Indian Creek Drainage Dist. No. 1 v. Garrott, 85 So. 312

85 So. 312 | Miss. | 1920

Lead Opinion

Holden, J.,

delivered the opinion of the court.

The gist of the complaint of the landowners between the levee and the river and west of the river is: First, that the commissioners of the levee district have no right to levee against vagrant flood waters which have left the channel of Coldwater river and spread over the adjacent lands of the valley, thereby causing irreparable injury by diverting the water upon their lands; second, that if the levee commissioners have such right, then in exercising it they have no authority to obstruct the outlets or natural water courses connecting with the river through which its flood waters pass and spread generally over the lands of the valley, and eventually return to the channel many miles below.

The levee commissioners contend that they have both rights under the law; that the damming against flood waters is a right which includes obstructing outlets of the river. The commissioners claim, however, that the second right has not been exercised here because the outlets are not connected with the river, are not proper water courses, and that the complainants are not riparian owners. These claims are relatively material, as will be seen later on, but we shall consider the two main questions involved while assuming* there is no merit ini the latter claims of the commissioners, so we may go directly and definitely to the two very important and decisive points in the case.

On the first proposition we think that when the flood waters left the channel of Coldwater river and spread for miles upon the lands in, the basin or adjacent valley, they are to be characterized as vagrant flood waters as distinguished from ordinary surface 'or rain waters, or regular running stream waters. ~*

The complaint of appellees is not against the obstruction of the latter kind of waters, but it is against the damming of the flood waters that left the river channel and spread indiscriminately for miles over the land in-the’ basin. A portion of these waters were wont to pass out further into the basin through outlets that were obstructed by the levee; therefore we shall now deal solely with vagrant flood waters, against which the levee Avas built for protection, and which resulted in damaging appellees by diverting them upon their lands.

The question then is, Did the leAUe commissioners haAre the legal right to protect the lands in the district by leveeing against these Avaicrs, and thus incidentally throAving them upon the oAvners outside of. the district? We think so.

Such diversion of vagrant flood waters, Adíen incident to and reasonably necessary, to the effective protection of the lands in the levee district, is Avithin the phrase “damrmm absque injuriaThe damages resulting are Avithout legal injury, and must be borne for the common good. The act causing the damage is done for protection against the common enemy — roaming flood waters. It is similar in principle to the right to protect, from violence against an outlaw who runs amuck, even! though a neighbor is incidentally hurt ini the exercise of the right.

This doctrine has been approved by our courts before and since the adoption of our Constitution of 1890. We find it expressed in the cases of Board of Levee Commissioners v. Harkleroads, 62 Miss. 807; Richardson & May v. Levee Commissioners, 68 Miss. 539, 9 So. 351; Richardson v. Board of Levee Commissioners, 77 Miss. 518, 26 So. 963; Kansas, City, etc., Railroad Co. v. Smith, 72 Miss. 677, 17 So. 78, 27 L. R. A. 762, 48 Am. St. Rep. 579; Ham v. Levee Commissioners, 83 Miss. 534, 35 So. 943; Holman v. Richardson, 115 Miss. 169, 76 So. 136, L. R. ,A. 1917F, 942.

The principle is also announced and applied by the supreme court of the United States in the cases of Jackson v. United States, 230 U. S. 1; 33 Sup. Ct. 1011, 57 L. Ed. 1363; Hughes v. United States, 230 U. S. 24, 38 Sup. Ct. 1019, 57 L. Ed. 1374, 46 L. R, A. (N. S.) 624, and Cubbins v. Mississippi River Commission, 241 U. S. 351, 36 Sup. Ct. 671, 60 L. Ed. 1041.

The Arkansas court in McCoy v. Board of Directors, 95 Ark. 345, 129 S. W. 1097, 29 L. R, A. (N. S.) 396, announces and approves this doctrine, notwithstanding it had before it a constitutional provision identical with our section 17 of the Mississippi Constitution of 1890. Section 17, it is true, adds the right to recover .for property ‘ ‘ damaged ” for public use. Such right existed, however, prior to- the Constitution of 1890 under statute, but the right to recover damages for the diversion of Mississippi river vagrant flood waters was always denied. See Richardson Case, 68 Miss. 539, 9 So. 351, and Harkleroads Case, 62 Miss. 807, supra.

At all events, our judgment is that section 17, Constitution of '1890, does not contemplate damages resulting without legal injury, as in the case at bar. Section 238 of the Constitution of 1890 merely provides what was already the law as announced in the Harhleroads Case, supra. This section, however, does indicate the policy of the state to be that damages are not recoverable on account of diverted flood waters. We do not see why the rule should apply only to riparian owners on the Mississippi river. Where the same conditions exist, similar reasoning would also apply to interior rivers with reference to the right to protect against vagrant flood waters. We think the same rule should and does apply to interior rivers, under the same conditions, in dealing with flood waters. The authorities from other states cited by appellees are not controlling in our state.

Coming now to the second question as to the right to obstruct the outlets or water courses connected with the river, we shall proceed at once to the point.

There is no complaint in this case about obstructing the water courses, and thereby diverting the natural and regular flow of the waters of these channels. But the evil complained of is the obstruction against the vagrant flood waters which would partly pass out upon the valley through these outlets. These water courses or outlets were inactive bayous, sloughs, and depressions which amounted to mere conduits! or passageways for foreign flood waters. They' were not natural running streams nor regular flowing water courses. It is true some of them contained waters of their own, but it ordinarily flowed in no direction. There was no regular and continuous current in these natural water courses. The levee did not interfere with the flow of their own waters, because they had no flow except that produced by the flood waters from the river. Therefore the levee obstructed only flood waters which at unusual times passed through these outlets or conduits. The principal function of the outlets was to assist in carrying off flood waters which had left the river channel and spread over the outlying lands. These flood waters would pass partly through these outlets, hut the greater portion would spread over the land south and east for several miles, and then filially go hack into the river channel. These flood waters did not pursue these outlets and return directly to the river channel through them, hut they spread out for several miles over the lands and. into the bayous, sloughs, and depressions before returning to the river.

We think the levee commissioners had a right to build the levee across these outlets in order to protect against the flood waters. Such obstruction did not interfere with the natural flow of their own surface or rain water, nor the regular original channel water of these outlets. There was a canal, immediately west of the levee, which efficiently carried off all ordinary surface water. Unless a levee could be built across these depressions and bayous, it would be ineffective for the purpose intended, and protection against the flood waters would be thus denied appellants.

