Covington v. Cassidy Bayou Drainage Dist.

Anderson, J., delivered the opinion of the court. Appellants filed the hill in this ease in the chancery court of Quitman county against appellee, a drainage district organized under chapter 195, Laws of 1912, as amended hy chapter 269, Laws of 1914, asking for a mandatory injunction requiring appellee to remove a dam' theretofore constructed hy it across Cassidy Bayou, southwest of Belen, at a point where Moore’s Bayou and Cassidy Bayou come together. There was a trial on bill, answer, and proofs, resulting in a final decree denying* the appellant’s the relief prayed for. F'rom that decree appellants prosecute this appeal. The construction of the dam in question was a part of a scheme of appellee to reclaim and make fit for cultivation the swamp and overflowed lands of the drainage district. The appellants owned lands outside the drainage district, between the dam in question and the mouth of Cassidy Bayou, where it empties into Coldwater river, and along Moore’s Bayou. They charge in their hill that Cassidy Bayou is a well-defined watercourse, a running stream, and a natural drainage for their lands, and that the dam at .the place where constructed caused the waters of Coldwater river, in times of excessive rains and floods, to damage their lands. Appellants also charge in their bill that the question of the location and construction of *127 the dam at the point where it was located and constructed is res adjudicaba, the question having been decided adversely to appellee in a former suit instituted by appellants against appellee in the chancery court of Quitman county, but that, if mistaken in that position, neverthe; less, they are entitled to have the dam, as located and constructed, removed because of the reasons first above set out. The following statement of the case is deemed sufficient to develop the questions involved: Appellee, the drainage district, was organized in 1914. Among the plans for the reclamation of the swamp and overflowed lands embraced in the district was the construction of a. dam. Appellee planned to construct the dam across Cassidy Bayou, southwest of Belen, where Moore’s Bayou joins Cassidy Bayou, and, when that plan became known to appellants they filed a bill in the chancery court of Quitman county to enjoin the construction of the dam- at that point, charging substantially, as in their present bill, that Cassidy Bayou was a running stream, a well-defined watercourse, and a natural drainage for their lands, and that, by the construction of the dam as planned, their lands would be injured by the flood waters of Coldwater river, as well as other waters during excessive periods of rainfall. Upon the filing of the bill in that case, a temporary injunction was granted, enjoining appellee from the construction of the dam at the point planned. That case stood undisposed of until the decision of the Indian Creek Drainage District case, 123 Miss. 327, 85 So. 312. After the decision of the supreme court in that case, appellee took steps to bring the case to a hearing, and the result was a compromise consent decree was entered, which, leaving off its formal parts, follows: “Came on this cause this day for hearing, and came all of the parties, complainant and defendant, by their solicitors, and a part of the evidence being taken and *128 heard, all of the parties herein in open court by their solicitors agreed upon a settlement of this suit as follows: The complainants shall and do hereby dismiss the bill, assuming' all court costs, but without the payment of any damages on account of the injunction herein. The defendants agree on their part not to construct the levee and dam complained of, but in lieu thereof to construct a levee and dam across the said bayou at a point at the town of Marks, near C'oldwater river, on the west side of Yazoo & Mississippi Valley Railroad upon the condition that the complainants will furnish and pay sufficient money to cover all costs of the construction of the said dam and levee in excess of one thousand two hundred dollars', said dam and levee to be constructed and built by and under the direction of and at a place satisfactory to the' commissioners and engineer of the defendant drainage district. The land for the location and construction of the said levee and dam and the right of way for the same, and the cost of the material for construction of same, to be furnished and paid for by the complainants herein. It is therefore considered by the court and ordered and adjudged and decreed that this cause be and is hereby dismissed, and that the complainants pay all cost herein, and that no damages on account of the issuance of the said injunction shall be recovered by the defendants, and that the defendants shall not construct the levee and dam mentioned in the declaration, or any other dam or levee across Cassidy Bayou, except as herein stipulated, and that the complainants shall furnish and pay to the defendants all of the cost and expenses in excess of one thousand two hundred dollars of the construction of the said levee and dam across the said bayou at Marks, in accordance with such plans and specifications as the said drainage commissioners and the engineer shall provide, and, if necessary, pay for the land and right of way across the said bayou for the location of the said levee *129 and dam, and provide and furnish the necessary material for the construction of the said dam and levee, and shall pay all cost herein, for which execution may issue.” After the entry of that decree, appellee’s engineer examined Cassidy Bayou with a view of locating and constructing a dam at Marks near the Coldwater river, on the west side of the Yazoo & Mississippi Railroad, as provided in the decree, and estimated that it would cost, approximately, seven thousand dollars. The appellants were given notice of that fact, hut they failed to