Richardson v. Board of Levee Commissioners

68 Miss. 539 | Miss. | 1891

Campbell, J.,

delivered the opinion of the court.

The points presented in this case are too numerous to make it desirable to discuss them seriatim, and since they may all be resolved by the application of a few principles applicable, we content ourselves with a statement of these principles, whereby to test the result reached.

The land-owner is not entitled to damages, because of a failure to so place levees as to protect his land from the water of the Mississippi, or because the levee may prevent such water from flowing off'as it otherwise Avould, and may deepen the water in an overflow on the land between the embankment and the river. These are consequences of the situation and the authorized effort to promote the general good by the construction of levées, and must be borne, because they are unavoidable in the nature of things. The legislative scheme is to protect against water from the Mississippi river, by an embankment sufficient for the purpose, and it is to be put where the board entrusted with the execution of the scheme may determine, and the land-owner must submit to any inconvenience or disadvantage or loss resulting to him, consequentially, as his misfortune to be borne for the general good to which individual convenience must be subordinated, except where it is otherwise provided. Commissioners v. Harkleroads, 62 Miss. 807. The constitution guarantees due compensation to the owner for property taken for public use, and in observance of this guaranty the act under which this condemnation was made declares that the “ cash value of the land or material occupied or used .... for the right of way of said levee or for other purposes, and also the damages caused to the owner’s adjacent property, by reason of the use of his land or other property for right of way for said levee or for other levee purposes,” shall be the measure of due compensation to him. The only place for interpretation is as to what damages are caused to the owner’s adjacent property by reason of the use of part of his land for levee purposes, within the contemplation of the act. That damage caused by the success of the scheme in confining the water of the river is excluded, seems clear and has already been announced. That all other damage which is not remote, and arises directly from the taking of part for levee purposes, resulting to the owner’s adjacent land immediately from the • constructing of the levee, is to be compensated for, seems as clear, as the denial of damage by the river. This is consonant with natural justice, and it may be assumed that it was the legislative purpose to secure to the owner whose land is taken for a levee indemnity for all damage done him as to the adjacent land he owns not arising from the accomplishment of the object of the levee, and directly produced by depriving him of so much of his land as is taken from him, and converting it into such a shape as to do harm to his adjacent land.

We are not willing to declare a rule more precise than this, for, while there may be a general resemblance in all cases of land near the river, there must be individual differences, and each case must be governed by its own peculiar circumstances subject to the general rules announced.

After careful consideration of all the rulings of the court upon questions of evidence, and its action in giving and refusing instructions, our conclusion is that the appellants got the benefit of every rule they were entitled to invoke for the guidance of the jury in assessing damages, and that the finding of the jury should not be disturbed. The verdict made of the items suggested by counsel for the appellants shows a determination to allow for all the land actually taken at the rate of $50 per acre, the full value of the growing crops on it ($639.00), five hundred dollars for damage to drainage inside (the protected side) of the levee, and $786.00 for damage to drainage outside the levee. In all this there is nothing of which the appellants can justly complain. They were denied nothing to which they could legally lay claim. According'to their own testimony, their land between the levee and the river was rendered practically worthless for agricultural purposes, and for this they sought to recover damages. The removal of the houses to the protected side of the levee was rendered necessary by the annual overflow expected, and nothing was recoverable for that consequential injury.

The effort of the appellants to have applied the test of the value of the tract of land before and after the taking for levee purposes was properly defeated because of its manifest inapplicability. Evidence of the successful cultivation of portions of land between the levee and the river at various places was rightly excluded, if on no other ground, because it was shown by the witness Pepper, and perhaps others, and made the ground of a' claim for damages, that this particular land was rendered valueless for agricultural purposes, and whatever might be true of other lands as to cultivation between the levee and river had no relevancy to this.

The third instruction asked by the appellants might properly have been given as asked, and as modified by the court is subject to verbal criticism, but when considered as to the thought expressed by it, and in connection with the other instructions, no harm was done by the modification.

The value of the land adjacent to the river deprived of levee protection, as compared with its value when protected, was a legitimate subject of inquiry, and no error was committed in overruling the objection of appellants to the cross-interrogatory as to that propounded to the witness Hays. Every inquiry which will enable the jury to determine the damage done to the owner’s adjacent land, within the principles announced in this opinion, is proper in a case like this.

Affirmed.