We do not intend to hold, nor to leave the impression, that there can be no recovery for obstructing and diverting the regular flow of natural running streams, or for collecting] and diverting surface or rain water to the injury of another. We say that, assuming the water courses in this case are natural water courses from a legal standpoint, still there is no complaint of obstruction of their own flowing waters, and no complaint of obstruction to any other waters of their own, but the case here is against obstructing and diverting vagrant flood waters; and we hold that the law authorized the obstruction of these waters. See cases of Jackson, Hughes, and Cubbins, supra. To illustrate: The channel of Coldwater river could not be obstructed, nor could any of its tributary streams be dammed if of such substantial importance as would result in diverting its own regular flow upon the lands of another. But such is not the case here.

We find from the written opinion of the chancellor who tried this case that his decision in favor of the appellees was controlled, reluctantly, by the Cannon Case, 81 Miss. 334, 33 So. 81, and the Carrier Case, 103 Miss. 324, 60 So. 326. We think the chancellor construed these decisions too broadly, and gave them an effect beyond that which was. in the mind of the court at the time.

The chancellor expresses an opinion that the outlets are natural water courses, and for that reason the levee board had no authority to obstruct them by leveeing across them. This finding of fact will not be ignored; but let us see what the chancellor meant by holding that these outlets were natural water courses such as were involved in the Cannon and Carrier Cases, supra.

It is true these outlets were natural water courses as distinguished from artificial water courses, but they carried no regular running' streams, -with a current that carried their own waters in any direction, unless rain or surface waters. We do not understand that one can obstruct the current or flow of water that does not move in some direction. The most that can be said is that these outlets were mere conduits or passageways, with no regular flowing waters, except rain or surface waters, and passed those waters caused by unusual floods of the Coldwater river. Gullies and ditches which are ordinarily dry may be termed natural water courses whose own natural waters could not be obstructed and diverted to the injury of another, under the case of Ferris v. Wellborn, 64 Miss. 29, 8 So. 165, yet where they are obstructed solely to protect against vagrant flood waters which infrequently pass back out through them from another overflowed stream the rule is different.

The maxim, “Aqua eurrit et debet eurrere ut eurrere solebat,” as applied in the Cannon Case, supra, has no application to vagrant flood waters; ánd we do not think the court had in mind flood waters when it decided the Cannon Case. The court seems to have held that Burr bayou, which was obstructed in that case, was a natural water course, but it also seems clear1 that the court considered that — “Burr bayou is a natural water course, making off from and flowing* out from the Tallahatchie river, in which the water flowed in a well-defined natural water course.”

It seems that Burr bayou was a running stream which if dammed up would result in injury to riparian owners because the regular flow of the stream would be obstructed and diverted upon the bordering owners. If this is a true interpretation of the facts in the mind of the court in that case, then it will be easily seen that the bayous and depressions that were obstructed in the case at bar were a different kind of natural water course, in that a different character of waters were obstructed ; therefore the rule there announced is not applicable in the case before us. If we have correctly interpreted the Cannon Case, then the Carrier Case is not in the way here, because that decision seems to have resulted from following the Cannon Case. We cannot bring ourselves to believe that the court in either of these oases, or in the Hughes Case, 27 So. 744, was attempting to deal with vagrant flood waters. The doctrine that no recovery can be had for diverting flood waters upon the land of riparian owners had been so long established in this state, and the United States .Supreme Court had so ably announced this rule, and the fact that this question had been so often discussed and decided with reference to the Mississippi river:— most of these discussions and. decisions being in view of the court when the Cannon and Carrier Cases were decided — leads us to say that the question of protecting against flood waters was not in the mind of the court when these decisions were rendered.

In the Harkleroads Case, supra, which decision was rendered in 1885, this court said, in substance, that vagrant flood waters are a common enemy of the public, and that no compensation could be allowed to riparian owners who were damaged on account of such waters being thrown upon them by the levee, and that damages were not recoverable for the closing of natural outlets connected with the river, thus recognizing the doctrine of dammrni atysque injuria.

The Richardson Case, 68 Miss. 539, 9 So. 351, was decided in 1801 after the adoption of the Constitution of 1890, and announces the rule that damages are not recoverable on account of diverting water upon riparian owners by levee obstruction. This case holds that such damages are occasioned by unavoidable consequences of the situation and the authorized effort to promote the general good, and are to be borne by the damaged partv.

The Smith Case, 72 Miss. 677, 17 So, 78, 27 L. R. A. 762, 48 Am. St. Rep. 579, establishes the righF to protect against flood waters as distinguished from the waters of a stream, thus recognizing the rule giving the right to levee against such waters after they have left the channel of the stream and become a common enemy. This decision was rendered in 1895. See Ham v. Levee Commissioners, 80 Miss. 534, 35 So. 943; Holman v. Richardson, 115 Miss. 169, 76 So. 136, L. R. A. 1917F, 942; Richardson Case, 77 Miss. 518, 26 So. 963

The supreme court of the United States has several times followed this principle as annoucned by our supreme court. We will not quote or discuss these federal decisions, but shall cite them and respectfully recommend their careful perusal. We think these decisions announce sound and logical conclusions, and would be worthy of following even though our court had not already announced the same principle. See the Jackson Case, 230 U. S. 1, 33 Sup. Ct. 1011, 57 L. Ed. 1363; Hughes Case, 230 U. S. 24, 33 Sup. Ct. 1019, 57 L. Ed. 1374, 46 L. R. A. (N. S.) 624, and Cubbins Case, 241 U. S. 351, 36 Sup. Ct. 671, 60 L. Ed. 1041.

The decisions of our court, cited by appellees to sustain their view with reference to' obstructing natural water courses, are cases where the waters obstructed and diverted were not vagrant flood waters, but were the natural running waters of the water courses that were obstructed. In some .of thetee cases it appears that it was the obstruction of their own flowing or running-stream waters, and in others it was surface or pain waters collected and wrongfully diverted upon another. None of these decisions cited deal with vagrant flood waters that infrequently come and pass from another overflowed stream through the outlet which serves as a conduit to spread the waters upon the adjacent lands of the basin.

The Cannon and Carrier Cases, supra, come nearest to being- in point for appellees, but we have discussed these cases in the light that they were not dealing -with the question of defending against vagrant flood waters.

