71 So. 380 | Miss. | 1916
delivered the opinion of the court.
This action was instituted by board of supervisors of Bolivar county against the appellant drainage district
The defendant pleaded the general issue and two special pleas. The first special plea averred that the board of supervisors agreed with the drainage commissioners that, if they would not assess the public roads of the county, the board of supervisors would remove and replace all bridges on the ■ public roads where the canals crossed the roads. The second special plea averred that the bridges mentioned in the declaration were built across natural water courses; and that defendant was not liable for the costs of replacing the same. Demurrers were filed to the two special pleas, and were sustained by the court.
At the trial it was agreed in an agreed statement of facts that the bridges were built at the expense of the board of supervisors; that they were built prior to January 1, 1912; that all of the bridges were built on public roads and across natural water courses, that is, where the public roads cross natural water courses which were being dredged by the drainage commissioners for the two drainage districts; that all of the bridges were on public roads of the county.
Appellant insists that the court erred in sustaining the demurrer to the second plea. This contention is based upon the fact that prior to January, 1912, the drainage commissioners organized under chapter 39, Code 1912, had no authority to do any work on natural water courses, citing Ex parte Drainage Commissioners of Leflore County, 100 Miss. 821, 57 So. 223.
We think section 13, ch. 196, Laws 1912, validated the work theretofore done on natural water courses, and the expenditures made in furtherance of such work. But it is said that the same law that validated work on water courses also imposed upon the counties the duty to replace bridges at the expense of the county. We believe
' As to the first special plea, we think the court below was right in sustaining’ the demurrer to same. It is. very doubtful whether the board of supervisors were authorized to enter into the agreement set up in the plea,, even had the agreement been spread at large upon the minutes of the boards. But it is not contended that th& contract was made by an order upon the minutes, and,, if it was not, it was as ineffectual as if it had never been entered into. The so-called contract has no legal existence. But it is stated in the brief for appellant that the real and important question for this court’s decision is this:
“Independent of this position, the real question which it is important to decide is this: Does a public highway or a railroad acquire such an easement over a natural water course by condemnation or otherwise, that is superior to the natural easement of the adjacent land-owners and the public, or is the right acquired by the easement of the public highway or the railroad subject to the superior right or rights of the riparian landowner in the natural water course to use it for drainage purposes, for which nature created it?”
As we view this question, we may hold with appellant that the right of the riparian landowner is superior to that of the county to construct bridges across natural water courses, and yet this would not dispose of the real question presented by this record.
It is true, in a sense, the drainage commissioners represent the riparian owners. In other words, the riparian owners have, by authority of law, pooled interests by organizing themselves into a drainage district — a municipal corporation. It is only by authority of the legisla
Of course, the legislature could have refused to provide for drainage districts at all, and it follows that it could authorize the forming of such districts upon such terms as to it seemed best.
Affirmed.
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