offer to pay, or tender, the additional cost of the dam in excess of one thousand two hundred dollars, as provided in the decree. Thereupon appellee proceeded to construct the dam, and did construct it, across Cassidy Bayou at the original site selected. After the dam had been so constructed, and had been in use for several years, and the drainage district had issued and sold its bonds to raise funds to pay therefor, as well'as other expenses necessary to carry out the scheme of drainage of the lands of the district, the bill in the present case was filed by appellants. As stated above, the result of the trial in the present case was that a decree was rendered, dismissing appellants’ bill, which decree, leaving off its formal parts, follows : “This cause having come on for final hearing on the original bill herein and the answer of all defendants thereto and proof heard in open court at the regular October term, 1927, of the chancery court of Quitman county, Mississippi, and the court at said term, after hearing all of the evidence in the case, having taken said cause under advisement for argument and for decree to be made and entered in vacation, by agreement of all parties, as shown by the order made and entered upon the minutes of said court at the said regular term, and the chancellor of said court in vacation now having heard the argument of counsel and fully considered said cause, and *130 being fully advised in tlie premises, is of the opinion that the complainants are not entitled to the- issuance of the mandatory writ of injunction against the defendants for the removal of the dam across Cassidy Bayou, in controversy in this case, or to any relief prayed for in the bill of complaint, the chancellor finding the following: “That Cassidy Bayou, at the point where the dam in controversy is located, is not a running stream, except at the time of flood waters. “That the flood waters in Cassidy Bayou, above the dam in controversy, do not, as a result of the ordinary and usual floods from year to year, get sufficiently high as to cause damage to the complainants, but that in case of an unprecedented flood, such as that of the year 1927, and in such case only, does the dam in question cause the flood waters in said bayou to overflow and damage the property of the complainants in the manner and to the degree testified about in this case. “That the dam in controversy was located at the present site as a part of the plans and specifications adopted by decree of the chancery court of Coahoma county, Mississippi, during the year 1924, for the Cassidy Bayou drainage district, after due notice to the landowners therein, and that the bonds of said district were issued for the construction of the drainage system according to such plans and specifications, and that such bonds were sold shortly after the passage of chapter 269 of the Laws 1914. , “That neither the commissioners of said drainage district nor its attorney had the power and authority to consent to a compromise decree, in the year 1920, in the case of W. T. Covington et al. v. Cassidy Bayou Drainage District, in the chancery court of Quitman county, Mississippi, being cause No. 1168, agreeing that said dam should not be constructed at the place called for in the plans and specifications adopted by the decree of the chancery court of Coahoma county as a part .of the sys *131 tem of improvements for which bonds of said district liad been issued and sold; and that said drainage commissioners or their attorney had no power or authority to agree for the construction of1 a dam some few miles distant from the one in controversy, and in lieu thereof and outside of said drainage district; and that the agreement set forth in the decree in said cause No. 1168 in the chancery court of Qjuitman county, Mississippi, if carried out, would have greatly lowered the efficiency of the drainage system of said district, and was violative of section 17 of said chapter 269' of Laws of 1914 [Laws 1912, chapter 195, section 17, as amended by Laws 1914, chapter 269, section 12]. “That on the controverted facts in regard to the respective attitudes of the complainants and defendants as to the performance of the terms of the decree in said cause No. 1168 in the chancery court of Quitman county, Mississippi, the complainants are estopped to enforce the said decree; the controverted facts in regard to why said dam at the town of Marks was not constructed not being decided, and all other controverted facts on points not covered in the foregoing findings are also undecided, their decision not being deemed necessary to a disposition of this case. “That for the past several years the top of the dam in controversy has been used by the traveling public as a public road, and so recognized by the board of supervisors of Quitman county, Mississippi, and that the effect of the issuance of a mandatory writ of injunction in this cause against the defendants for the removal of said dam would be to compel them to destroy said public road, for the time being’, and in violation of the law. “It is therefore ordered, adjudged, and decreed by the court that the complainants are not entitled to the relief prayed for, or to any other relief in the premises, and that the said bill of complaint should be and the same *132 is hereby dismissed, at the cost of the complainants, and for all of which execution may issue as at law. “And it is further ordered that the clerk of said court shall, in vacation, enter and record this decree on the minutes of the chancery court of Quitman county, Mississippi. ’ ’ It will be observed from the decree in this case that the chancellor found, among other things, the following facts: Thai. Cassidy Bayou, at the point where the dam in question is located, is not a running stream, except at flood times, and that the flood waters of Cassidy Bayou above the dam do not, as a résult of the