The decisions of other state courts on these questions are very much in conflict, and we deem it unnecessary to discuss them, because our own court., backed up by the United States supreme court, has already settled the questions in our state. However, a recent- decision by the supreme court of Arkansas in the McCoy Case, 95 Ark. 345. 129 S. W. 1097, 29 L. R. A. (N. S.) 396, is so identical with the case before us that we refer to it as a sound authority upon which to rest.

There is another case, from California, styled Lamb v. Reclamation District, 73 Cal. 125, 14 Pac. 625, 2 Am. St. Rep. 775, which is so clear and logical in its reasoning* we desire to specially cite it for careful perusal. We cannot refrain from quoting a short excerpt from the opinion as follows:

“Wilkins slough is not a channel or fork, continuously carrying a large part, or any part, of the waters of the Sacramento' river. It carries no water at all except ‘in times of flood,’ and then the amount which it carries, when compared with the volume of water in the river, is insignificant. In fact, it has no original water of its own at all, but is simply a conduit by vfhich occasionally1 some of the flood waters of the river escape into the lower lands adjoining. This same office is performed by every other low place along* the bank; and every other part of the levee could be removed as a nuisance if that part of it which is at Wilkins slough can be so removed.”

We think the lower court erred in overruling the motion to dissolve the injunction, and for such error the decree is reversed, and decree will be entered here for the appellants.

Reversed, and decree entered here for the appellants.

Ethridge and Cook, JJ., dissent.

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Concurrence Opinion

Smith, C. J.

(specially concurring).

I am of the opinion that a landowner has the same, but; no .greater, right to obstruct the flow of the flood waters of a stream onto and across hiis land than he has to so obstruct the flow of ordinary surface water; that is, that he has the right to do so for a proper purpose, 'and in so doing must exercise reasonable care to prevent unnecessary injury to other land. I do not understand counsel for the appellee to. seriously contest this right; their principal contention in this connection, being that a landowner1 has not the right, in order to protect his land from the flood water's of a stream, to obstruct the flow of a natural water course running out of or away from the stream. As I understand the record, the levee here in question does obstruct several such water courses, but does not cause any water that ordinarily flows therein to overflow or in any way damage other land, that being prevented by the flow of such water through the Borrowpit canal.

When Coldwater river overflows during the occasional, accidental, and extraordinary floods against which this levee was built to protect the land' within the drainage district, the water covers all of the land traversed by the obstructed water courses, and for the time being they disappear, and aid in carrying off the water only during the first and last stages of the flood, so that their obstruction results only in the flood waters of Cold-water river being caused to cover the land of some of the appellees at an earlier stage of the flond, and to remain thereon for a longer time than it would if the levee had not been built, but the erection by a landowner of such works as will prevent the overflow of his land by the flood waters of a stream will, in probably every case whether a water courtee is thereby obstructed or not, cause such flood water to cover other land sooner and remain thereon longer than it would otherwise. Consequently, the fact that such a result may follow the obstruction of a water course furnishes no reason for denying to a landowner the right to obstruct it when necessary to prevent the water from overflowing his land.

Adjacent landowners have for certain purposes the right to,the unobstructed flow of water in a natural water course, but that the accidental and extraordinary flood waters of another stream may be thereby conveyed away to the damage of other adjacent landowners is not one of such purposes.

That this levee was built by the drainage district, and not by an individual landowner, is of no consequence, for what the individual landowners have the right to do separately they have the right to do collectively, and that is what the landowners whose lands are protected by this levee have done through the instrumentality of the drainage district.

The cases of Leflore County v. Cannon, 81 Miss. 334, 33 So. 81, and Quitman County v. Carrier Lbr. Co., 103 Miss.. 324, 60 So. 326, relied on by counsel for the appellees, are not in conflict herewith; for, as pointed out in the opinion in chief, the levees in question in those cases were not built in order to prevent land from being overflowed by the flood waters of a stream, and the damage which the riparian owners there, complained of resulted from the obstruction by the levees of the usual and ordinary flow of the water courses obstructed by the levees, which last element of damage, I will here again point out, is not involved in this case.. If the complaint of the appellees was that they are damaged because of the obstruction of usual and ordinary flow of the water courses crossed by this levee, a different question would be presented for decision.

The provision of section 17 of our Constitution that “private property shall not be . . . damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law, ’ * can afford the appellees no assistance. Damages in the legal sense, and in the light of which rule this provision of the Constitution was adopted, are only such as result from the invasion of a right; and, since the appellants have invaded no right, either public or private, of the appellees in turning back the escaping flood waters of Coldwater river, they have no just cause of complaint;

It follow's from the foregoing views that I concur in the reversal of the decree of the court below.

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Dissenting Opinion

Ethridge, J.

(dissenting).

I am unable to concur with my Brethren of the majority, and, believing this case to be one of the most important and far-reaching decisions rendered by this court in recent years, I desire to state my views of the issues presented and the law bearing’ thereon.

The chancellor in his opinion says:

“The gravamen of the complaint being: First. That the lands along Coldwater river are higher than the adjacent lands within the drainage district and have never been subject to overflow, and since the construction of the levee that the flood waters of Coldwater river during times of excessive rainis have been confined and caused to flow over their lands, subjecting it to inundation, and that the levees thus confining the flood waters of Coldwater river damage their land. The second ground of complaint is that David bayou, Pompey bayou, Open Mouth lead, and other small streams flowed into Coldwater river, and that the district levees have been constructed across these bayous, and have dammed and prevented the flow of the waters to and from Coldwater river through these bayous into the lowlands, and forced them upon the lands of complainants. . . .

“No effort has been made on the part.of the district to compensate these landowners complaining here, and who are not in the bounds of the district; indeed the legislature did not seem to have in contemplation this item of damage. The manifest purpose of the construction of these levees across these bayouis was to prevent the flow of flood water upon the lands included in and incorporated in the district.

“These bayous are streams through which flow waters into the river from the lands in the district in normal times. In flood times the flow of the water is reverted, and the water flows through these bayous into the drainage district, and thus diminishes the volume and pressure of the water in the channel of Coldwater river.

“These bayous complained of are described as being depressions in the ground, with well-defined banks, water flowed to the river in the winter and rainy season and dry in the summer time, with a width varying from twenty-five to ninety feet and depth from two to ten feet. This is especially true of the bayous denominated Forked Lake lead and Open. Mouth lead, at the points at which the dam was broken by the overflow water, and the main object of the bill seems to be to prevent by in- _ junction the repairing of the broken places in the levee by the district across these bayous. .... .

