Richardson v. Board of Mississippi Levee Commissioners

77 Miss. 518 | Miss. | 1899

Whxteiei.1), J.,

delivered the opinion of the court.

The very same section of the constitution of 1890 (sec. 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 sec. 17 embrace all damages, direct or consequential, immediate or remote. The measure of the right seciired 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, sec. 17 declares, is to be prescribed by law. The framers of the constitution, embracing the very ablest legal talent in this state, then proceeded, as to levee boards, to prescribe the remedy, in sec. 233. 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. Without going into an elaborate analysis of the act of 1884 (Laws 1884, p. 163, et seq.), it is sufficient to say that the language of sec. 233 of the constitution of 1890 is essentially broader than the provisions of said act, whose machinery it designates and adopts for the purpose of securing as well the new right as the old. Said sec. 233 provides that “when any owner of land, or other person interested therein, shall object to the location or building of the levee thereon, or shall claim compensation for any land that may be taken, or for any damages he may sustain in consequence thereof, . . . the owner of such land, or other person interested therein, may forthwith apply for an assessment of the damages to which said person claiming the same,” etc. There is nothing in this language, properly construed, limiting the claim for damages caused by the taking of land to the case of one whose own land is taken. One who neither owns land, nor is interested in land, cannot be damaged by the taking of “any land” — his own or another’s. But if one either owns land or is interested in land, he can have his damages assessed for the taking of “any land,” his own or another’s, if such taking for levee purposes canses damage to his property. The language is very concise, but is exactly equivalent to saying: “When any owner of land, or other person interested in any land, shall object to the location or building of the levee thereon, or shall claim compensation for any land that may be taken, or for any damages he may sustain in consequence of the taking of any land” for levee purposes, etc. “In consequence thereof,” says the section. “In consequence” of what? Manifestly, as just before stated, of the taking of “any land.” And if it be said that the character of person who shall “object” or “claim” is defined in the previous part of the sentence, the answer is that the phrase “any other person interested therein” does not necessarily mean interested in the land of the owner whose land is physically taken, but may well mean any person interested “in land.” Indeed, the word “therein,” in the connection in which it stands —having in mind also the latter clause of the sentence before referred to — -seems naturally to mean “and” merely, “any land,” as said later in the sentence. If the language is susceptible, possibly, in the strictest literal view, looked at phrase by phrase, of the narrow technical construction contended for by counsel for appellee, it is nevertheless clear that it is also susceptible of the- broader and more conservative construction which we place upon it, which construction but secures the plain purpose of secs. 17 and 233 to provide for both rights, and a common remedy for both. Undoubtedly the framers of the constitution intended to provide a remedy as well for property damaged but not taken, as for property taken. Could they have meant to declare in sec. 17 that both rights should exists that due compensation was to be first made in both cases, and then to provide in sec. 233 a remedy for one and not the other ? Can we impute to them the folly of dealing at large with the whole subject of levees, minutely, in art. 11, with a view to equipping, this board with ample, adequate power in the premises to secure both rights, of equal dignity, and providing for one only? Why have one remedy pointed out in sec. 233, and leave another to be framed by the legislature? Since private property cannot be damaged till compensation has first been made, the need for providing a remedy for one right at the same time a remedy for the other was provided is obviously exigent, since, otherwise, the whole system of levee construction is paralyzed, and the very object of the constitution thwarted. That cannot be a sound construction which involves such manifest absurdities, if there be another reasonably possible. And we are of the opinion not only that the one we adopt is reasonably possible, but is clearly the sounder construction, whether looking to the letter or the spirit of the instrument. The act of 1884 is merely designated as the mode of procedure, its machinery to be now adapted to the assessment as well of damages to property not taken as of the value of property taken.

There is great force in another view presented in the very ingenious and able argument of counsel for appellant, to wit: That the easement — the right to have the waters of Black bayou flow unobstructed in their accustomed channel — is property within the meaning of the constitution of 1869 even, just as clearly as the easement of the abutting owners on the streets, in Theobold v. Ry. Co., 66 Mass., 279, and in Stowers v. The Postal Tel. Co., in 68 Miss., 559, in those streets „was, both of said cases having been decided under the constitution of 1869, but such easement was private property as effectually taken here, by the total destruction of the land on which the water was backed and ponded, within the meaning of this word “taken” as settled by judicial construction, as was the land on which the levee was located; and that, under that view, the remedy provided by the said act of 1884 was appropriate without reference to the constitution of 1890, and we are not to be understood as saying that this is not a sound view. But we prefer to rest the-decision on the ground first indicated. It only remains to be said that the Georgia ease cited by counsel for appellee went upon estoppel; the Illinois cases were decided under a constitution not having the word first in it;, the Louisiana case we are not able to approve, under our view that all damages are embraced within the protection of sec. 17.

It may well be said that the question is one of difficult solution, and the learned counsel for the levee board were quite right in insisting upon an authoritative announcement from this court.

It follows that the demurrer to the plea to the jurisdiction should have been overruled.

Judgment reversed and case remanded to be proceeded in in accordance with this opinion..