Wood v. Drainage District No. 2, Conway County

• Citation: 161 S.W. 1057,110 Ark. 416
• Parties: WOOD v. DRAINAGE DISTRICT NO. 2, CONWAY COUNTY
• Decision Date: 08 December 1913
• Court: Arkansas Supreme Court

161 S.W. 1057

110 Ark. 416

WOOD v. DRAINAGE DISTRICT NO. 2, CONWAY COUNTY

Supreme Court of Arkansas

December 8, 1913

Appeal from Conway Circuit Court; Hugh Basham, Judge; affirmed.

Judgment affirmed.

W. P Strait, for appellants.

This case is different from 94 Ark. 380, where it was held that improvement districts were exempt from liability for personal injuries. Here we have a case of invasion; taking and damaging private property for public use without compensation. The right of property is before and higher than any constitutional sanction * * * and can not be appropriated or damaged without just compensation. Constitution, art. 2 § 22; 11 Am. Rep. 352; 102 Am. St. 881; 65 Am. Dec. 680; 93 Id. 766; 81 Pa. 355; 61 L. R. A. 837; 99 U.S 635; 75 Mo. 213; 94 Am. Dec. 97, and notes; 10 A. & E. Enc. Law 1111; 127 Ill. 438; 153 Mass. 123; 135 Mo. 558.

Wm. L. Moose, for appellee.

No damages for personal injuries are recoverable against an improvement district. They are quasi-public corporations, and have no property subject to execution. 95 Ark. 345; 94 Id. 380.

OPINION

HART, J.

W. L. Wood and Frank Pryor instituted this action in the circuit court against Drainage District No. 2, of Conway County, Arkansas, T. C. Hervey, J. S. Moose and T. J. Kissire, commissioners of said district, Napanee Drainage Company and Frank Reed. The complaint alleges that W. L. Wood is the owner of cultivated lands situated within said district, and that during the year 1912, Frank Pryor, as his tenant, undertook to raise a crop of corn and cotton on said land. The complaint further alleges:

"That on the day of , 1910, the said commissioners acting for and representing the said Drainage District No. 2, in their official capacity, contracted with the defendant, Napanee Drainage Company, a partnership composed of Harry Green, Willis Reed, Frank Reed and Arthur Rosenberg, for a valuable consideration to dig, excavate and construct a large drainage canal across and in said drainage district, which said drainage canal passed across, over, through, contiguous and near the above described land, which said contract so entered and made provided that said canal should be completed on or by the 1st day of March, 1912; and that said defendant, Frank Reed, managing the business of the partnership of which he was a member, as above alleged, had charge of the construction thereof, and has been in the actual superintendency, control, management and direction thereof; that the said defendant partnership, Napanee Drainage Company, failed to comply with its said contract and to complete the said canal within the time provided therein, thereby negligently and unnecessarily delaying the draining of said land and holding large bodies of water therein in said district, which is still held to the damage and detriment of the above described land of the plaintiffs.

"That during a long period of time extending from March 1, 1912, until July 10, 1912, along said canal excavation, across and contiguous to the land of this plaintiff, said defendants constructed, and the said defendant, Frank Reed, operating under defendant's contract and by the authority of the said Drainage District No. 2, through its directors as aforesaid, has negligently maintained in said artificial canal large bodies of water collected and gathered therein, and has negligently maintained dams and embankments across the same, thereby establishing artificial ponds or pools into which was pumped from the canal proper large quantities of water to a height equal to and above the surface of the surrounding country and this plaintiff's land, and negligently maintained said bodies of water for long periods of time between the 1st of March and the 10th of July, 1912, on such high level as to cause the same to seep through and overflow and saturate the said land of the plaintiff above described with water to such an extent as to totally destroy its use and usable value for agricultural purposes, and to make it uncultivatable for the year 1912, and to totally destroy the crop of corn and cotton and the products thereof planted, to be planted and to be grown upon said land for the year 1912, and to the plaintiff's damage in the sum of $ 500."

The court sustained a demurrer to the complaint, and the plaintiffs, electing to stand on the complaint, judgment was entered against them. They have duly prosecuted an appeal to this court.

Section 22, article 2, of our Constitution, provides that private property shall not be taken, appropriated or damaged for public use without just compensation therefor. The drainage district in question was organized under an act to provide for the creation of drainage districts in this State, approved May 27, 1909. Acts of 1909, page 829. The act in question recognizes the section of the Constitution quoted above. Under the act, after the petition required by the statute has been filed, and the county court has determined upon the establishment of the drainage district, and the plan for its construction has been adopted, commissioners are appointed who shall have control of the improvement in their district. Section 7 provides that the commissioners shall assess all damages that will accrue to any land owner by reason of the proposed improvement, including all injury to land taken and damaged. Section 8 provides that any property owner who may be dissatisfied with the assessment of damages in his favor by the commissioners may give the commissioners, in thirty days after they have filed their assessment, notice that he demands an assessment of his damages by a jury, and it shall then be the duty of the commissioners to institute a suit in the circuit court to condemn the lands that are thus taken or damaged in making said improvement.

In the case of Newgass v. Ry. Co., 54 Ark. 140, 15 S.W. 188, which was a condemnation suit by a railroad company, the court said:

"If the appropriation of the part and its use as a railroad resulted in flooding the remainder of appellant's lands, the damage so occasioned should be included in the assessment; but no account should be taken of injuries thereafter to result from an improper construction or maintenance of the bed, for the condemnation does not authorize either, and the corporation that condemns the land will be liable for such injuries as may thereafter result therefrom."

We have also held in condemnation proceedings by railway companies that where, at the time of the trial, it is shown that the railroad has been constructed over the land sought to be condemned, and damages have resulted to the land owner from faulty or improper construction, such damages may be recovered in the condemnation proceeding; but they are not allowed because they are a part of the compensation allowed the land owner for property taken or damaged within the meaning of the Constitution, but are allowed because the railroad company may not injure the property of others by the negligent or unskillful exercise of a right without a corresponding liability; and they may be recovered in the same action because the law does not favor splitting up causes of action.

In the case of Board of Improvement of Sewer District No. 2 v. Moreland, 94 Ark. 380, 127 S.W. 469, we held that improvement districts in cities and towns are quasi-public corporations, having no powers, duties or liabilities except as expressly conferred by statute, and that they are not liable for negligence whereby an employee is injured while engaged in the construction of the improvement.

In Nugent...