“In the case I am now considering, it is clear that the drainage district had never exercised the right of eminent domain. It is clear that' there is and will be irreparable damage to the lands between the east bank of the river and the levee constructed by the drainage district; that this damage will be recurrent and continuous. The defendants concede that there is a constantly recurring damage, and they argued the case solely upon the proposition that, the district having a right to build a levee against flood waters, necessarily it would follow that they had a right to dam up' these natural outlets or water courses.

“I can see no difference between Bookter bayou as' described in the Carrier Case or Burr bayou as described in the Cannon Case and the bayous and leads described in the bill and proof in this case. It may be that the .bayous described in this case are net quite so wide, but it is clear that our1 supreme court intended to apply the maxim as to bayous, ‘Water runs and ought tp run as it was wont to run. ’ Every proprietor of the soili through whicli runs a stream hais the right to have the water course run in the natural current without diminution or obstruction. ’ ’

The record abundantly supports the chancellor’s finding and statement of facts with reference to these leads and bayous being water courses. The dam involved in this suit lies on the western side of the drainage district and on the eastern side of Coldwater river, and runs for approximately thirteen miles from north to south, while the river meanders in such manner as to leave a large amount of territory between -the levée and the river, something like forty-five sections of land lying within this 'bend of the river, and on the west side of the levee or dam was constructed a larg,e canal. The proof shows that at the time the dams broke the flood waters coming down Coldwater river struck this canal at the north, and proceeded at a rapid rate through the canal and overflowed its banks, moving logs and other things on the land, and, according to the witness, traveling a,t a rapid rate, with a mighty roar, entered Cold-water river at the south of the canal and levee, and flowed upstream as well as downstream, meeting the flood waters some miles up the river, and by means of the obstructions of the bayous and leads, and the deflection of the water as above described, caused the inundation of the tract between the levee and the river, and also caused the river to overflow on the west side to a greater distance and to a greater depth than it had theretofore overflowed, causing great damage to the owners of this property.

According] to< my understanding* of the law of this .state as heretofore announced in numerous cases, the right of these property owners whose property was so damaged to recover compensation for their damages is clear, and until this time undoubted. The opinion of the majority unsettles the law heretofore announced, and it is exceedingly difficult to estimate the effect of this decision upon the rightte of the citizens; and it will be a wise lawlyer indeed who can advise Ms clients now' what the law is or what their rights may be.

Section 17 of the state Constitution of 1890 reads as follows:

“Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether1 the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the u’se is public.”

This section of the Constitution received a construction by the supreme court of Mississippi soon after its adoption in the case of Vicksburg v. Herman, 72 Miss. 211, 16 So. 434, in which the right to recover for damages inflicted upon private property was given a broad *and comprehensive meaning and effect. The court rendering this' opinion was composed of Cooper, Woods, and Whitfield, each of whom ranks with the ablest jurists of the country. In the course of the opinion the court said on this subject:

“Under our former Constitutions, which provided only for due compensation to the owner for taking private property for public use, it had been long held that, to entitle the private owner to compensation for the tailing of his property for public use, there must be •' an invasion of the property, a trespass upon it, and an appropriation of it to public use. There must have been, formerly, that which amounted to a deprivation of the owner of his property; and merely consequential injuries, resulting from the loss or impairment of some rights incident to the use or enjoyment, there being no invasion of the property itself, were not covered by the constitutional prohibition. Such was the law as. understood and applied before the incorporation in the Constitution of the new words we have referred to. The words are without limitation or qualification. They embrace within their inhibition all those attempting to convert private property to public use, artificial as well as natural persons, municipal and other corporations alike; and they cover all damages of whatever character. We are not to suppose that the framers of the new Constitution employed these additional words, all-embracing in their signification and far-reaching in their1 application, aimlessly and unadvisedly. As the law theretofore was, the taking of private property for public use without due compensation to the owner was inhibited, and the rights of the private person sufficiently guarded. But we are bound to suppose that, in the judgment of the framers of the new Constitution, wrongs were committed by those exercising the right of eminent domain for -which there was no legal redress, and hardships endured by the citizen for which there was no remedy. The citizen was already protected against the tailing of his property for public use without due compensation first made, but there was no protection against injuries to the rights of the owner of private property less than; the appropriation of the property itself. To have inserted the words ‘or damaged’ in the new Constitution, to cover cases already perfectly provided for in the old Constitution, would have been utterly meaningless. The citizen must now be held, under this new provision of our fundamental law, to be entitled to due compensation for, not the tailing, only, of his property for public use, but for all damages to his property that may result from works for public use. He is now secured in his property, and his use and enjoyment of his property. The burdens formerly borne 'by the citizen, resulting, from damage done his property by a diminution or destruction of his right to use and enjoy his own, were designed by this new constitutional rule to be placed upon those by whose action the diminution or destruction was wrought.”

Again, on page 216 of 72 Miss., on page 435 of 16 So. the court said:

“The absolute justness of a rule which forbids the Invasion and impairment of the citizen’s rights to the use and enjoyment of his property, as well as the actual taking of such property without compensation, to our minds, is beyond controversy. The public benefits derivable to the municipality from the losses of the private property owner, in the taking or damaging of his property for the use of all the citizens of the municipality, should he paid for by the whole body' of the corporation, and not by the helpless owner whose property; is taken or damaged, as it seems to us, and as the present Constitution plainly declares.”

The court then proceeded to ■ review the authorities construing the words “or damaged” in other Constitutions, and, among the authorities considered and reviewed by the court and quoted is the case of Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638 et seq. In this opinion by the United States supreme court, construing a provision of the Illinois Constitution worded exactly like our Constitution, after reviewing the decisions of the Illinois court before the adoption of that constitutional provision and after the adoption of it, giving a broad and comprehensive meaning to the words “or damaged,” and making it effective as a protection to the citizens whose property had been damaged by public use, embracing consequential and remote damages as well as direct damages, the United States supreme court said:

“We concur in that interpretation. The use of the word ‘damaged’ in the clause providing for compensation to owners of private property, appropriated to public use, could have no other intention than that expressed by the state court. Such a change in the organic law of the state was, not meaningless. But it would be meaningless if it should be adjudged that the Constitution of 1870 gave no additional or greater security to private property, sought to be appropriated to public use, than was guaranteed by the former Constitution. ”

In answering in that case the argument, made there as made here, that such construction would be a serious obstacle to public improvements, and would result in crippling or denying such improvements, the court said:

“It may he, as suggested by its counsel, that the present Constitution of Illinois, in regard to compensation to owners of private property ‘damaged’ for the public use, has proved a serious obstacle to municipal improvements; that the sound policy of the old rule that private property is held subject to any consequential damages that may arise from the erection on a public use without due compensation being constantly vindicated, and that the constitutional provision in question is ‘a handicap’ upon municipal improvement of public highways. And it may, also, be, as is suggested, doubtful whether a constitutional convention could now be convened that would again incorporate in the organic law the existing provision in regard to indirect or consequential damage to private property so far as the same is caused by public improvements. We dismiss these several suggestions with the single observation that they can. be addressed more properly to the people of the state in support of á proposition to change their Constitution.”

