State Highway Commission v. McClendon

• Decision Date: 11 June 1951
• Docket Number: No. 37982,37982
• Citation: 212 Miss. 18,53 So.2d 35
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY COMMISSION v. McCLENDON et al.

Page 35

53 So.2d 35

212 Miss. 18

STATE HIGHWAY COMMISSION v. McCLENDON et al.

No. 37982.

Supreme Court of Mississippi, Division A.

June 11, 1951.

J. P. Coleman, Atty. Gen., John Kuykendall, Jr., Matthew Harper, Jr., Asst. Attys. Gen., E. R. Holmes, Jr., Jackson, for appellant.

Higgins & Quinn, Jackson, for appellees.

KYLE, Justice.

This case was before this Court on appeal from the chancery court of Hinds County in 1949, and was reversed by this Court and remanded for the purpose of having the lower court determine the remaining issues involved after a settlement by the complainants with the defendants of the claim for injunctive relief. The opinion on the former appeal is reported in the case of McClendon v. Mississippi State Highway Commission, 205 Miss. 71, 38 So.2d 325.

The complainants, H. T. McClendon and others, filed their bill of complaint against the defendant, the Mississippi State Highway Commission, on April 10, 1946, asking for a mandatory injunction to abate a so-called water nuisance alleged to have been created by the defendant in the construction of U. S. Highway No. 49 running southwardly from the City of Jackson toward the City of Hattiesburg, and to recover damages alleged to have been sustained by the complainants as a result of the diversion of surface waters from their natural flow into an artificial ditch constructed by the defendant and running through the lands owned by some of the complainants and in close proximity to the lands of the other complainants in Sections 35 and 36, Township 5 North, Range 1 East, in Rankin County, lying immediately adjacent to or in close proximity to U. S. Highway No. 49.

The complainants in their bill of complaint alleged that the highway was completed sometime during the year 1932; that for the purpose of controlling the surface waters flowing westwardly across the defendant's right-of-way it became necessary in 1935 for the defendant to enlarge and straighten the channel of Squirrel Branch by the construction of a small artificial ditch across the lands of some of the complainants and in close proximity to the lands of the other complainants; that the defendant procured the necessary easements from the landowners and immediately thereafter constructed said ditch, which wsa approximately one and one-half miles in length.

The complainants further alleged in their bill that in 1940 the ditch was enlarged for the purpose of controlling more effectively the surface waters and keeping the surface waters from flooding the highway and the lands lying immediately East of the highway; that in the course of time after the enlargement of said ditch the constant flow of surface waters into the ditch caused an increase in the width and depth of the ditch at its upper reaches and a filling in of the ditch in its lower section, and that as a result thereof the lands of the complainants had become subject to complete inundation after ordinary rainfalls, and that said lands had been rendered unfit for farming purposes; and that the complainants had been unable to cultivate crops on said lands since the year 1943.

The complainants further alleged that the action of the defendant in the construction of the above mentioned artificial ditch and in failing to keep the same properly dredged and cleared so as to facilitate the flow of water through said ditch and into its natural drain, had resulted in the inundation of complainants' land, and constituted a taking or damaging of complainants' private property for public use without due compensation therefor.

The complainants in their bill asked that the court require the defendant to abate the water nuisance complained of by dredging, clearing and deepening the artificial channel at its lower reaches and by doing all other things necessary to facilitate the flow of the surface waters into the natural drains, or that the defendant be required to construct such other ditches as might be needed to prevent the flow of the surface waters over and on the lands of the complainants, and that the defendant be permanently enjoined to keep said ditches open and free from obstructions; and the complainants asked that they be awarded damages for the injuries complained of.

The complainants attached to their bill of complaint itemized statements of the crop damages and other damages alleged to have been sustained by each of them during the years 1943, 1944 and 1945. These damages included damages to their truck gardens, gravel driveways, cost of replanting corn and field peas, damage to pasture land caused by the overflow of water, and loss of chickens and calves caused by drowning, during each of the above mentioned years.