ordinary and usual floods from year to year, get sufficiently high to cause damage to appellants’ lands. We will consider first whether the appellee was es-topped, by the compromise decree first above set out, rendered in the former suit, from constructing the dam at the place first planned and where it was constructed. As we view the decree in that case, it was nothing more than a contract entered into by the parties, and evidenced on the minutes of the court. In substance, the compromise agreement provided as follows: That the appellants’ bill should be dismissed, which was done; that appellants pay the costs of the suit; that appellee should not conT struct the dam at the site planned, but, in lieu thereof, at a point near the town of Marks, on the west side of the Yazoo & Mississippi Valiev Railroad, but upon condition that the appellants should pay appellee. any additional cost of the dam above the sum of one thousand two hundred dollars, and should also furnish land for the location and construction of the dam. The chancellor did not decide the question whether the appellants had breached the compromise decree,, but held that appellee had no authority, under the law, to agree to a. decree providing- that the dam should not be constructed at a place other than that provided for in the plans and specifications adopted by the chancery court of Coahoma county *133 as part of the system, of draining the district; that bonds of the district had been issued and sold for that purpose, and that neither appellee, nor its attorneys, had the power under the law to agree to the construction of a dam some miles distant and outside the drainage district, and that the agreement embodied in the consent decree, if carried out, would greatly lower the efficiency of the drainage system of the district, and would also violate section 17, chapter 195, Laws 1912, as amended by section 12 of chapter 269 of the Laws of 1914, under which the district was organized and the bonds therefor issued. The view we take of this question renders it unnecessary to decide whether the ground upon which the chancellor put his decision be sound or not. As stated, the compromise decree amounted to nothing more than a written contract between the- parties, evidenced' by the minutes of the chancery court, and we think the evidence was ample to show that the contract was breached by appellants by their failure, after notice, to either furnish the land for the right of way for the dam, or to pay, or tender payment of, any additional cost of its construction above one thousand two hundred dollars. On this question we do not see any substantial conflict in the evidence. The evidence shows that the appellee was without sufficient funds to build the dam a.t Marks ; that, about six months after the consent decree was entered, the appel-lee’s engineer, Fontaine, saw the appellant, W. T. Cov-ington, who had theretofore been the leader of and the most active of the appellants in the former suit, and discussed with him the matter of building the dam, and Cov-ington made no objection to its being built at the original site. The engineer made and had on file with the appel-lee a detailed estimate of the cost of construction of the dam at the new site, although there were no plans and specifications for its construction on file with the appel-lee. However, the consent decree did not provide that plans and specifications for the construction at the new *134 site should be furnished by appellee to the appellants before-the latter were required to furnish a right of way for the dam and necessary funds, above one thousand two hundred dollars, for its completion. Several months before the dam was built, appellee.made and entered upon its minutes the following’ order: “It is ordered by this board that whereas, a decree was rendered on the 7th day of October, 19'20, in the suit of W. T. Covington et al. v. Cassidy Bayou. Drainage District et al., No. 1168, in the chancery court of Quitman county, Mississippi, in which it was agreed, upon the dismissal of the bill in the above-styled cause, without requiring the plaintiffs to pay any damages therein, that the commissioners of this district would construct a levee and dam across Cassidy Bayou at a point at the town of Marks, Mississippi, near the Coldwater river, on the west side of the Yazoo & Mississippi Valley Railroad Company, upon the condition, however, that the complainants-would furnish and pay to the commissioners of this drainage district sufficient money to cover all the costs of the construction of said dam and levee in excess of one thousand two hundred dollars, the said one thousand two hundred dollars to be paid by the commissioners of this district, and the dam and levee to be constructed and built by and under the direction of and at a place satisfactory to the said commissioners, and its engineer, E. L. Fontaine. In pursuance of said decree the commissioners of this district and its engineer have long since selected the point at which said dam and levee should be constructed, and located the same at about one hundred yards west of the track of the Yazoo & Mississippi Valley Railroad and parallel with the same, which is at the said tqwn of Marks and near Coldwater river, and that the said engineer has estimated the cost and. construction of said dam and placing in the same a flapper valve equipment, so as to allow the water coming down the Cassidy Bayou towards Coldwater river to empty into same when *135 the flood waters in Goldwater river were lower in Cassidy Bayou; this is to be done in order to protect the landowners in the upper end of Moore’s Bayon and Cassidy Bayon. This manner of the construction of said dam was, at the time of the decree rendered herein, agreed upon between the complainants and the defendants. The estimate made of the cost of construction of said dam with said valve equipment is seven