In the case of Richardson v. Levee Commissioners, 77 Miss. 518, 26 So. 963, in. which case counsel for the appellant in the present case was counsel there, this court, speaking through. Judge Whitfield, said:

“The very same section of the Constitution of 1890 (section 17) which provides that ‘due compensation’ shall first be made to the owner for ‘private property taken for public use’ provides also that it shall not be ‘damaged’, for public use without due compensation being first made. The due compensation is, by the Constitution — the supreme law of the land- — -imperatively required to' be first made as well when property is damaged as when it is taken. It is settled by Vicksburg v. Herman, 72 Miss. 211, that the damages referred to in section 17 embrace all damages, direct or consequential, immediate or remote. The measure of the right secured by this section is thus defined and settled by this and previous cases in; this state, and includes all private property taken and all private property damaged for public use. The remedy by which both rights are to be secured, section 17 declares, is to be prescribed by law. The framers of the Constitution, embracing1 the very ablest legal talent in this state, then proceeded, as to levee boards to prescribe the remedy, in section 238. It is admitted that that section did prescribe the remedy for due compensation for private property taken; it is denied that it prescribed the remedy for such compensation for damages to such property not taken. It- is first to be observed that the argument in support of this denial is based almost wholly on the proposition that the damages are consequential, and hence not such in character as this board of levee commissioners is a fit or competent body to assess. But this objection, is ended by Vicksburg v. Herman.”

In Duncan v. Levee Commissioners, 74 Miss. 125, 20 So. 838, it was held that an owner of land left outside of the levee, while not entitled to compensation for the reason that his land is outside of the levee, is entitled to damages caused by the levee itself, such as the obstruction to the drainage of the land so situated. In the course of the opinion Judge Whiteield said:

“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 bieing 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, rainwater, 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 leVne, 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.”

And it was held that Duncan was entitled to damages for the stopping of the water course.

In Hughes v. Levee Commissioners, 27 So. 744, the court held that, in the absence of proof of public necessity, levee comm|issioners have no right to proceed with the construction of the levee damming a natural stream and causing the water to flood plaintiff’s land, before condemning thel same and paying damages therefor. In that case Hughes was the owner of a plantation which was drained by a natural water course named Black bayou, which stream rises on or near the land of Hughes. Appellee’s levee crossed this stream and dammed it, causing the water to be ponded against the levee, and, by back flowage, to flood part of his plantation. The levee, however, did not actually touch or run through Hughes ’ plantation.

In Corley v. Levee Commissioners, 95 Miss. 617, 49 So. 266, it was held that, where plaintiff’s land was overflowed partly because of heavy rainfalls and partly because the works of the defendant levee district obstructed the flow of the water through its natural channels, and the evidence plainly showed that a material percentage of the damage was due to the construction of the levee, a charge that, unless the jury believed the entire damage to plaintiff’s crops was due exclusively to the levee, and not at all to the act of God, they should find for defendant, was erroneous, and the case was reversed becau.se of insufficient compensation for the damage done by obstructing this water course.

In A. & M. R. R. Co. v. Beard, 93 Miss. 294, 48 So. 405, the court again recognized that a party is entitled to damages where another obstructs a water course.

In I. C. R R. Co. v. Miller, 68. Miss. 760, 10 So. 61, it is held that one is liable in damages who collects in artificial channels surface water falling upon his own land 'or that of others, and discharges it in undue and unnatural quantities upon the land of another.

in Ham v. Levee Commissioners, 83 Miss. 534, at page 558, 35 So. 943, 948, another drainage case, the court in its opinion, after discussing other questions in the case, has the following to say:

“The sole remaining question requiring consideration is what rights and remedies the complainants have, and how they can be asserted. There is no contention but that they are entitled to due compensation for the value of all property taken and for all damages caused by the erection of the proposed levee, and there is no denial that this must be made before the property is in fact taken. As to this, appellants have a perfectly plain and adequate remedy prescribed by law, and the methods in which their rights inay be asserted is clearly set out in section 233 of the Constitution, and section 3 of chapter 168, p. 142, Laws 1884. Nor is the extent of their rights subject to doubt. It is true that they cannot recover damages from the fact alone that their lands are left outside the levee, and are therefore not protected from the high water. Recoveiy on this ground is expressly forbidden by section 238 of the Constitution. This branch of the subject was most elaborately discussed in Richardson v. Board of Mississippi Levee Commissioners, 77 Miss. 518., 26 So. 963, and it was there expressly decided that the damagesi mentioned in section 17 of the Constitution, for which due compensation was to be made, embraced ‘all damages, direct or consequential, immediate or remote. ’ See Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; Duncan v. Levee Commissioners, 74 Miss. 125., 20 So. 838. So that appellants have ample protection in existing pro1 visions, not only to prevent the board of levee commissioners from taking any of their property for public use without first fully paying therefor, but to also insure that they will receive due compensation for all damages inflicted, whether such damages are caused by seepage water, damming of surface water, or obstructing of natural drainage, and whether the land affected lies outside or inside of the levee.”

In Liles v. Cawthorn, 78 Miss. 569, 29 So. 834, this court held: “Every proprietor through whose.land a stream passes is entitled to have it run in its natural state without diminution or obstruction.”

And held that — “When the owner of a water mill so builds the dam thereof as to cause the backwater therefrom to injure the power of a like mill on the same stream, the owner of the latter may treat such dam as a nuisance, and of his own authority enter and remove so much of the same as causes the injury sustained.”

