Meriwether v. Board of Directors of St. Francis Levee District

165 F. 317 | 8th Cir. | 1908

AMIDON, District Judge

(after stating the facts as above). The appellant contends that the obstruction of Fletcher bayou, and the consequent accumulation of water upon his land, constitutes a nuisance which he is entitled to have abated. This takes account only oí his injury, and overlooks the powers of the defendant in carrying out an important public improvement. If the obstruction of Fletcher bayou is reasonably necessary in building the levee, then the taking or injury of plaintiff’s property is not a nuisance, but falls within the powér of eminent domain, and constitutes simply an appropriation of private property to a public use. For his damages the plaintiff would be entitled to compensation, but would not be entitled to an abatement or impairment of a great public improvement in order to conserve his private property. It would be wholly impracticable to leave openings in the levee for all the bayous and estuaries leading into the Mississippi river along its line. To determine when the benefits of a continuous levee would exceed the damage to private property from damming up such water courses was one of the subjects committed to the sound discretion of the defendant board. The plaintiff, therefore, is not entitled to the equitable relief which he asks if the obstruction of Fletcher bayou was reasonably necessary in building the levee. The term “necessary” in this connection should not he construed to mean “indispensable,” but should be held to cover what is appropriate and convenient in carrying on the public improvement. Detroit Park Commissioners v. Moesta, 91 Mich. 149, 51 N. W. 903; N. J. Railroad Co. v. Hancock, 35 N. J. Raw, 537. Municipal authorities under such circumstances must be vested with a wide discretion in the choice of means and methods. If they act in good faith and upon reasonable grounds, tlieir judgment cannot be set aside by the courts, even though some better way he pointed out. The bill in this case alleges that the damming of Fletcher bayou was “wholly unnecessary.” This, however, is simply to place the plaintiff’s judgment over against the judgment of the defendant. No specific, facts arc alleged showing that the obstruction is unnecessary. Until such a showing is made, the court is bound by the presumption that the defendant has exercised a sound and honest discretion. The complainant asks the unusual remedy of a mandatory injunction. To justify the courts in awarding that remedy, his hill should contain a full and specific statement of facts from which it would appear cither that the defendant had acted wantonly, or that there was no reasonable necessity for the doing of the acts complained of. The bill fails to make any such showing.

The Constitution and statutes of Arkansas require that full compensation be made for property taken or damaged for a public use. Section 2734 of Sanders & Hill’s Digest of Arkansas Statutes further enacts that “whenever any corporation authorized by law to appropriate private property for its use, shall have entered upon and appropriated any property, real or personal, the owner of such property shall have the right to bring an action against such corporation in the circuit court of the comity in which such property is situated, for damages for such appropriation”; and the measure of recovery is declared by the following section to he the same as that governing proceedings by corporations for the condemnation of property. The general statute of the state dealing with the subject of levees (section 4705) requires the jury to assess and award all damages that are sustained by reason of the levee.

On the showing made by the bill, these statutes furnish the plaintiff a full and complete remedy for his injuries. If his land has been overflowed or injured as a direct result of the building of the levee, that amounts to a “taking” or “injuring” within the meaning of the constitutional provision which protects private property from public use without compensation; and at common law, as well as under the express provision of the statute just quoted, the plaintiff could maintain an action for his damages though no direct proceeding had been taken to condemn the land by eminent domain. United States v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539; Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557; Springfield, etc., R. R. Co. v. Rhea, 44 Ark. 258. Where such a remedy exists, it is adequate and exclusive. Ex parte Martin, 13 Ark. 198, 58 Am. Dec. 321. This is an instructive case, involving substantially the same questions as those presented by this appeal. The opinion contains a clear explanation by a court, familiar with the local situation, of the necessity of obstructing water courses in building effective levees, and the need of granting a wide discretion on that subject to boards having charge of such improvements. At that, time neither the Constitution nor statutes of Arkansas provided for compensation for property thus taken or injured, and for that reason the plaintiff prevailed; but the court plainly declares that if the right to compensation had been secured, no equitable relief would have been granted. “If the acts of assembly for reclaiming the swamp lands provided for compensation to those whose property might be injured or taken for public use by the levees or drains contemplated by those acts, the parties now seeking relief could not be heard except to complain in respect of the due and just administration of the law awarding compensation.” 13 Ark. 211, 58 Am. Dec. 321.

The bill leaves us in doubt whether the complainant asked that an opening be made in the levee, or an independent system of drainage constructed. If the latter was the relief sought, the court had no power to command such affirmative action by the defendant. Vicksburg v. Vicksburg Waterworks Co., 202 U. S. 453, 471, 26 Sup. Ct. 660, 50 L. Ed. 1102.

The bill avers that after full investigation the board of directors refused to adopt either of these suggested courses, but alleges no facts which impugn the wisdom or honesty of their judgment. The trial court was therefore right in holding that upon the face of the bill an action at law to recover damages for property taken or injured would be a complete redress of his wrongs. If, when he has established his right at law, it shall appear upon a full disclosure of the facts that equitable relief is necessary to afford him complete redress, he can then appfy to equit)'- upon a proper showing. We think, however, that the right of the complainant to resort not only to law but to equity, if need be, after he has established his right at law, should have been left entirely plain by the decree of the court below; and, in order to remove all possible doubt on that subject, the decree of the court below will be modified so as to read that the bill be dismissed for want of equity, but without prejudice to further proceedings. As so modified, the decree is affirmed, with costs in favor of the appellee.