Board of Levee Commissioners v. Harkleroads

| Miss. | Apr 15, 1885

Cooper, C. J.,

delivered the opinion of the court.

This cause is properly here by appeal. The legislature, by granting an appeal from the decision of the commissioners to the chancery court, from which court appeals may be taken from all final decrees, indicated, as we think, an intention to confer the right of appeal to the losing party, just as it is given to other litigants in that court. 0

By the third section of the act creating the board of levee commissioners power is conferred upon it to exercise the right of eminent domain for the acquisition of such lands as may be necessary for the construction of the system of levees provided for, but compensation is to be made to the owner to the extent of the “ value of the property [taken] and the damages sustained.” It is unnecessary to consider whether the State might have taken the land, paying only the value thereof, without regard to the injury which would result from the uses to which it was devoted, since it is manifest that it proposed to pay both the value of the property taken and the damages.

The measure by which damages are to be determined in cases of this character has been declared in several decisions of this court. We can add nothing to the rule as given in the case of Isom v. The Mississippi Central Railroad Co., 7 Geo. 312, that “the value of the property in market at the time, and the injury then necessarily known to result to the owner, as the necessary and immediate consequence of the public use of his property, without reference to the uncertain or remote benefits or disadvantages that may or may not occur in the future,” is the measure of compensation.

Applying this rule to the facts of this case, we think the appellee is entitled to have the fair market value of the land actually taken, considered as a part of the whole tract, and the damages resulting to his curtilage, by reason of the fact that it was intersected by the levee; and the damages resulting from the depreciation in value of the small body of land situated between the levee and the bayou in rear thereof, and cut into such shape as to be unfit or inconvenient for cultivation ; and the damages suffered by the filling of his natural and artificial drains, this to be limited by the costs of opening others answering to those closed if that be practicable ; and that he is not entitled to any damages arising from the fact that a part of his farm is not protected by the line of levees as located; nor to damages arising from the fact that Beaver Lake, into which the drainage of his farm has flowed, has been cut off by the levees from its natural outlet, unless it be shown that the natural and necessary result will be to cause this lake to overflow his farm to a definite and certainly ascertained extent by reason of its incapacity to receive the surface water flowing into it and which, but for the levee, would be discharged through its natural channel; nor to damages which in the opinion of witnesses will result from the raising of the “ flood line ” of the waters of the river, which result, in their opinion, will follow the erection of the system of levees provided for by the act.

The overflowing water of the Mississippi River is the enemy of the public, and the State in assuming to deal with the danger arising therefrom has not provided for compensating the owners of lands lying along the borders of the river for any injury which may incidentally and possibly arise from confining the waters within the limits fixed by the line of levees.

The testimony of the witnesses who stated that the effect of the levees would be to raise the flood line should have been excluded. The evidence of the appellee that the lands between the levee and the river had been reduced in value seventy-five per cent, should also have been excluded, since a material factor in producing this deterioration was the fact that these lands were or would be unprotected by the levees, and this protection the public is under no obligation to supply. The second and third instructions for the appellee are erroneous, because as written they are broad enough to include the idea that the owner is entitled to damages arising from the fact that a large portion of the farm is deprived of the protection of the levee erected where it is.

The decree is reversed and the cause remanded to the Chancery Court of De Soto County.