In Leflore County v. Cannon, 81 Miss. 334, 33 So. 81, it was held that a county without resorting to eminent domain could not obstruct a stream, and the county was enjoined from so doing. Judge Calhoun in this case said:

“Under our Constitution and laws neither municipalities, nor counties, nor the sovereign state itself can damage the humblest individual, in violation of the maxim \f‘Aqua cwrit et debet currere ut currere solebat”], 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. ’ ’

■ To "the same effect is Board of Supervisors of Quitman County v. Carrier Lumber Co., 103 Miss. 324, 60 So. 326.

In Thompson v. Railroad Co., 104 Miss. 661, 61 So. 596, it was held that a railroad company is responsible for any damage resulting from its obstruction of a natural water course, without reference to whether or not the obstruction was reasonable or unreasonable. In the con-eluding paragraph of the opinion in this case this court said:

“In this state it has been held that the railroad must take care of the flow of the surface water, if to do so would not result in any danger to traffic, and if this could be done without incurring an additional expense out of all proportion to the injury of adjacent lands. From the necessities of the case, the courts adopted a rule with regard to the flow of surface water applicable to railroads which would not apply to ordinary landowners. Sinai v. Railway Co., 71 Miss. 547, 14 So. 87. So far as the flow of water in natural courses is concerned, the railroad company would be required to answer for any damage resulting from its obstruction of such water courses, without reference to whether or not the obstruction was reasonable or unreasonable. In other words, the obstruction of a natural water course imposes upon the obstructor the' obligation to answer for all damages flowing from such obstruction.”

In Learned v. Hunt, 63 Miss. 373, there was a bill filed for an injunction to prevent obstructing by locks or dams the natural flow of water through what is known as Isenhood bayou. It was alleged that Isenhood bayou was a natural outlet or drain by which such overflowing waters of the Mississippi river returned to that river at a point below, and that if this bayou was closed or obstructed in any way the water will stand upon the plantation for a long while and greatly injure thepi. In the opinion of the court by Cooper, C. J., it is said:

“ ‘The character of the injury inflicted upon the complaintnt’s lands by reason of the construction 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.”

In the majority opinion, referring to the bayous involved in this suit, it is said: “These water courses or outlets were inactive bayous, sloughs, and depressions which amounted to mere conduits or passage ways for foreign flood waters. They were not natural running streams, nor regular flowing water courses. It is true some of them contained waters of their own, but it ordinarily flowed in no direction. There was no regular and continuous current in these natural water courses.”

While I think the record will show that this statement is inaccurate, and that these are streams through which water flows at certain intervals regularly, still, accepting this statement as true, the majority opinion overthrows the settled law of this state upon the subject of what constitutes a watercourse.

In Ferris v. Welborn, 64 Miss. 29, 8 So. 165, in the second syllabus on the 'subject of water courses, it is said: “And a creek which has a channel one-half of a mile long, with definite bed and banks of varying width and depth, through which water is conveyed and discharged into lowlands adjacent, to a running stream, though it be dry most of the time, but running when there is water' to be carried off by it, is a water course, with all of the incidents thereof.”

In the first syllabus of this case it is said: “A riparian owner has the right to have a natural water course which drains his lands adjacent thereto' remain unobstructed and as nature made it, in, its course onward through the lands of another. ’ ’

The opinion in this case was rendered by Judge Campbell.

In Belzoni Drainage Commission v. Winn, 98 Miss. 359, 53 So. 778, it is said: “A natural channel with defined bed and banks of varying width and depth through which water is conveyed and discharged is a ‘water course, ’ and the fact that it is most of the time dry or not running is not enough to deprive it of the character of a ‘water course.’ ”

The opinion in this case was delivered by Mayes., C. J. He quotes Judge Campbell in Ferris v. Wellborn, supra, and says: “This case was cited with approval in the case of Rait v. Furrow, 74 Kan. 101, 85 Pac. 934, 6 L. R. A. (N. S.) 157. The question of what constitutes a water course has been a perplexing one for the courts, and there is a varying line of decisions on this subject. It is not our purpose to attempt any reconciliation of the authorities. Under1 every decision and under every definition, ‘ all natural drains ’ must be held to include natural water courses, as well as swales or ravines which might hot be held to be water courses. ’ ’

. In the case of Bait v.. Furrow, 74 Kan. 101, 85 Pac. '934, 0. L. E. A. (N. S.) 157, 10 Ann. Cas. 1044, quoted above by Judge Mayes with approval, it is said: “Where water runs in a well-defined channel, with bed and banks made by the force of the water, and has, a permanent source of supply, it is to be regarded as a natural water course, although the stream may be small, its course 'short, and it may have existed for only a short time.”

The second syllabus of this opinion says: “The source of supply may be springs, surface water, or a pond formed by surface water; but, whatever the source, if it has -the element of permanence, it becomes a natural water course where the water comes to-, or collects on, the surface and flows in a well-deifihed channel and bed, with such banks as will ordinarily confine the water and cause it to run in a definite direction. ’ ’

In the fourth syllabus it is said: “A stream may be a natural water course, although its outlet be over the unchanneled surface of lowland, and not into another water course.”

It will be seen -from the Mississippi cases cited, when read in connection, with the majority opinion, that the ■ law of waters in this state from the 'beginning up to now has been unsettled by the decision of this case, and that the course of decisions for the past thirty years, construing section . 17 of the state Constitution of 1890, has been put in uncertainty and confusion if they have not been destroyed. The majority opinion deals with the decisions prior to the Constitution of 1890, and those subsequent to it as. though the law was not affected or changed by the*words “or damaged,” inserted for the first time in 1890 in the Constitution óf this state.

The Harkleroads Case, 62 Miss. 807, and the Richardson Case, 68 Miss. 530, 9 So. 351, were constructions of the laws as they existed prior to 1890, when the constitutional provision simply provided that property should not be taken for public use except on due compensation being first made to the owners thereof. The announcement of those cases on the Constitution as it then was is in accord with the weight of authority wherever that provision was in a Constitution.

