McLemore v. Yocona Tallahatchie Drainage Dist. No. 1

91 So. 390 | Miss. | 1922

Holden, J.,

delivered the opinion of the court.

This suit involves the question of the validity of the extension of the Yocona Tallahatchie drainage district No. 1, appellee, by the addition thereto of adjoining or adjacent lands as authorized by chapter 281, Laws of 1920, which provides for the extension of the boundaries of drainage districts organized under the provisions of chapter 243, Laws of 1916, chapter 269, Laws of 1914, and chapter 195, Laws of 1912, so as to embrace adjoining and adjacent lands in such drainage districts. The appeal particularly brings before us for consideration and construction section 1 of said chapter 281, Laws of 1920, which will be hereinafter set out.

The appellee, Yocona Tallahatchie drainage district No. 1, embracing about thirty-four thousand acres of land, was established and organized by a decree of the chancery court of Panola county, in April, 1917, under the provisions of chapter 195, Laws of 1912, and subsequent amendments thereto. No improvements were planned or made in the district and nothing was attempted to be done until August, 1920, when a petition was filed by the owners of adjoining and adjacent lands praying the chancery court that their lands, comprising about four hundred and ninety-three thousand acres, be added or annexed to the appellee drainage district, as authorized and provided by said chapter 281, Laws of 1920. It appears that the petition was signed by a requisite number of landowners in the new territory to be added to the appellee district; the petition seems to have been signed also by the landowners embraced in the old district.

Upon the filing of the petition in the chancery court, the lands being in several counties, notice was published as required by the act, and, on a hearing of the cause before the chancellor, it ivas adjudged and decreed, over the protest of appellants, that the petition be granted and the lands in the new territory be added to the appellee drainage district. From which decree, extending the boundaries of the appel-lee district so as to embrace the lands of petitioners, this appeal is prosecuted.

The proposed extension of the boundaries of the appellee drainage district, so as to embrace the lands named in the petition, involves, in our opinion, a gigantic project, comparatively speaking, which should receive most serious consideration by us as a pertinent fact, and by all others concerned ; for its purpose, if carried out, may result in great good or total disaster to the landowners comprising the district.

The proposal, in substance, is that a floodway be constructed and established extending from the appellee, original district, in a southerly direction for a distance of about fifty-five miles, the width being about one mile, a levee seventeen feet high on one side, with the hills upon the other, which artificial river or drainage basin would, it is calculated, carry the flood waters of the Tallahatchie and other rivers and streams confluent and moving farther south to a point a few miles north of the city of Greenwood, the object being to control the flood waters by a gate system, channels, silt basins, etc., so as to drain and protect the adjacent lands from overflow. The plan purposes a canal and other means best understood by the engineers in charge of the survey, all of which was included in the method to protect the lands against overflows and to do-liver the overflow waters to the rivers at the south end of the district, without damage to landowners outside and below the district.

It appears from the record the cost of the project will be so large as to necessitate a tax of at least eighteen dollars per acre on the lands in the district, or, as approximately estimated, a total of more than nine million dollars, the payment of which, of course, would he secured by a lien upon the lands involved. This record reflects to our minds., that the cost of construction would ultimately be much greater than the estimate mentioned, and the subsequent maintenance, together with the interest upon the bonds necessary to be given to pay for the construction, avouIc! impress a considerable charge against the landowners.

Of course, we are not concerned alone with the question of the cost to the landowner, but the law authorizing the extension of a district provides that such “proposed improvements must be to the public benefit and to the interest of the land and the owners thereof;” and the question of cost also concerns us somewhat with reference to the initiation of the project embracing so many “adjacent” landowners at such a great distance from the original district to which they are to be added. However, we shall go. no further into this feature of the case, because the decision we have reached will rest solely upon another ground.

The appellant landowners in the added territory appeared and objected to the annexation of their lands to the appellee drainage district. There were also a large number of landowners in the proposed added territory that made no objection, nor did-they consent to the addition of their lands. ' It was argued below and here that the proposed channel or drainage basin would destroy the value of considerable land together with improvements thereon, even some villages, and a diversion of the flood waters would result in damages to owners outside of the district at the lower end. These are questions of policy that only concern those connected with the proposed drainage scheme.

Tbe appellants present many serious questions for reversal of the decree of the lower court. But we shall consider and determine but one, which will result in a reversal, and, since the other questions may never arise again, it is unnecessary to pass upon them at this time.

A construction of section 1 of chapter 281, Laws of 1920, with regard to the meaning of the act wherein it provides that “when ten per cent, of the landowners owning lands adjoining or adjacent to any existing drainage district,” etc., will be decisive of this appeal. Said act provides as follows:

“'Drainage Districts — Enlargement of Boundaries to Embrace Adjacent Lands. Hemingway’s- Code, sections 4484, 4485.

