Board of Drainage Com'rs v. Board of Drainage Com'rs

95 So. 75 | Miss. | 1922

Lead Opinion

Holden, J.,

delivered the opinion of the court.

The suit is by bill in equity seeking to enjoin appellant drainage districts, upper landowners on the Bogue Phalia, in Bolivar county, from making certain drainage improvements whereby the surface waters from their lands would be collected and discharged into the Bogue Phalia, a natural Avatercourse, in excess of its capacity, causing it to overflow the lands of appellee drainage districts, lower owners along the Bogue Phalia in Washington county. The appeal is from a decree overruling the demurrer of the eleven defendant drainage districts.

The determining question in the case is, whether or not the upper, or dominant, landowners upon a natural watercourse may artifically collect and discharge the surface waters from their lands into the natural Avatercourse, in good husbandry and in furtherance of agriculture, in excess of the capacity of the stream, thereby flooding and damaging the lands of the loAver, or servient, owners bordering on the natural watercourse.

The exact question is new in this state, and is difficult of solution because of the unusual and singular situation to be dealt with in the case before us.

A brief statement of the case, sufficient to understand the decision, is as follows: Bogue Phalia drainage district, and the owners of about one-third of the lands embraced therein, filed their bill to restrain drainage district No. 10 of Bolivar county, and ten other separate drainage districts in that county, from draining the lands embraced in their respective districts into the Bogue Phalia, which is a natural watercourse, about eighty miles long, having its source in Bolivar county, and flowing southerly through that county,, and on through Washington county, to a point about eight miles north of the southern limits of the latter county, turning from the said point easterly and northeasterly for about eight miles, where it empties into the Sunflower river, though, on a direct line from the point where it turns easterly to the Sunflower river, it is about four miles. It and its tributaries drain about four hundred thousand acres of land, and said stream and its tributaries are the only natural drainage of said land.

Bogue Phalia drainage district was organized in 1913, extending from the north limits of Washington county, to within a few miles of the southern limits of said county, and embraces about one hundred fifty-two thousand acres of land on both sides of- said Bogue Phalia, while all of the appellant drainage districts were organized under the laws of 1912, as. amended by the laws of 1914, in Bolivar county, and embrace about two hundred twenty-seven thousand acres of land, of which said Bogue Phalia is the natural drainage. At the time this suit was brought, the appellant drainage districts in Bolivar county had adopted their system of drainage, all leading into the Bogue Phalia; the lands therein had been assessed, and the assessments approved; bonds for than one million five hundred thousand dollars had been issued; taxes in excess of three million dollars had been levied ; and a large part of the work had been done.

Three of appellant, drainage districts in Bolivar county are on the west side of Bogue Phalia, and the other eight are on the east side thereof, and all of them are north of appellee Bogue Phalia drainage district and the lands embraced in the Bogue Phalia district constitute about thirty-eight per cent, of the acreage naturally drained by said stream, while the lands embraced in the districts in Bolivar county constitute about sixty-two per cent, thereof.

The complainants below alleged, in substance, that, prior to the organization of the Bogue Phalia drainage district, many thousands acres of land of the lower owners were frequently overflowed by flood waters from said Bogue Phalia, that this condition was increased, as a result, of the organization of Bogue Hasty drainage district in Bolivar county and the drainage of its lands into the Bogue Phalia, and by reason of a cut-off in the bend of the Bogue to accelerate the flow thereof; that in consequence thereof, and for the better improvement of the lands therein, the Bogue Phalia drainage district was organized; that it adopted a system of drainage designed by an eminent engineering firm, which had the effect to afford better drainage of the lands embraced therein, perhaps than any other body of lands in the Delta; that, as a means of relieving the lower reaches of the Bogue Phalia, various ditches and canals were dug leading into the Sunflower river, and among them a very large canal or ditch, known as ditch No. 12, from the Bogue Phalia to Sunflower river, with the expectation of diverting from the Bogue about two-thirds of the water flowing therein for the relief of the lower reaches of the Bogue; that the cost of construction of its canals and ditches, cleaning out Bogue Phalia, and completing its system of drainage, amounting to about seven hundred fifty thousand dollars, of which said ditch No'. 12, diverting water from Bogue Phalia to Sunflower river, cost in excess of three hundred thousand dollars; that many thousands of acres of land have been brought into a very high state of cultivation by means of the completion of said drainage system; and that more than seventy-five per cent, of the lands embraced within the said district are in a high state of cultivation. •'

