Aldridge v. Bogue Phalia Drainage District

64 So. 377 | Miss. | 1913

Smith, C. J.,

delivered the opinion of the court.

Appellant’s first, second, and fourth assignments of error are governed by what was said this day in the opinion rendered in the case of Wheeler & Silber v. Bogue, Phalia Drainage District, 64 So. 375. The other assignments will be set forth and decided seriatim..

Third. “That the evidence shows only a small part of appellant’s lands, if any, are benefited or will be benefited by the installation of the proposed drainage system, and that therefore the remainder of said lands should not have been assessed for any sum.” The question here raised is one of fact decided by the court below on conflicting evidence, and its decision, therefore, is not open to review. •

Fifth. “The court erred in allowing the witness George Metcalf to answer the following quéstion propounded tó him by the attorney for the drainage. district, without first having been qualified as an expert and without having been shown to be familiar with the lands in ■ question: ‘What is your opinion as to that being a well or properly drained piece of property under the conditions existing there?’ and without having been familiar with the conditions existing there.” Conceding that the objection to this question should have been sustained, there' is no probability that the decree of the chancellor would have been otherwise than what it was had he sustained the objection and excluded the answer.

Sixth. “The court erred! in overruling the objector’s motion for a trial by jury.” The right of trial by jury guaranteed by section 31 of our Constitution does not “extend to questions in the trial of which a jury is not necessary by the ancient principles of common law.” Lewis v. Garrett, 5 How. 434; Isom v. Railroad Co., 36 Miss. 308.

Affirmed*