Toler v. Bear Creek Drainage Dist.
| Decision Date | 16 November 1925 |
| Docket Number | 24948 |
| Citation | 106 So. 88,141 Miss. 851 |
| Court | Mississippi Supreme Court |
| Parties | TOLER et al. v. BEAR CREEK DRAINAGE DIST. [*] |
(In Banc.)
1 DRAINS. Equality of benefits to all lands not essential to formation of district.
Equality of benefits to all the lands therein is not essential to formation of drainage district, under Laws 1914, chapter 269 section 2 (Hemingway's Code, section 4438).
2 DRAINS. Authority to enact laws for establishing districts derived from police power.
Authority to enact laws for establishment of drainage districts is derived from the police power.
3 DRAINS. Purpose of establishment of districts promotion of public welfare.
Purpose for which drainage districts may be and are established is to promote public welfare.
4. DRAINS. No right of individuals as against district to protect land by levee within district.
Private drainage rights of owners of land within a drainage district become merged in and are supplanted by rights relative thereto conferred by the statute on the district, so that any prior rights of individuals to protect their lands by levee within the district yield to the rights of district relative thereto.
5. WATERS AND WATERCOURSES. Method of fending off water from land limited.
Right at common law of landowner to fend off surface water and flood water of stream from his land is subject to the condition that if there are two ways of doing it, equally efficacious, and neither requiring unreasonably greater expense than the other, one only of which will damage adjoining property, the other must be adopted; so that ditches protecting both would be required in place of a levee injuring one.
6 DRAINS. Ditches through watershed in district permitted by statute to give additional powers to districts.
Ditches across a drainage district, through a divide or watershed therein, being a necessary part of a larger scheme to protect the land on both sides ordinarily drained by a creek on either side from periodical overflows from one of the creeks, which waters each year for several months flow over the divide, held permitted by Laws 1924, chapter 257, section 1, to give additional powers to drainage districts, and not violative of section 6 providing that the act shall not be construed to permit diversion of water from one watershed or basin to another.
HON. C. L. LOMAX, Chancellor.
APPEAL from chancery court of Leflore county, HON. C. L. LOMAX, Chancellor.
Temporary organization of Bear Creek drainage district was by decree made permanent, over the protest of H. P. Toler and others, and they appeal. Affirmed and remanded.
Affirmed and remanded.
Moody & Williams and Percy & Percy, for appellant.
Under the statute, pursuant to which the district was organized, no power is granted to make the improvements designated as Plan A; but, to the contrary, such improvements are expressly prohibited by the statute. The plan contemplates the construction of the levee, the sluiceway and the three canals.
Aside from the statute, to which your attention shall later be directed, two general questions are presented. The first is whether the district, if the plans had so provided, would have the right to construct and maintain a levee along the line of the divide indicated by the three parallel lines, in order to protect that part of the district lying to the west of the divide from the overflow waters of the Yazoo river, assuming that the mouth of Wasp Lake would not be closed by the sluiceway. This question must be answered in the affirmative if the opinion of this court in Jones et al. v. George, 89 So. 231, is followed. The facts in the case cited, are, in substance, identical with the facts of the instant case. This question, be it noted, relates solely to a levee at the divide--not the levee at the mouth of Wasp Lake, as that levee presents a different question.
There cannot, of course, be two conflicting rights. If there is a right to obstruct the flow by the levee, then there cannot be a right to accelerate the flow by means of a canal. We mention this to make it clear that the rights of the landowners to the west of the three parallel lines have not only been disregarded but invaded by the plans as proposed to and adopted by the court.
The second question is whether by means of the levee and sluiceway the surface water flowing naturally into Bear creek can be collected and discharged in a body upon adjoining landowners? That this cannot be done clearly appears by the ruling of this court in Board of Drainage Commissioners v. Board of Drainage Commissioners, 127 Miss. 64, 95 So. 75.
