Board of Supervisors v. Carrier Lumber Co., 60 So. 326

60 So. 326 | Miss. | 1912

Reed, J.,

delivered the opinion of the court.

The appellees, owners of land on the east bank of the Cold Water River, filed their bill against the appellant, seeking an injunction restraining the construction of a levee or dam across a certain bayou running out from the west side of the river, and also praying that, upon the final hearing, a dam or levee already constructed across another bayou should be ordered removed.

It is shown that the Cold Water River is navigable, flowing from the hills of this state into the bottom lands. The river,, along and near appellant’s land, flows in a slow, sluggish way, because of the flat lands and the slight fall in the stream. There are many low places and bayous running out from the west side of the river, through which the waters when high, flow, and by which means much of the surplus waters, when there are overflows, are disposed of. These bayous are natural watercourses, and the water, accustomed to escape through them, flows west in times of overflow. One of these bayous, Bookter Bayou is described as being three hundred feet wide and about sixteen feet deep. The board of supervisors of Quitman county, one of the appellants, let aeontract to L. N. Rivers, appellant, for the construction of a levee across Bookter Bayou, the building of which would prevent the water of Cold Water River from flowing into the bayou.

Appellees charged in their bill that the construction of this levee across Bookter Bayou will greatly increase the amount of overflow water on their lands situated on the east side of the river, will largely depreciate the value of the lands by reason of excessive and repeated overflows, and will cause great and irreparable injury thereto, and that the damage to the land by reason of the construction of the levee across the bayou will be continuous and perpetual, if the bayous, which are outlets for the waters of the river intime of overflow, are obstructed by dams or levees. Upon the bill an injunction was granted, a demurrer was filed to the bill, and then a motion to dissolve the injunction which motion was overruled, and an appeal taken.

The appellants contend that the board of supervisors is vested by law with full jurisdiction over roads and bridges, as provided in section 170 of the present Constitution of this state, and that this gives them power to build causeways or levees; that the board is vested with discretion in such matters, and is authorized to construct the levee across Bookter Bayou. It is true that the board of supervisors has been given full jurisdiction over roads and bridges by section 170 of the Constitution, which is to be exercised in accordance with such regulations as the legislature may prescribe; but it can hardly be construed that the board, under the authority given in this section of the Constitution, is given power to construct levees across watercourses, whereby the natural flow of the water will be prevented. The legislature has provided the proper regulations for the guidance of the board relative to roads and bridges. Section 4449 of the Code of 1906 refers to work on causeways. A causeway, however, is different from a levee. It may be necessary, in building-roads through lowlands, to raise the roadbed, and when so raised it is known as a causeway; but even in the case of a causeway going- through such lands, when it reaches a bayou, a bridge would and should be constructed over the bayou for the continuance of the road. In the present case the bill shows that the board of supervisors entered into a contract for the construction of a levee, and not a causeway. The allegations of the bill, which are confessed by the demurrer, control in this case. We do not find any provision in the laws of this state giving the board of supervisors power to so construct levees.

It is settled in this state that the chancery court has jurisdiction to grant an injunction to restrain a person from damming a bayou, or other natural outlet, where the injury resulting from such obstruction is manifest and continuous, or constantly recurring, and the right to relief in the matter is clear. In the case of Learned v. Hunt, 63 Miss. 373, Cooper, C. J., in discussing this subject, said: “The character of the injury inflicted upon the complainants’ land by reason of the obstruction by the locks and gates placed by the defendants in the stream, by which the overflowing waters of the river are returned to it, warrants the interposition of a court of equity to prevent the injury by the writ of injunction. It is true that ordinarily the complainant is required to establish the fact of injury by an action at law before a court of equity will interfere; but where, as in this case, the injury is manifest, the right clear, and the nuisance a continuing one, or of a constantly recurring character, and satisfaction can only be had by repeated suits at law, a court of equity is the appropriate tribunal to reheve, since once for all the right may be established and protected.”

It cannot be said that the board of supervisors are proceeding in this case under the right of eminent domain. Nothing has been done looking to the ascertaining and paying to the appellees the amount of compensation to which they would be entitled, which is required by section 17 of the Constitution. And it cannot be said that the appellees have not shown such individual and special damages arising from the construction of the levee as to give them the right to proceed to abate what might be claimed to be a public nuisance.

The particular rights of the appellees and the special injury they will sustain, as averred in the bill, entitles them to injunction in this case. Pascagoula Boom Co. v. Dixon, 77 Miss. 587, 28 So. 724, 78 Am. St. Rep. 537. In discussing the subject of the power of the chancery court to grant an injunction for the purpose of restraining or abating an obstruction in a water course, we find the following in 40 Cyc. 591:. ‘ A court of equity may give relief by injunction against an obstruction of a watercourse, and this remedy is available, not only to restrain "the continuance of an obstruction already constructed, but also to prevent the erection of an obstruction which is threatened. ■ It is not generally necessary for the complainant first to establish his rights by an action at law, and although he must allege some substantial and appreciable injury to his rights, either present or prospective, he is entitled to a decree for their vindication, as well as for their preservation, and hence need not prove actual damages. Complainant must, of course, show an irreparable injury, present or threatened, for which an action at law will not furnish an adequate remedy; but a showing that he could not avoid injury without large expense and without himself maintaining a nuisance is sufficient. The court may adjust its decree to the rights of the parties, by so regulating the use of the stream as to secure to all the privileges to which they are entitled, or may in a proper case order the removal of the obstruction complained of.”

It is contended by appellants that the appellees’ remedy is at law and not in equity. We believe it will appear clear from what we have said that they are wrong in this contention. The bill of appellees makes the charge that they would sustain an irreparable injury unless the injunction is granted, and they show that the action at law would not furnish an adequate remedy to them. Our courts have been careful in preserving the rights of riparian owners in watercourses. In the case of Liles v. Caw-thorn, 78 Miss. 559, 29 South. 834, it is stated.: “ ‘Water runs, and ought to run, as it was wont to run,’ is a principle of the common law. Every proprietor of the soil through which a stream passes, has a right to have it run in its natural current without diminution or obstruction.”

. The facts in the case of Leflore County v. Cannon, 81 Miss. 334, 33 So. 81, are very much like those in the present case. In that case it Was decided that a county, not proceeding in the lawful exercise of the right of eminent domain, may be enjoined from obstructing a stream by complainant, who will suffer irreparable special damage should the obstruction be permitted. Calhoon, L, in delivering the opinion of the court said: “ ‘Aqua currit et debet currere u tcurrere solebat, ’ is a. maxim as old as the common law on waters. This shows that the board was about to dam up a stream known as Burr Bayou, where the water, left alone, would run as it ought to run, and was used to run from time immemorial. By this dam irreparable injury would have been inflicted, as the bill charges and the demurrer admits, on the complainants. Under our Constitution and laws neither municipalities, nor counties, nor the sovereign state itself, can damage the humblest individual, in violation of the maxim, except in the lawful exercise of the right of eminent domain, and then not without previous compensation ascertained by lawful methods. This is true, regardless of the benefit to the public at large.”

The water of Bookter Bayou should be permitted to run “as it was wont to run.” The chancellor was correct in overruling the motion to dissolve the injunction.

Affirmed.