from the creek and the Copper King Company obtained an injunction restraining it from further diverting this water, and the court in substance holds, "That where a mining company has acquired the exclusive right of the use of water of a certain creek in working its mines, another company has not the right in developing its mines by means of a shaft near the creek to cut off and divert the water flowing into it." Where a mine owner, at the time of commencing a shaft, cut off the water flowing into the creek which another mine owner had acquired the exclusive right to use and was cautioned by the latter, against cutting off such water, he was bound with notice of the consequence of his act. In an action to restrain defendant from diverting the water from the creek, which plaintiff had acquired exclusive right to use, the rights of the parties were in dispute and temporary injunction should have been granted." See Green & Garren River Co. v. Chesapeake R. R. Co., 2 L. R. A., 540. This case is particularly in point for the reason that the appellant contends that it had the exclusive right to the use of this river and that the railroad company had no right to construct a...