The bill complains of said district No. 10 in Bolivar county and its contractor, that they intend to drain the lands embraced in said district into the Bogue Phalia, through and by means of enlarging and deepening Knox Bayou, a natural watercourse which flows through said district No. 10 and empties into the Bogue Phalia, and by means of ditches leading into said Knox Bayou; that the consequence of which, if done, will be to increase the flow of water in Bogue Phalia beyond the capacity of said stream, and will increase the flood level in the lower reaches of the Bogue Phalia from one to three feet, whereby many thousands of acres of land in said Bogue Phalia district, presumably near the mouth of the Bogue, will be subjected to disastrous inundation several times each year, according to the rainfall, and would render futile and ineffective the splendid drainage system of the Bogue Phalia drainage district; that the increase in the flood level of the Bogue and the flow of water therein beyond its capacity, will result, through the scheme of drainage through Knox Bayou, as proposed by said district No. 10, from draining into the Bogue, “water which now evaporates or is taken up by the land on which it falls without reaching the Bogue; and, by increasing greatly the flow of surface water which now finds its way to the Bogue, by means of collecting such surface water into ditches and canals and projecting it into the Bogue.”

In their amended bill against all of the eleven appellant drainage districts in Bolivar county, the appellees, complainants below, reaffirmed the foregoing facts,’ and further alleged, in substance, that if all of said districts, defendants’below, be allowed to drain their lands into Bogue Phalia, as they contemplate, it is absolutely certain that said Bogue is insufficient in channel capacity to carry off the water which now finds its way therein, when the same is increased, as it will be from the combined drainage of water therein by all of the said districts; that the effect of the completion of the drainage system of said districts will be to increase, by not less than three feet, the flood height of water in the Bogue; that, as the result of that, not less than thirty-five thousand acres of land in the Bogue Phalia drainage district will be subjected to disastrous inundation, several times during the year, according to the rainfall, but sufficient to destroy their value as farm lands, and the drainage of all land in said district, including that not actually overflowed, would be seriously damaged and rendered of little value.

It is charged further that the appellant drainage districts have proceeded to drain their surface waters into the Bogue Phalia on the theory that they have the legal right to do so, regardless of the effect such drainage would have in flooding the lands along the lower readies of the Bogue; that, while the exact damage that may be done by each of said districts cannot be definitely ascertained, the combined damage will be overwhelming and destructive to complainants’ lands; and, not only that, the Bogue will afford inadequate drainage for all parties concerned, both complainants and defendants, in that it will simply be a ditch taxed belond its capacity, after millions of dollars have been expended in an effort to secure drainage.

The bill seeks to enjoin appellants from the construction of additional canals leading into the Bogue, and to compel the filling up of those already constructed which flow into the Bogue, or, if mistaken in that belief, then that the canals be restored to the condition in which they were at the time of the filing of the amended bill. The demurrer of the appellants, admitting the truth of the allegations of the bill, contends that the chancery court of Washington county has no jurisdiction of the cause, and that the bill shows no equity upon its face.

We shall first dispose of the question of jurisdiction. The contention of appellants is that the venue of the action was in Bolivar county instead of Washington county, because the suit is one “respecting real property” in Bolivar county, where defendants reside, and therefore the chancery court of that county has sole jurisdiction.

The opposite position of appellees is that, under section 321, Hemingway’s Code (section 561, Code of 1906), the suit was properly brought in Washington county, where the land directly affected is situated. We think the chaneery court of Washington county had jurisdiction of the case. This seems to be the most reasonable construction and application of the statute, and is probably the better view.

It will be observed that, on the main question, we are confronted Avith the serious and decisive inquiry of whether the upper landowners on a natural watercourse may be deprived of, their right of drainage into the natural and only outlet, in pursuance of good husbandry and in the reasonable use of the stream, where the drainage is of surface waters in artificial channels into the watercourse in excess of the capacity of the stream, thereby flooding and damaging the lower riparian oAvners; or whether the upper OAvner may exercise his right to drain into the natural watercourse under such circumstances, and the injury to the lower owner resulting therefrom is JLamrmm absque injuria.