The defendant filed an answer and a demurrer to the bill of complaint, and also special pleas in bar of the relief prayed for. In its answer the defendant interposed as a special plea in bar of the suit a release obtained from the landowners in 1940 which will be hereinafter referred to. The defendant denied that the damages alleged to have been sustained by the complainants were due in any manner to the act of the defendant, and the defendant denied that there was any duty resting upon the State Highway Commission to dredge or clean out the artificial ditch referred to in the bill of complaint, and the defendant specifically denied that the damages alleged to have been sustained by the complainant were proximately caused by the diversion of surface waters into the drainage ditch. The defendant also interposed a plea of the ten-year statute of limitations.

The defendant filed with its answer copies of drainage easements in which the land owners through whose land the artificial ditch was constructed conveyed to the State Highway Commission easements authorizing the construction of the ditch.

The defendant also filed as an exhibit to its answer a copy of a formal release dated January 9, 1940, signed by H. L. Lowe and others, which recited that in consideration of the sum of $1100 the grantors 'release and relinquish any and all claims, demands or rights of action accrued, accruing or to accrue against the State Highway Commission of Mississippi for or on account of damages which have arisen or which may arise out of that certain channel change made by the State Highway Commission on the East side of Highway 49 in Rankin County, Mississippi, and running through, over, on, across or near the land belonging to the undersigned', and particularly damages alleged to have been sustained by the grantors in certain suits filed by them in the circuit court of Rankin County a short time prior to the date of the execution of said release; and copies of the declarations filed in the above mentioned suits in the circuit court of Rankin County, were attached to the defendant's answer.

The above mentioned release dated January 9, 1940, was signed by E. E. Turner and wife, H. L. Lowe and wife, and J. W. Quinn and wife, who are complainants in this suit, and also by T. H. Moody and wife, who, on June 24, 1942, conveyed a part of the tract of land which they owned to J. D. McClendon and wife, complainants herein, and who, on September 4, 1943, conveyed a part of the tract of land which they owned to H. T. McClendon and wife, complainants herein.

The artificial ditch referred to in the bill of complaint ran through and across the lands owned by the above named E. E. Turner and wife, H. L. Lowe and wife, J. W. Quinn and wife, and by T. H. Moody and wife, at the time of the execution of the above mentioned release. The ditch did not run through or across any of the lands owned by the above named R. L. Quinn and wife, Crimes Austin and wife, M. R. Butler and wife, Otho Griffin and wife, and Hayward Walker and wife.

After the filing of the bill of complaint the question as to injunctive relief was settled by agreement of the parties which was filed with the papers in this cause on May 28, 1946. Under the terms of the agreement the State Highway Commission agreed to clean out the ditch and extend the same a short distance on the west side of the highway. But it was expressly stipulated in the agreement that the Highway Commission, by agreeing to clean out the ditch in question and to extend the ditch on the west side of the highway, did not admit any liability for damages to any of the complainants.

The cause came on for hearing before the chancellor on June 24, 1947, upon an agreed stipulation that the court should hear only two legal propositions at that time, first, the question of the validity of the release executed by some of the complainants on January 9, 1940, which was pleaded in bar of the suit, and second, the question of the rights of the other complainants who had purchased after the original construction of the ditch and the subsequent cleaning out of the ditch in 1940. At the conclusion of the hearing the chancellor held that the release executed by the complainants hereinabove named on January 9, 1940, constituted a full and final settlement of all claims for damages arising out of the construction of the above mentioned artificial ditch, as to the landowners who executed the release and the parties who had later purchased lands from them. The chancellor also held that after the question of injunctive relief had been eliminated by agreement of the parties, the remaining issues presented involved claims for damages for breach of contract for failure to keep the ditch open or to make other improvements, and that such claims for damages should be prosecuted in a court of law, and that the chancery court had no jurisdiction to try such suits for damages. The...