Section 1. Be it enacted by the legislature of the state of Mississippi, when ten per cent, of the landowners owning lands adjoining or adjacent to any existing drainage district organized under the provisions of chapter 195, of the Laws of 1912 and amendments thereof shall petition the board of supervisors to extend the boundaries of any such existing district, describing generally the region which it is intended shall be embraced within the boundaries of such drainage district as extended, it shall be the duty of the board of supervisors to enter an order upon its minutes directing the commissioners of such drainage district to forthwith proceed to cause a survey to be made, and to ascertain'the limits of the region which would be benefited by the proposed system of improvements, and giving a general idea of its character, and the cost of the drainage and other improvements necessary. . . .

It is contended by appellants that the act does not authorize the annexation of the lands in the new territory, because they are not (adjacent lands.

The éxact problem presented for our solution is this: What was the intention of the legislature in the use of the words “adjoining or adjacent” landowners? In* other words: What did the lawmakers mean or in what sense did they intend to use these words in the act? We have no trouble in understanding the act in “authorizing the addition of “adjoining” lands, but the difficulty comes in determining what is meant by “adjacent” lands. Does the act mean that lands lying as far away as fifty miles from the original district are adjacent lands and may bé added to the old district, or was it in the legislative mind to authorize the addition only of those lands lying close to or near by the original district?

We have carefully reviewed all the authorities within our command on this question, and, while the meaning of the word “adjacent” as commonly used varies to some extent according to the context or the relative way in which it is used in connection with the subject-matter, nevertheless we are thoroughly convinced, that its use in the connection here presented does not mean that lands lying fifty miles away from the small original drainage district are adjacent lands. The best definition of “adjacent” that we can get from any source is, lying near by or lying close at hand, near, adjoining, or contiguous. Adjoining lands are adjacent, and lands not joining but “lying close by” are adjacent. Therefore it is clear to us the majority of the lands proposed to be added in this case are not adjoining or adjacent as meant by the act authorizing annexation to the old district.

The question will naturally occur: Where is the dividing line between adjacent, and nonadjaeent lands in such cases? We do not Drink we are called upon to decide this question, because in this case the lands embraced in. the southern part of the territory proposed to be added are so far away from the old district there can be no doubt that they are not adjacent to the district.

We feel reasonably sure the legislature never intended that so large a territory should be added to such a small drainage district; but the purpose of the act was to permit the addition of lands to be benefited lying close by the old district. We think there are many reasons that could be given why the legislature had this limitation in mind, but it is unnecessary to do so. The very fact, as appears in this case, that the petition seeks to add four hundred and ninety-three thousand acres to a district embracing only thirty-four thousand acres indicates at once an unusual situation, and would be to make “the tail wag the dog” as suggested in the argument of the case. It rvould, in effect, be to create a new district under the old name.

Buch a situation is not impossible, however, and under some circumstances it would probably be permissible for a larger territory to be added to a smaller one, but the conditions, and the legislative intent governing the case at bar, are contrary to this idea. Counsel for the appellee, in their argument, attempt to uphold their view by illustrating with the case of the United States, when composed of the small territory of the Atlantic states, annexing the great-western territory which was larger than the territory to which it was added. It is true this was done, but the old territory, while smaller in area, was vastly greater in population, wealth, and in many other respects than the western territory added. Besides this, there is lack of analogy because there was no question of adjacency involved in that case.

In the case at bar the effort is made to add territory fifteen times the size of the old district, and apparently that much greater in importance than the old district. The act of the legislature did not contemplate the extension of drainage districts to such a vast extent and of such grave importance, as that attempted in the case before us. Therefore, the decree of the chancellor is erroneous and must be reversed, and the cause dismissed.

Below we cite and quote from authorities supporting the views we entertain on the question of what is meant by “adjacent.”

“The word 'adjacent’ is defined by Webster and other lexicographers to mean 'to lie near;’ 'close or contiguous.’ It is sometimes said to be synonymous with 'adjoining,’ 'near,’ 'contiguous.’ In some decisions courts have held it to mean ‘in the neighborhood or vicinity of;’ in others ‘adjoining or contiguous to.’ People v. Keechler, 194 Ill. 235, 62 N. E. 525, 527. The word 'adjacent,' even in its strictest sense, means no more than lying near, close, or contiguous, but not actually touching. There are degrees of nearness, and, when you want to express the idea that a thing is immediately adjacent, you have to say so. Hanifen v. Armitage (U. S.), 117 Fed. 845, 851.” Words and Phrases, First Series, vol. 1, p. 184.

"The word 'adjacent’ means contiguous, adjoining, lying close at hand, near. The expression 'adjacent’ does not at all times mean abutting, but it is usually synonymous with abutting, adjoining, and bordering. In re Bridge Bonds, Ratliff Tp., Johnston County, 35 Okl. 192, 128 Pac. 681, 682 (citing Wormley v. Board of Sup’rs of Wright County, 108 Iowa, 232, 78 N.W. 824); State v. Angus, 83. Conn. 137, 75 Atl. 623, 624, It is not essential that property, to be adjacent to a river, should be in actual contact therewith. A thing is 'adjacent’ to another when it lies near or close to it, although it is not in actual contact therewith. Yuba County v. Kate Hayes Mining Co., 141 Cal. 360, 74 Pac. 1049, 1050.”

The decree of the lower court is reversed, and the cause dismissed.

Reversed and dismissed.