Richardson v. Board of Mississippi Levee Commissioners
Richardson v. Board of Mississippi Levee Commissioners
Opinion of the Court
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
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 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..
Reference
- Full Case Name
- William P. Richardson v. Board of Mississippi Levee Commissioners
- Cited By
- 7 cases
- Status
- Published
- Syllabus
- Laws. Damage to property. Assessment. Constitutional law. Constitution 1890, sees. 17, 233. Laws 1865, p. 51. Laws 1884, p. 163. By section 17, constitution of 1890, it is provided as follows: “Private property shall not be taken or damaged for public use except upoQ. due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law;” and by section 233 of same instrument it is provided as follows: “The levee boards shall have, and are hereby granted, authority and full power to appropriate private property in their respective districts for the purpose of constructing, maintaining and repairing levees therein, and when any landowner or other person interested therein shall object to the location or building of a levee thereon, or shall claim compensation for any land that may be taken, or for any damages he may sustain in consequence thereof, the president, or other officer -or agent of such levee board or owner of such land, or any other person interested therein, may forthwith apply for an assessment of damages to which such person claiming same may be entitled, whereupon the proceeding as now provided by law shall be' taken.” Held, that the owner of land damaged.by the taking of the land of another, is entitled, under the foregoing constitutional provisions, to maintain the proceeding for the assessment of his damages provided for by the act of 1884 (Laws, p. 163), amendatory of the act of 1865 (Laws, p. 51), and that the “commissioners to assess levee damages,” provided for by said first mentioned act, have jurisdiction to hear and determine his claim. Vicksburg v. Herman, 72 Miss., 211, cited.