Richardson v. Board of Levee Commissioners
Richardson v. Board of Levee Commissioners
Opinion of the Court
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
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.
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
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.
Reference
- Full Case Name
- Richardson & May v. Board of Levee Commissioners
- Cited By
- 17 cases
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- Syllabus
- 1.Eminent Domain. Condemnation for levees. Measure of compensation. In the absence of a statute so providing, the owner of lands near the Mississippi river is not entitled to damages because of a failure by the levee board to so place levees as to protect the same from overflow, or because the levee prevents the river water from flowing off as it otherwise would, or because it deepens the water on his land between the river and the levee during an overflow, and thus renders it worthless for agriculture. These are unavoidable consequences of the situation, and of the authorized effort to promote the general good by the confinement of the waters of the river. Commissioners v. Harlcleroads, 62 Miss. 807. 2. Same. Removal of houses to the protected side. For the same reason the land-owner cannot recover for expenses incurred in removing houses from the exposed to the protected side of the levee, made necessary by expected future overflows. 3. Constitutional Law. Act of 1884. Eminent domain. Due compensation. Under the act of March 13, 1884 (Laws, p. 163), conferring the right of eminent domain upon the board of levee commissioners for Bolivar, Washington, and Issaquena counties, one whose land is taken by it for levee purposes is entitled to be paid “ 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.” This meets the constitutional guaranty of due compensation for private property taken for public use, and is the measure of damages allowed to such owner. 4. Same. Measure of damages. Test; when improper. The difference in the value of the entire tract of land before and after taking a part thereof for levee purposes, is an improper test in determining the damages caused to the owner from the construction of the levee. 5. Same. Injury to land left unprotected. Evidence. Relevancy. Evidence of the successful cultivation of other tracts of land lying between the levee and the river was in this case rightfully excluded, if for no other reason, because of irrelevancy, since it was claimed by the owner, and shown by the evidence, that the tract here thrown out was rendered valueless for agricultural purposes. 6. Condemnation eor Levee Purposes. Damages under act of 1884. What allowed. While the statute does not allow damages which result from the accomplishment of the purpose of the levee, namely, the confinement of the water of tlie river, it does allow, in addition to the cash value'Of the land and property occupied or used, all other damages to the owner’s adjacent lands on either side of the levee, directly caused by the taking of part of his land and from the construction of the levee. V. Same. Damage to adjacent lands. Drainage. The expense of drainage for the land on either side of the new levee, made necessary to protect it from overflow or sipage of rain water, should be allowed, but not the expense of draining the overflow and sipage water coming from the river. 8. Same. Evidence. Value of lands when unprotected. Act 1884. Under said statute of 1884, evidence of the diminished value of the owner’s lands adjacent to the river, when wholly unprotected by any public levee, as compared with their value when protected, is competent, as enabling the jury to better determine what damage was done to such lands by the building of the new levee.