Board of Lever Commissioners v. Johnson

| Miss. | Apr 15, 1889

Cooper, J.,

delivered the opinion of the court.

This cause was tried in the court below upon an agreed state of facts, which is, that in October, 1886, the board of levee commissioners, finding it necessary to construct a levee through the plantation of one Mayson, exhibited its petition in accordance with the provisions of its charter for condemnation of the land necessary to be taken. Notice was served upon Mayson, and in due time the “ commissioners to assess levee damages,” appointed as directed by law, convened and having viewed the premises made their award of damages. Mayson claimed to be the owner of the crops then growing on the land, and their value was included in the damages awarded. An appeal was taken from this award, and finally, after eight months of litigation, a judgment was rendered in his favor (including the value of the crops) which was paid by the appellant. The appellees were tenants of Mayson, having leased the lands condemned to levee purposes, with other adjoining lands, and were owing Mayson rent at the rate of eight dollars per acre, which rent they paid to him after the land had been taken under the condemnation proceedings. In October, 1887, they exhibited their petitions against appellant for an award of damages for the destruction of their crops. On this petition the “ commissioners to assess levee damages ” were warned to re-assemble, the appellant was summoned as defendant, and damages were awarded. From the finding of the commissionei’s both parties appealed to the circuit court. The charter of defendant in granting the right of appeal provides that the party appealing shall, “ file in the office of the clerk of the circuit court of the county a written statement distinctly setting forth the matters of fact or of law, or both, complained of,” whereupon summons shall issue, and at the return term, “ the court shall cause the proper issues of fact or of law to be made up, and upon such issues and under the instructions of the court such appeals shall be tried.”

Among other objections taken by the defendant to the award of the commissioners, and specifically and particularly set out in its statement filed on appeal, were the following :

1. That the commissioners had no jurisdiction to award damages for crops theretofore destroyed, because it was impossible for them to know the value thereof, the charter under which they acted not providing for taking testimony, and it being impossible for them to decide upon a view of the property.

2. Because the petitioners were estopped from claiming damages, by reason of their failure and neglect so to do while the controversy was pending between Mayson, the landlord, and the defendant.

3. That the lease not being of record, the defendant was not bound to know of plaintiffs’ interest in the land, and was warranted in treating the crops as the property of the landowner.

4. That the interest of the landlord in the crops exceeded their value, and was paid to him.

5. That the claim of plaintiffs was not preferred within one year after the taking.

'6. That the value of the crops was paid to the landlord.

Some of these exceptions were met by a demurrer, which was sustained, and issue was joined on the others and found in favor of the plaintiffs.

We find no error in the judgment of the court on the demurrer, and the verdict of the jury was not against the clear preponderance of the testimony.

1. The charter of appellant expressly declares that the remedy thereby afforded shall be exclusive, and that no resort shall be had by one claiming damages to any other remedy. It is true that it is not provided from what source the commissioners to award damages shall draw their knowledge touching the value of the property destroyed. Ordinarily, it was assumed, the award would precede the injury, and the commissioners upon a view would determine the damages to which the injured parties would be entitled. But the charter gives to one injured one year in which to institute his action, and this, of course, means one year after the taking by the levee board. An appeal is given as a matter of right, and if there be difficulty in an exceptional case, as this is, in an accurate fixing of damages by the commissioners, the party dissatisfied has a simple and inexpensive mode of securing a trial before a jury where the usual means of proof may be resorted to.

2. No facts were given in evidence from which an estoppel against the plaintiffs would arise. It is not shown that they had notice of any proceeding of condemnation ; nor that there was a controversy and litigation between Mayson and the defendant in reference to the land; nor that Mayson claimed to be the owner of the crops and demanded payment of their value; nor that the value of the crops was awarded to him.

3. The law does not require'a lease for one year to be in writing, and there is, of course, no' requirement of a record of the same to affect with notice one who in good faith deals with the landlord as owner of the land for the term.

4. The exception that the interest of the landlord in the crops exceeded its value, means, if anything, that the plaintiffs had no interest in the crops.

5. The limitation pleaded is not supported by the facts.

6. The fact that the defendant paid to the landlord the value of the crops taken, the same being the property of the plaintiffs herein, can, as matter of course, afford no protection against the present suit. The lessee is owner of the term, and is entitled to notice and to damages as any other owner. Mills on Em. Domain, § 68 ; Lewis on Em. Domain, § 483.

The instructions given on behalf of the plaintiffs as to the measure of damages were erroneous, and that asked by the defendant should have been given.

There is concurrence in all courts in the view that where leased premises are condemned, the present value of the land should be apportioned between the landlord and tenant according to their respective rights ; but what rule is to be applied in making the apportionment has been the cause of some divergence of decisions.

In Parks v. Boston, 15 Pick. 198, the landlord of premises, a part of which was being taken for a street, claimed as compensation the present value of his reversion and the rents reserved during the term, less a deduction for present payment. It was held by the supreme court (in language broad enough to cover cases where there should be a condemnation of the whole premises) that the landlord could only recover the value of his reversion, the argument being that the condemnation to public uses of the land demised did not affect the relation of landlord and tenant, wherefore the landlord was entitled to the value only of the reversion, the tenant to the value of the term, leaving the landlord to his remedy against the tenant for the rent reserved. In Cuthbert v. Kuhn, 3 Wharton (Penn.) 356, it Avas held that a condemnation of a part of the demised premises operated, in equity, as an apportionment of the rent. In Workman v. Mifflin, 30 Penn. St. 362, it was decided that the condemnation of a part of the premises did not apportion the rents at laAv, but in Dyer v. Wightman, 66 Penn. St. 425, the jury having awarded to the landlord the whole value of the land taken (consisting of the whole of the demised premises) it was held that the landlord could not thereafter recover rents from the tenant. In O’Brien v. Ball, 119 Mass., it was held that a condemnation of the whole premises by the city of Boston dissolved the relation of landlord and tenant. In the cases in Avhich it Avas held in these states that the taking of a part of the premises did not operate as an apportionment of the rent, the principle is distinctly announced as the reason for the decisions, that the taking is not the act of the landlord, and not being an eviction by him the rent cannot be apportioned. It is difficult to perceive how the quantity of the estate taken can vary the relations of the parties, since in the one case, as the other, the act is the act of the state. We are Avholly unable to perceive Avhy an act by the state shall be held to be an eviction where the Avhole premises are taken, thereby dissolving the relation of landlord and tenant, while the same act in.reference to only a portion of the premises, is not pro tanto also an eviction, followed by an apportionment of the land reserved.

In Biddle v.Hussman, 23 Missouri 597, i't is held, and we think with reason, that the exercise of the sovereign power of eminent domain, by which a portion of the demised premises is taken, operates as an apportionment of the rent and dissolves the relation of landlord and tenant pro tanto.

The rule announced in that case for the apportionment of the damages meets our approval; under it complete justice is done both to the landlord and the tenant, and a multiplicity of suits is prevented. Under that rule the whole estate condemned is to be valued and apportioned between the landlord and tenant, giving to the landlord the value of his reversion and the rents reserved during the term, less an abatement for present payment, and to the tenant the value of his term less the rent charged thereon. Since the appellees would only have been entitled to the value of their term léss the rents (eight dollars per acre) if an award had been made to them at the time of the condemnation, they should not have been permitted to recover a greater amount in the present action.

Judgment reversed and cause remanded.