The difficult situation is this: The upper owners on the watercourse have the natural and legal right to drain their surface waters into the watercourse; but it is equally true that the law prohibits an adjoining 'owner of land from collecting his surface waters and discharging them in a body upon the adjoining owners. Thus it will be seen that the conflicting rights of the upper and lower owners, or adjoining OAvners, are sharply presented for solution in this case.

We find no trouble in declaring the law to be in this state that the adjoining owner cannot discharge his collected surface waters upon his neighbor; and there also is no doubt that the law gives the right to the riparian owner to collect and discharge, surface waters from his land, in good husbandry, into the natural watercourse, when such right-is reasonably exercised.

But whether the upper OAvner may drain his surface waters into the Avatercourse in excess of its capacity, and thereby damage the lower owner, which is in effect, by indirect means, the collection of drainage waters and discharging them upon his adjoining neighbor as prohibited by the law of this state, is one of the serious phases of this case.

It will be noted there are eleven drainage districts that, acting separately and distinctly, propose to drain into the watercourse, and it does not appear that the drainage waters from any single one of these districts would exceed the capacity of the stream, but the charge is that the combined waters from all of the districts would exceed the capacity of the watercourse. It is not disclosed how many, but one or more of the districts could drain into the outlet before the channel would become inadequate to carry the water away without flooding the owners in the lower reaches of the stream. It does not appear what amount of water is contributed by the different districts, nor at what point along the eighty miles of the watercourse the flooding would begin when the combined waters are discharged into the stream.

Our conception of the case is that the owners of the thirty-five thousand acres of land in the loAver reaches of the watercourse are overflowed from the combined waters drained into the stream by the eleven separate districts on the Avatercourse in Bolivar county and by the owners on the stream in the upper part of Washington county, who are in the Bogue Phalia district, the complainants in this case;

Now the question arises, shall the rule be adopted in this state, dealing with such a situation respecting the vast fertile lands of the Delta, that the large number of upper landowners, owning millions of dollars worth of land, equal in fertility to that of the Nile, be deprived of the exercise of their natural and legal right to drain their lands into the natural and only watercourse, in pursuance of good husbandry and the promotion of agriculture, because the lower, or servient, owners will thereby be flooded and damaged?

Or shall this court adopt the rule, a rule of advancement and progress, that the dominant owner whose own independent act of draining into the watercourse, which of itself is not in excess of the capacity of the stream, is not to be deprived of such legal right to the reasonable use of the water course because other landowners, separately and independently, discharge their collected waters into the stream, which combined with his exceed its capacity?

We do not think the rule in this state, prohibiting the adjoining owner from collecting his surface waters and discharging them upon his neighbor, is applicable in this case, because the discharge of the collected waters into the natural outlet here is but the exercise of the right of the riparian owner to reasonably discharge his surface water into the watercourse. But whether the upper owner may exceed the capacity of the stream and thereby damage the lands of the lower owner is a question that we must now decide.

We have no decision of our courts to govern us, and the authorities elsewhere are in conflict; the greater weight, in number of decisions, however, supports the principle that the upper owner is not unlimited in his use of the watercourse, and cannot increase the flow of the stream beyond its natural capacity to the injury of another. In other words, the majority of the courts hold, and the text-writers announce it as the accepted view, that the right of the upper owner to drain into the watercourse is qualified to the extent that the flow must not be increased beyond the capacity of the stream.

There is also a line of decisions announcing the opposite view that the right to drain into the outlet is unlimited; that the capacity of the stream may be exceeded, and the resulting damage to lower owners is damnum absque injuria. We shall refer to the decisions later on in this opinion.

If' we follow the rule supported by the majority of decisions, that the right to discharge collected surface waters into a watercourse is limited by the provision that the capacity of the stream shall not be exceeded, we will have adopted a rule working a great hardship on the upper landowners along the Bogue Phalia and its tributaries for many miles, and will prevent the owners of these thousands of acres of land from improving and cultivating them, because they have no other outlet than the Bogue Phalia by which they may discharge the vast quantities of water of this watershed. It would, in effect, destroy the legislative policy as manifested in our drainage district laws of the state.

To so hold would mean that the owners of the land lying in the lower reaches of this eighty-mile water course would be able to prevent the use of the stream by all of the upper owners for drainage purposes in good husbandry. It would be to deny the use of the stream to the upper, or dominant, owner and give its entire use (a monopoly) to the lower,, or servient, owner.