As shown by the case of Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638, the Illinois court, prior to 1870, held in accord with those decisions, but when the Constitution was changed by the insertion of the words “or damaged” after the word “taken” and before the words “for public use,” the law was necessarily radically changed. The majority opinion ignores this vital distinction between cases before' and after the Constitution of 1890. In the fifth amendment to the Constitution of the United States the provision pertinent to the present question reads as follows: “Nor shall private property be taken for public use without ■ just compensation” — and of course under this provision the decisions of the United States supreme court in Jackson v. United States, 230 U. S. 1, 33 Sup. Ct. 1011, 57 L. Ed. 1363; Hughes v. United States, 230 U. S. 24, 33 Sup. Ct. 1019, 57 L. Ed. 1374, 46 L. R. A. (N. S.) 624, and Cubbins v. Mississippi River Commission, 241 U. S. 351, 36 Sup. Ct. 671, 60 L. Ed. 1041, are proper and correct. But the decision of the United States supreme court in Chicago v. Taylor, supra, shows with precision Avhat the United States supreme court would hold were it construing1 a constitutional provision similar to section 17 of our Constitution..

The chancellor in his opinion well said on this subject:

“There are; two lines of authorities in the United States as to control of flood waters by levees. These two distinct lines of authorities are not in harmony, and are diametrically opposed to each other. One line of authorities holds that the party who constructs a levee • to protect his land from the overflow waters of a stream must have regard for the rights of his neighbor, and that the overflow waters are a part of the stream which cannot be obstructed without liability for the consequential damage caused by an obstruction. The other authorities are mainly from the states of California and Arkansas, and the supreme court of the United States holds in effect that flood waters are a common enemy, and that the great beneficial results achieved by leveeing against the flood waters renders injury to the other landowners damnum absque injuria.”

The majority opinion departs from the faith of the fathers in this state, and wanders after foreign gods. It ceases to worship at the altar of Mississippi precedents, and bows the knee to Baal, Asteroth, and Moloch.

Instead of giving the individual the protection intended by section 17 of the Constitution of 1890, he is forced to bear the burden alone, or with a few others situated in the same way, for public improvements, real or fancied. Numbers of imaginary benefits, as well as some real ones, are paraded before the court as a justification for the decision we are asked to make in the present case, and argument made as to the calamitous consequences to the delta section of the state that will result from adhering to the construction adopted in Vicksburg v. Herman, 72 Miss. 211, 16 So 434, with such consummate ability by the distinguished jurists who then composed the court. It seems to me that a sufficient reply to this line of argument is made by the Georgia court in O’Connell v. Railway Co., 87 Ga. 246, 13 S. E. 489, 13 L. R. A. 394 27 Am. St. Rep. 257, where Judge Lumpkin, in answering; a similar argument, said:

“It was urged in the argument that the law ought to encourage the reclaiming’ and improvement- of lands which are subject to injury from the natural action of floods and surface water; and it is surprising to find this 'argument unquestionably relied upon in many cases which are supposed to follow the common law of surface water. The error therein is easily exposed; for to the same extent as the land of an adjoining owner is damaged by the improvement on the defendant’s land, so far exactly is the development of the damaged land set back and retarded. The defendant might bring his land to perfection for his uses, and then have all that good work ruined by the first measures of improvement adopted by his less progressive neighbor. The rule contended for by the defendant would be a poor encouragement to painstaking labor engaged in reclaiming1 unprofitable land. Every one is charged with notice of nature’s, operations, but who can tell when a man will build his bulwarks against the flood? There is no public policy to allow one landowner to improve his condition at the cost of his neighbor; but the improver must, at his peril, see to it that the benefit to himself is large enough to pay both him and his neighbor’s damage, if any. The law does not look to the interest of one individual but recognizes and enforces the duties implied in his relation to others.” ■

The majority opinion quotes from the supreme court of Arkansas, McCoy v. Levee District, 95 Ark. 345, 129 S. W. 1097, 29 L. R. A. (N. S.) 396. But Arkansas is lined up with that line of authorities which refuse to give any legal meaning to the words -“or damaged”1 in| the Constitution, but construe the Constitution with this provision to mean in legal effect the same thing as the taking of property for public use.

The Texas case of Ft. Worth Improvement District v. Ft. Worth, 106 Tex. 148, 158 S. W. 164, 48 L. R. A. (N. S.) 994:, gnes exactly contrary to the Arkansas doctrine, and is in accord with the doctrine of this state for the past thirty years prior to the present announcement.

In Bradbury v. Vandalia Levee & Drainage District, 236 Ill. 36, 86 N. E. 163,19 L. R. A. (N. S.) 991, 15 Ann. Cas. 904, the Illinois court held that a drainage district which constructs a levee along a river and from the river to the highlands in such a way as to obstruct the natural flow of the flood waters of the river and cast it back on the property farther up the stream is liable for the injury thereby caused where the Constitution provides that private property shall not be taken or damaged for public use without compensation. It is further held that a drainage district cannot escape liability for injury done by its improvement to lands lying, out of its limits on the theory that it is an involuntary gw&si-public corporation, not liable to respond in damages for any of its acts, where its organization depends upon a petition of those living within its limits, and the statute provides that lands lying within the district shall be liable for any and all damages which shall be sustained by any land lying above such district by the contraction of its works.

In Tidewater Ry. Co. v. Shartzer,. 107 Va. 562, 59 S.(E. 407, 17 L. R. A. (N. S.) 1053, it was held that the word “damaged” as used in a constitutional provision, forbidding the enactment of a law whereby property shall be damaged for public use without just compensation, is not confined to acts which would give a cause of action if done by an individual. And, also, damages for diminution in

the market value of property, not taken, by smoke, noise, dust, and cinders arising from the proper, ordinary, and lawful operation of a railroad seeking a right of way, may be allowed the owner under provisions of a Constitution that the legislature shall not enact any law whereby private property shall be taken or damaged for public purposes without just compensation, and of a statute that damages shall be awarded which result from injuries to the property of any person from the construction and operation of the works. Appended to the report of this case in L. R. A. is a note on the right under constitutional provisions against damaging private property for public use without compensation, to compensation for consequential damages to property, no part of which is talien from smoke, noise, dust, etc., incident to ordinary operation of railroads. In this note there is a- divergence of authority as to the recovery of consequential and indirect damages. But as shown in Vicksburg v. Herman, 72 Miss. 211, 16 So. 434, our court aligned itself with those cases holding that consequential and remote damages as well as direct damages may be recovered. 1

In Railway v. Bloom, 71 Miss. 247, 15 So. 72, it was held that section 17, Constitution of 1890, enlarges the previous rule on the subject, in that it provides that private property cannot be taken or damaged for public use except on due compensation first being made to the owner. It was held in that case that a railroad cannot escape liability, although it acquired its right of way prior to the adontion of the Constitution of 1800.

