Corley v. Board of Levee Commissioners

49 So. 266 | Miss. | 1909

Whitrield, C. L,

delivered the opinion of the court.

The jury in this case found that the plaintiff was entitled to-recover, and yet, having thus fixed the liability, awarded him only $1 for his damages. The only question, therefore, on this record, in this attitude of the case, practically, is whether the damages were sufficient. Without going into’ the testimony in detail as to the kind of damages, it is enough to say that on the-testimony in the record there was abundant proof of damages sustained to the crop of 1906 to an amount of $1,000 or more. The amount found by the jury, to wit, $1, is absurd, in view of the testimony.

We concur in so much of the finding of the jury as declines to award the plaintiff any damages for any permanent injury to his land. There was quite sufficient evidence, which the jury ■doubtless believed, that his lands were not permanently damaged at all by the new system of drainage, but rather improved. But the evidence does show, and shows with sufficient clearness, •considerable damage, the amount to be fixed by the jury, sustained in the destruction or injury of his crops for the year, 1906. It is shown that there was an unprecedented rainfall in that year, and, to sum up shortly, the result of the evidence in the case is that the water was ponded up over the plaintiff’s land to a much greater depth than it would otherwise have been, be•cause of this unprecedented rainfall, but that there was damage, and serious damage, inflicted upon his crops, due solely to the ■construction of the new levee. Upon this state of the case the court instructed the jury, in substance, that unless they believed the entire damage to the crops was due solely and exclusively to the levee, and not at all to the act of God, they would find for the defendant, and refused the charge No. 1 for the plaintiff to the contrary. This appears from instructions 6, Y, and 15 given for the defendant, and No. 1 refused to the appellant. These instructions asked for the defendant are manifestly erroneous, and instruction No. 1 asked by the plaintiff should have been given. See 29 Cyc. 504; City of Joliet v. Shufeldt, 144 Ill. 403, 32, N. E. 969, 18 L. R. A. 750, 36 Am. St. Rep. 453. 'To make the matter plain, suppose the evidence showed clearly that one half the damage to the crops of 1906 was due solely to the levee, and the other half solely to the act of God, the unprecedented rainfall. Is it possible that it can be the law that -the defendant could escape liability for that half of the damages ■due solely to the construction of the levee % Surely not. And the evidence in the .case plainly shows that there was damage, .and a material percentage of the damage, due alone to the construction of the levee.

It is to be noted that the evidence shows, of course, that the new Ward Late levee crossed and obstructed certain well-defined natural water courses, and thus impeded and interfered with the drainage of Corley’s land. The very effort, shown by the testimony, to open and widen Harris Bayou culvert, for the express purpose of relieving appellant’s lands of the waters backed up and ponded over them, by reason of the construction of the Ward Lake levee, is a most potent circumstance establishing the fact that the new Ward Lake levee had obstructed the flow of the water through the natural channels, and left it to be. backed up- over the plaintiff’s lands. So far as the right or power of this court to set aside the verdict, because it is not for enough, is concerned, it is only necessary to refer to the case of Moseley v. Jamison, 68 Miss. 336, 8 South. 744.

Because, therefore, the verdict is grossly deficient in amount, and because of the error of the court in giving instructions refered to for the defendant, and refusing instruction No. 1 for the plaintiff, the judgment is reversed, and the cause remanded.