This rule, if followed by us, would mean that the lower owner may thus solely utilize the stream for drainage purposes, because the upper owners, acting separately and independently, in discharging their waters into the stream would, by coincidence, thereby increase the flow beyond the channel capacity, not by the discharge of a single landowner, or a single group of landowners, but by the combined waters of all the oiyners located above the appellee drainage district.

The logic of such a conclusion is that, because one of the upper owners has exercised his right to drain into the stream, which incidentally increased the amount of water beyond its capacity, all of the other owners must desist from using the watercourse. Or to put it in another way, the independent action of each upper landowner in the reasonable use of the stream for drainage purposes would result in a situation which would prohibit or deny to any or all of them its use.

To follow this rule 'urged by the appellee would be to destroy the right of the upper riparian owner to use the natural watercourse for reasonable drainage purposes, although his own independent use of it would not overtax the capacity of the stream, and such use by him alone would be reasonable and proper, Is tbe upper owner to be deprived of his right to discharge water into the watercourse merely because others are exercising the same right, resulting in an overflow from the combined waters? If so, then he is deprived of a substantial property right, a right to drain into the natural watercourse as an incident to ownership of the land.

To follow the principle urged would be to malee the lower or servient owner the dominant owner, and the upper owner the servient owner, a reversal of rights by virtue of the position of the owners. It would deny the upper owners the use of the means of drainage afforded by nature, appurtenant to the land, a property right, to drain it in good husbandry, for better health conditions and in promotion of agriculture; and in the particular case before us would result in destroying an immense quantity of fertile land and hinder progress and development of the Delta section of our state, and impose great hardship upon the appellants, and others in like' situations. Furthermore would it not be impracticable to enforce the restraining order of the court?

Viewing the other side of the case, we realize that a decision in favor of the upper owners would also work a hardship upon the lower owners. Hardship in the case cannot be avoided. The position of the appellees, lower owners, is not without merit, and is supported by good authority. That the adjoining landowner, under the law of our state, is to be protected against the collected waters discharged upon him by his neighbor, certainly cannot be denied. And the lower riparian owner is to be protected in his rights to the reasonable use of the watercourse flowing through his land, and is ordinarily entitled to have the water flow as it should flow;in its natural course, and not increased or diminished to his injury.

After a careful consideration of the difficult question presented, we have decided to follow that line of decisions which hold that the upper owner may reasonably drain his surface waters into the natural watercourse, in good husbandry, and this right may be exercised by him without any qualification or limit; and if he thereby increase the flow of the stream beyond its capacity, which resnits in flooding and damaging the lower owner, such damage will be damnum absque injuria; damage without legal injury, for which no right of action will lie.

We think this is the better rule to adopt in our state, in view of the peculiar local conditions and topography to which the rule may be applied. We believe that in such a case where the upper or lower owner must necessarily suffer, it would be more reasonable and just to put the loss upon the lower owner, who, we may say, should have reasonably anticipated the drainage of the lands.above him into the watercourse running through his land. The lower owners may have reasonably known that the upper owners would exercise their right at some time to drain their surface waters into the only watercourse available as an outlet.

The upper owners knew they had the right to drain their lands into the watercourse when they bought them, and could not have reasonably anticipated that a condition would arise, by reason of so many other owners draining into the stream, that would cause their use of the stream, in the exercise of their independent right, to exceed its capacity and overflow the lands below. Each upper owner, exercising independently his absolute right to drain into the watercourse, has done nothing himself to injure the lower owner, because his drainage alone would not exceed the capacity of the stream, and the fact, or coincident, that the other owners exercised their independent right to drain into the stream, should not result in depriving the individual owner of the right to the reasonable use of the stream for drainage purposes, though it seems a contrary view is expressed in Warren v. Parkhurst, 186 N. Y. 45, 78 N. E. 579, 6 L. R. A. (N. S.) 1149, 9 Ann. Cas. 512, which case differs from the one at bar in that there was a combined pollution of the stream by upper owners.

The combined waters of all of the upper owners which resulted in overtaxing the capacity of the stream was hut a natural result of the exercise of the right of each owner to use. the stream for his separate benefit. The servient owner below ought not to be allowed to complain of the natural result following the individual and separate rights of the upper owners to drain into the watercourse.