In King v. Vicksburg Ry. & L. Co., 88 Miss. 456, 42 So. 204, 6 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 749, it was held that section 17, Constitution of 1800, forbidding the taking or damaging of private property for public use, except on due compensation being first made to the owner in a manner to be prescribed by law, while primarily applicable to eminent domain proceedings, is equally protective of the owner where his property is damaged hy a public use without condemnation. That due compensation is what will make the owner whole pecuniarily for appropriating or injuring his property by any invasion of it cognizable by the senses, or by interference with some right in relation to property whereby its market value is lessened as the direct result of the public use. And it was held that the property owner could recover damages resulting from depreciation in the value of property caused biy noise, smoke, soot, cinders, and the like, if sufficient to render its occupancy uncomfortable. 1

In A. & V. Ry. Co. v. King, 93 Miss. 379, 47 So. 857, 22 L.R.A. (N. S.) 603, it is held that, where a railroad company which to meet the demands of its increased traffic lays additional sidetracks on its right of way held under a charter authorizing it to acquire and use the same for all necessary railroad purposes, it is liable to the owner of buildings on contiguous land for.damages thereto resulting from smoke and vibrations caused by the operation of trains on such side tracks, though the companv aenuired its right of wav before such buildings were erected, and when the state Constitution forbade, riot the damaging. but only the taking, of private property for public use without just compensation. See, also, the authorities cited under section 17, Constitution of 1890', in Hemingwav’s Code, upon the subject.

In Miller & Lux v. Madera Canal & Irrigation Co., 155 Cal. 59, 99 Pac. 502. 22 L. R. A. (N. S.) 391, it 'was held that flood waters of a river which is annually swelled bevond its ordinarv banks bv climatic conditions at certain times of the year, except in unusual seasons, and which flow as the main body of the river, being confined bv the conformation of the land, although without well-defined boundaries or visible banks, are part of the natural water course, and the 'rights of a riparian owner thereto cannot be invaded or interfered with by non-riparian owners, to his injury. That a riparian owner is entitled to enjoin the diversion of flood waters of a river which annually flow over Iris land, bearing fertilizing material and irrigating it sufficiently to make it productive, whereas should the flow cease the land would become arid and greatly depreciate in value. It was also held that a riparian owner cannot be deprived of his right to the flow of the stream without compensation because its use by others will be more beneficial to the state.

In Town of Jefferson v. Hicks, 23 Okl. 684,102. Pac. 79, 24 L. R. A. (N. S.) 214, it was held that the owner of lands situated upon a watercourse may construct an embankment thereon to protect his land from the superabundant water in times of flood; but in doing so he must so place the embankment that the natural and probable consequences of the embankment in times of ordinary floods will not be to cause the overflow to erode, destroy, or injure the lands of other proprietors upon the water course. It is also said in that opinion that an ‘ ‘ ordinary flood” is one which, by the exercise of ordinary care and diligence in investigating the character and habits of the watercourse, migiit have been anticipated. It is also held that overflow waters' that continue in a general course, although without defined banks, -back into the watercourse from which they started or into another watercourse, do not become “surface waters,” but remain a part of the watercourse. It is also held that an injunction would lie in equity to restrain the landowners on one side of a stream from maintaining a levee upon the bank thereof, whereby the flood waters of the stream are made to overflow unnaturally the land of others on the opposite side of the stream, without regard to the ability of the landowners who constructed 'the embank ment to respond in damages. There is also a case note to this case in the L. R. A. report.

In Walters v. Marshalltown, 145 Iowa, 457, 120 N. W. 1046, 26 L. R. A. (N. S.) 199, it was held that to render one liable for casting the flood waters of a river onto other riparian property by the erection of an embankment upon' his own the amount of water upon the other property mtíst be unduly as well as materially increased. In the case note to this case the editor in the L. E. A. series said:

“As was said in the note to Jefferson v. Hicks, 24 L. R. A. (N. S.) 214, it is undoubtedly the general rule that a riparian proprietor has no right to erect a levee or artificial bank along the margin of a stream, which will cause superabundant water, in time of ordinary floods, to flow upon or injure the lands of the opposite or other riparian proprietors.”

See, also, the case note to Avery v. Vermont Electric Co., 59 L. R. A. 876, under heading “Effect of Flood. Ordinary Freshets.” See, also, Keck v. Venghause, 127 Iowa, 529, 103 N. W. 773, 4 Ann. Cas. 716.

Independent of the obstruction of natural watercourses by the levee in question, I think the appellants had no right to obstruct and divert the overflow water from Coldwater river in the manner shown by the' facts in this case. See Burwell v. Hobson, 12 Grat. (Va.) 322, 65 Am. Dec. 247; Uhl v. Railroad, 56 W. Va. 494, 49 S. E. 378, 68 L. R. A. 138, 107 Am. St. Rep. 968, 3 Ann. Cas. 201; Cairo R. R. Co. v. Breevort (C. C.), 62 Fed. 129, 25 L. R. A,. 527; Fordham v. Railroad, 30 Mont. 421, 76 Pac. 1040, 66 L. R. A. 556, 104 Am. St. Rep. 729; Crawford v. Rambo, 44 Ohio St. 282, 7 N. E. 429; Wine v. Railroad, 48 Mont. 200, 136 Pac. 387, 49 L. R. A. (N. S.) 711, Ann. Cas. 1915D, 1102; West v. Taylor, 16 Or. 165, 13 Pac. 665; Wallace v. Drew, 59 Barb. (N. Y.) 413; C., B. & Q. R. R. Co. v. Emmert, 53 Neb. 237, 73 N. W. 540, 68 Am. St. Rep. 602; Clark v. Patapsco, 144 N. C. 64, 56 S. E. 858, 119 Am. St. Rep. 931.

I regret to have been compelled to use language which appeal's rather strong in this dissent, and my dissent is in no sense the complaining of a disgruntled judge, but is to he considered as a distress signal thrown out to the bar for help in preserving to the citizens of the state the protection of the Bill of Bights as understood by the constitutional convention and as interpreted by our distinguished predecessors. I cannot help feeling that the bar will be unable to advise a citizen as to his right in future cases,, and the citizen is cast upon a troubled sea, with neither compass, rudder, nor polestar. In despair he may well exclaim:

“ Alas for him who on the law’s troubled deep Floats idly, the sport of the tempestuous tide, With no port to shield him, and no star to guide.”

Cook, J., concurs in this dissent.