The right to construct levee and sluiceway. One effect of the levee and sluiceway, when closed, will be to protect the district "from the accidental or extraordinary flood waters" of the Yazoo river which, when a stage of one hundred eight feet is reached, will spill over the divide and thence into the Sunflower river. If Bear creek is like Burr bayou, which is referred to in Jones v. George, 89 So. 231, and the principle announced in that case is followed, the levee can be constructed, for there would be no riparian rights of the owners of the lands, to the east of and adjoining the Yazoo river to have the overflow waters of that river flow as it was wont to flow, that would be invaded. If, on the contrary, the owners of the land to the east of and adjoining the Yazoo river have the right to have the overflow waters flow as they were wont to flow, then their rights would be invaded and the construction of the levee would be illegal. We may suggest, however, that Bear creek is different from Burr bayou in that the spillway across the divide is not directly out of Bear creek, but out of a tributary thereof, Sky Lake, across the divide, through Little Jackson bayou and Oak bayou, tributaries of Sky Lake.
The above is one effect, but not the sole one, of constructing the levee and sluiceway. The other effect, and the vital one so far as this particular case is concerned, is this: During the period the sluice is closed Bear creek will reach, of necessity, a flood stage as the outlet thereof will be closed. This would be the inevitable result, regardless of the rainfall, as Bear creek is a running stream. Therefore, the question arises how shall such surplus or flood waters be legally eared for by means of the levee and sluiceway proposed to be constructed? An answer to this question must be determined by reference to the powers vested in a drainage district by the statute pursuant to which it is created. A drainage district, though an instrumentality of the state and a public or quasi-public corporation, "derives its powers from the statute and not the court creating it." 19 C. J. 627; Northern Drainage District v. Bolivar County, 71 So. 380.
The district here was created pursuant to chapter 195, Laws of 1912, and the amendments thereto. The last expression of the legislative will, in the form of an amendment to this chapter, is chapter 257, Laws of 1924. By reading section I of that chapter you may see that the surplus and overflow waters of Bear creek, during the period the sluiceway is closed, are, by means of the levee and sluiceway, diverted in a manner not authorized, but prohibited by the express terms of that section. Therefore, it is submitted, the construction of the levee and sluiceway--even if it be held that the riparian rights of the owner of lands to the east of and adjoining the Yazoo river could be invaded--is expressly prohibited and not authorized by the statute by virtue of which the district is created. It cannot be, and will not be, denied that the levee and sluiceway is the vital factor of Plan A, on which Plan B is wholly dependent.
The right to construct ditches and canals. The three ditches or canals proposed to be constructed are in palpable violation of the section just quoted. Water is taken from a point in Sky Lake, a tributary of Bear creek, and not returned to either Sky Lake, Bear creek or the Yazoo river. This has reference to ditches Number Four and Five. Water, by ditch Number Two, is taken from a point in Bear creek, a tributary of the Yazoo river, and not returned to either. Therefore, if it be assumed that the levee and sluiceway could be lawfully constructed, yet this vital element of the plan is prohibited by the statute, so the whole scheme must fail.
Prescriptive right. There is yet, by the express terms of the statute, still another vital objection to the construction of the canals. It may be assumed that, from the time whereof the memory of man runneth not to the contrary, the overflow waters of the Yazoo river have backed up or over the divide and flowed through Little Jackson bayou and Oak bayou, and thence through other watercourses into the Sunflower river; that by reason thereof, a prescriptive right to the continuance of such flow has been acquired. Therefore, having such a right, an enlargement of the watercourses, by means of the canals, is only doing that which has been acquired by prescription. But section 6 expressly says, "That nothing herein contained shall be construed to permit the enlargement of any prescriptive rights, now or hereafter existing or acquired."
Separate basins. All of the lands, as the chief engineer of the district testified, and as the chancellor found as a fact lying to the east of the three parallel lines, are in the Yazoo basin or watershed. That to the west of those lines is in the Sunflower basin or watershed. By means of the three canals the water is diverted from the watershed of the former to that of the latter. The construction of the canals whereby this result follows is likewise met by an express prohibition of section 6: "That nothing herein contained...
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