Every lower owner under the circumstances may expect such natural result. It is observed and experienced on the larger waterways of our country. And it appeal's to us the rule Avould be wholly unjust and unreasonable to say that one landoAvner, or several landowners, in the lower reaches of a long stream, could perpetually enjoin thousands of other upper landowners, located along the stream, from its reasonable use in draining surface waters into it, which would result in an overflow of the lower owners on account of the combined waters of the dominant oAAmers of the stream and its tributaries. Moreover, the Bogue Phalia drainage district in the northern part of Washington county contributed drainage waters to the stream which may have, according to the record, so increased the floAv -that Avhen it reached the owners of the loAver reaches the capacity of the channel was exceeded- and caused the overfloAV. It is not shown where, at Avhat point, or what particular discharge of waters proximately caused the channel to overfloAV.

The leading case supporting the view expressed above is Musell v. McGowan, 129 N. C. 93, 39 S. E. 729, 85 Am. St. Rep. 705, which case has been followed by other courts. This case announces the rule expressly -that the right to drain into a natural watercourse is not limited to- the natural capacity of the stream. We think this, principle is sound, and prefer to folloAV it instead of that line of decisions holding to the contrary. San Gabriel v. Los Angeles, 182 Cal. 392, 188 Pac. 554, 9 A. L. R. 1200.

The' leading case holding the opposite vieAV, that in draining into the Avatercourse the flow must not be increased beyond its natural capacity, is Noonan v. Albany, 79 N. Y. 470, 35 Am. Rep. 540, which is cited by the text-writers and followed by McCormick v. Horan, 81 N. Y. 86, 37 Am. Rep. 479; Jackman v. Arlington Mills, 137 Mass. 277; and Hicks v. Owensboro, 6 Ky. Law Rep. 226. The rule is also announced in Tillotson v. Smith, 32 N. H. 90, 64 Am. Dec. 355; Hentz v. City of Mt. Vernon, 78 App. Div. 515, 79 N. Y. Supp. 774; Lumley v. Village of Hamburg, 181 App. Div. 441, 170 N. Y. Supp. 462; Spink v. Corning, 61 App. Div. 84, 70 N. Y. Supp. 143; McKee v. Delaware Co., 125 N. Y. 353, 26 N. E. 305, 21 Am. St. Rep. 740; Grant v. Kuglar, 81 Ga. 637, 8 S. E. 878, 3 L. R. A. 606, 12 Am. St. Rep. 348; Martin v. Schwertley, 155 Iowa, 347, 136 N. W. 218, 40 L. R. A. (N. S.) 160; Franz v. Jacobs, 183 Ky. 647, 210 S. W. 163; Thompson v. Andrews, 39 S. D. 477, 165 N. W. 9; 2 Farham on Waters 969.

It seems that the rule followed in the above authorities was first announced in Noonan v. Albany, supra, and appears to have been followed and cited by a large number of the decisions rendered by other courts. The rule announced in that case, which has led the text-writers to sáy that it is the present accepted view, was based upon a state of facts somewhat different from the case at bar.

The Noonan v. Albany Case, supra, was one where the city of Albany, by- means of sewers and the manner of grading a certain street, concentrated the surface water and sewage of a large territory, and discharged it in one body (italics), at the junction of two streets, into a ravine or rivulet (italics). It passed after its discharge over ground used as a dumping place for refuse, and down a declivity until it reached the valley or bed of the ravine, and flowing easterly reached the premises of the plaintiff, and having no sufficient outlet flooded, plaintiff’s lot and deposited thereon the filth carried by the sewers, and the sand and dirt washed down by the water as it passed over the dumping ground^

It will be observed that the size of the water course in that case was small, with very little carrying capacity, and the collected waters there were discharged in one body into this small channel; that is, the water was discharged in one body at one point, and the channel was obviously incapable of carrying the water away without overflowing the lower owner.

In the case before us the watercourse appears to have been of good size and sufficient capacity to ordinarily drain the watershed comprising about six hundred square miles; and the further distinction is that the water in the New York case was discharged in one body at one point into the channel, whereas here the discharge of the drainage into the watercourse is not in one body but by many different ditches, canals, and drains entering the stream at various and different points.

The cases may be distinguished on the'theory that, in the New York case, the discharge of the water in one body was such as to cause reasonable anticipation that it would exceed the capacity of the small channel and overflow the lower owners, but in the instant case the water is discharged at different points and in separate quantities, not by one person, nor in one body, but by many landowners acting separately and independently in the exercise of their right to drain into the natural watercourse of the watershed.

