| Miss. | Mar 15, 1909
delivered the opinion of the court.
In this suit, instituted by a property owner against the city to recover damages caused -by thé digging of a ditch near the property, by which ready and convenient access is denied, it was conclusively shown that the ditch was dug much more than ten years before the suit was instituted, and that continuously from the time of its construction it was used by the city to carry off the water falling upon certain area of the city. This being conceded, we think the circuit court held correctly that the city has obtained the right by prescription to maintain the ditch as originally constructed. We cannot give to the case of Levee Commissioners v. Dancy, 65 Miss. 335" court="Miss." date_filed="1887-10-15" href="https://app.midpage.ai/document/board-of-levee-commissioners-v-dancy-7986597?utm_source=webapp" opinion_id="7986597">65 Miss. 335, 3 South. 568, the construction contended for; that is to say, that section 17 of the Constitution of 1890 makes it impossible for an individual to lose, by lapse of time, his right to claim compensation for property taken or damaged for public use. That case distinctly recognizes and emphatically states that private property may be ob
But there was some evidence in this case which showed that shortly before the suit was instituted this ditch had been enlarged by the city, and that in comparatively recent times there had been a substantial increase in the volume of water made to flow through this channel, by reason of which the ditch was increased in size, SO' that the value- of adjacent property was there by additionally impaired. It is clear that, because the city had secured by prescription the right to run a certain amount of water through a ditch of given dimensions, it does not thereby secure the right to- enlarge this ditch either by actual excavation or through the medium of a largely increased flow of water. This view finds support in the case of Mississippi Mills v. Smith, 69 Miss. 299" court="Miss." date_filed="1891-10-15" href="https://app.midpage.ai/document/mississippi-mills-co-v-smith-7987128?utm_source=webapp" opinion_id="7987128">69 Miss. 299, 11 South. 26, 30 Am. St. Rep. 546, where it is said: “The courts hold that the right secured by prescription is limited by the character and extent of that exercised during the period of prescription, and that for any increase causing material injury an action can be brought.” This view, we feel sure, is without dissent in the authorities. It will not do to say that no substantial damages have been shown, due to the enlargment of the ditch. The record contradicts this assertion, and it was peculiarly for the jury to say what extent the damages proven are attributable to such increase.
The peremptory instruction for the city should not have been given, and for the error in doing so the judgment is reversed and cause remanded.