Duncan v. Board of Levee Commissioners

74 Miss. 125 | Miss. | 1896

Whitfield, J.,

delivered the opinion of the court.

Section 238 of the constitution excludes compensation for damages accruing to land 1 ‘ because of its being left outside a levee ” — that is, damages inflicted upon the land by the Mississippi river, the ms major, the public enemy. “Left outside a levee ’ ’ presents the idea of defencelessness as against the ravages of the river — the land is ‘ ‘ left outside, ’ ’ left unprotected by the levee. The complementary clause of the section exempts the owner from levee taxes. The idea, the thought, of § 238, is that as the land “left outside a levee,” is to be without levee protection against the river, therefore, it shall not be taxed for levee purposes. All damages, therefore, which accrue to lands from the ravages of the river, because not protected against it by the levee, are not to be compensated for. But damages produced by independent causes, other than being left outside the levee, if in their nature allowable within the rules of law, are still recoverable. Take the case of land so situated — high at the river, with declination and drainage eastward — that the river rarely or never overflows it, and which yields annual crops of great value, yet such, also, in its topography, that were the levee built along its eastern base, rain water, which had theretofore been carried off through natural or artificial drains eastward, would be backed up over it, and destroy its crops. Manifestly this is not damage accruing because of the lands being left outside the levee, but because of the construction of the levee over lands of that situation and topographical character; damages caused, to put it otherwise, not because the lands were unprotected by the levee, but caused by the levee itself.

If the lands had been inside the levee and the declinations and drainage westward towards the levee, damages caused by the obstruction of such drainage would be recoverable, not be- . cause the lands were inside the levee, but because of such obstruction where and as it was produced. Whether inside or outside the levee, if the damage to the land is caused by the obstruction of proper drains, natural or artificial, which flow, by reason of the declination of the land, in the one case eastward to the levee, and in the other westward to the levee, it is in both cases damage accruing, not because the land is left to the ravages of the river, unprotected by a levee, but caused by the building of the levee itself where and as built, over land of that topographical surface. This case falls within these principles — the land draining to the levee — so far as the claim for damages caused by obstruction of drainage is concerned. Nothing should have been allowed for cost of removal of the buildings to the protected side of the levee, because that is made necessary by their being left outside the levee. They must be very speedily removed to save them from the river, and the cost of their removal, therefore, is directly due to the fact that they are left outside the levee. Cost of such removal in (as to this point) a substantially identical case, was denied in Richardson v. Levee Commissioners, 68 Miss., 539. For the error in the action of the court as to damages due to obstruction of drainage, the case is

Reversed and remanded.