However, we do not rest our decision in this case upon the ground that there is a distinction in principle in the two cases. The principle announced may apply in both cases, but for the reasons given by us we- have declined to follow the rule announced in the New York case.

It is true the appellees are entitled to- the benefit qf the rule that water should flow as it is- want to flow, but we think with this exception or qualification, that it may be increased by a riparian owner who, in the reasonable ex-' ercise of his right of drainage, discharges into the stream in excess of its capacity.

The complainant’s bill, also charged that the defendant below could avoid the disastrous consequences to complainants by constructing a cut-off through what is.known as Porter’s bayou to the Sunflower river, which “could be constructed at a cost not prohibitive.” We see no merit in the point, for the reason the allegation is not sufficient to bring the appellants within the rule that, where there are two reasonable ways of constructing, ~ one of which would damage the appellee and the other do him no injury, the latter plan should be followed. The naked allegation that the other method “could be constructed at a cost not prohibitive” is not sufficient to entitle the appellee to the benefit of the rule.

In view of the above conclusion it follows that the decree of the lower court must be reversed and the bill dismissed.

Reversed and dismissed.

Sykes, J., takes no part in this case.

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Concurrence Opinion

Ethridge, J.

I concur in the opinion of the court (except I doubt the jurisdiction of the chancery court of Washington county to entertain the suit), because I understand that the case of Indian Creek Drainage District v. Garrott, 123 Miss. 309, 85 So. 312, and Jones v. George, 128 Miss. 576, 89 So. 231, hold that section 17 of the state Constitution has no application to the drainage districts in so far as concerns damages not flowing from a taking, and that when the legislature confers a right on a drainage, district, but makes no provision for damages, the exercise of such rights by such district is damage without legal injury, so far as damages flowing collaterally, or to persons not in the. district, are concerned. I dissented in both of these cases and set forth to the best of my ability my reasons therefor, and in the case of Jones v. George, drew a distinction between a public corporation or quasi-corporation and a private individual in the exercise of the rights of drainage and leveeing. At page 592 of 126 Miss., at page 237 of 89 So., I said:

“There is also, in my opinion, a material difference between the right of an individual , or a private corporation as riparian owner, and the rights of the public corporations, Avliicli must have the poAver and prestige of the state to exercise rights. An individual must necessarily be limited, both in the extent of the construction and in the amount of cost involved in constructing a levee; Avhereas a drainage district, as a corporation, has multiplied poAver in this field. An individual is restricted by a decent regard for his neighbors’ rights and Avith a Avholesome fear of his neighbors’ anger, in case he goes too far in inflicting injury upon his neighbor; but the state may create a public corporation against Avhich the individual is powerless, and it may and frequently does Avholly ignore a citizen’s rights or his feelings in the work it may do. A corporation exercising the power of eminent domain is exercising a public power, which, in the nature of things, can only be exercised for the public good, and no construction should be adopted which impairs the provision ,of the Constitution for compensation or damages for the taking of property for the public good.”

But for the cases above named I would be of the opinion that the appellee was entitled to damage, but I regard the decisions as controlling on this question and must yield my private judgment to the solemn decision of the court, until that decision is attacked and modified or overruled in the legal method. I never had any doubt that the individual landoAvner had a right to drain his lahds into a natural watercourse, even though so doing might overflow the banks of the stream and damage a lower owner. I think the lower owner takes his land subject to the right of the upper owner, and his remedy for such a situation is to dredge, or channel, or levee- against such overflow Avaters, or construct artificial spillways or conduits to care for the surplus waters. To hold otherwise, in my judgment, would-prevent the proper use of the lands of the state, or a good part of them, for legitimate purposes. I recognize the difference between the amount of damage resulting from a public corporation, or drainage district, and that which would flow from an individual drainage project.. I think the drainage laAvs ought to be so shaped that injury would be cared for, but this is a matter which the court cannot properly take care of.' It is to be hoped that the legislature at its next session will deal with the subject in such manner as to get the benefits of the drainage systems, and make proper compensation for such injuries as necessarily flow from their creation to other owners. Before a district is created, the whole benefits and burdens should be considered, and unless the benefits, so considered, exceed the damages, so considered, it should not be created.