thousand dollars. “The commissioners cannot proceed to build the said dam until the complainants who entered into said agreement have furnished and paid into their hands sufficient money to cover all costs of the construction of the same in excess of one thousand two hundred dollars. “The commissioners of said drainage district again make demand upon the complainants in said suit, who entered into said agreement, to furnish sufficient money to cover said costs and expenses, and they are hereby notified that, unless they do furnish the said money and pay it into the hands of the said commissioners for said purposes on or before the 1st day of December, A. D. 1922, the said commissioners will proceed to build and erect the dam across Cassidy Bayou which they were enjoined in said suit from building, and the commissioners of this district do hereby instruct their engineer that, upon failure of the said complainants to furnish and pay over the said sum of money into the hands of the commissioners, of this district on or before December 1,1922, to proceed to let a contract for the building of said dam, from which the commissioners were enjoined from building in said suit, advertisement to be made in the usual way for bids on same. “It is further ordered that this order be printed by two insertions in the Quitman County Leader, a newspaper published in the. town of Marks, Mississippi, and the secretary of this board is hereby directed to mail a copy of this notice to each of said complainants in said suit, if it is possible so to do.” *136 This order was published in the county paper of Quit-man county in the issues of November 10- and 17, 1922, and the publisher of the paper mailed to each, of the appellants a marked copy of the paper, pointing to the order. The publication was required to be made by another order by appellee entered, on its minutes. It will be observed by the terms of the order that the appellants were notified of the cost of the dam to be constructed at Marks, and, we think, of. all of the necessary details in regard thereto, and, furthermore, that, if they failed to comply with the obligations they had undertaken in the consent decree on or before'‘December 1, 1922, appellee would proceed to erect the dam at the old site. The evidence showed that the complainants, neither jointly nor singly, took any steps whatever to furnish a right of way for the dam at the site provided for in the consent decree, or to pay the additional cost thereof above one thousand two hundred dollars. It will be observed that the order entered by appellee on its minutes published and mailed to the appellants, recited that the new site for the dam at Marks had been selected, and stated exactly where it was to be built. The published order was not the only notice the appellants had as to the exact location of the new site for the dam and of the cost of its construction. Appellee’s engineer talked at various times with several of the appellants, in which conversations they were informed by 'the engineer as to the location and cost of the dam, and at no time did appellants, or either of them, demand of appellee that plans and specifications for the construction of the dam be prepared by appellee’s engineer and put on file, subject to their inspection, nor did the appellants, or either of them, request of appellee that they be furnished with a more detailed statement of the cost of the dam than the statement prepared by appel-lee’s engineer. The appellants stood by, without protest, and saw the dam being constructed at the old site, and then, more than three years after its completion, and *137 after the cost of its construction had been paid for out of the bonds of the drainage.district, appellants brought this suit. We think the record in this case, fairly interpreted, forces the conclusion that the appellants abandoned their original contention that the dam should not be constructed a,t the old site, and for that reason failed to comply with the conditions embodied in the consent decree upon which the dam was to be constructed at the new site. . The argument that, if the appellants violated the obligations undertaken by them in the consent decree, ap-pellee’s remedy therefor was confined to a proper proceeding in that cause to enforce the decree, we think is without merit. The chancery court, in the consent decree, retained no control or authority, either over the subject-matter of the litigation or the parties. On the contrary, the decree expressly dismissed the bill in that cause. By virtue of its dismissal all the parties went out of court. The result was, as hereinbefore stated, that the decree amounted to nothing more than a compromise agreement entered into by the parties and evidenced by the minutes of the court. We will now consider the question involved in the first suit, which is also involved in the present case, viz.: Whether the rights of appellants, as riparian proprietors, were violated by the construction of the dam at the old site. Appellants contend that Cassidy Bayou is such a natural watercourse as that appellee was without right to obstruct its flow, to their damage, by the construction of the dam. As shown above, the chancellor, in his decree, found that Cassidy Bayou is not a running stream where the dam is located, except in time of flood water; that its office is to carry off the overflow waters of Cold-water river in unusual flood times, and that at such times alone does the dam cause the waters of the bayou to overflow and damage appellants’ lands. We think there was ample evidence to support those findings of fact by *138 the chancellor. C'assidy Bayou is a depression in the land from one hundred fifty to three hundred feet wide; its bed being from three to six feet below the adjacent lands. In flood times there overflows into it waters from .Coldwater river. However, during a larg’e part of the year, it dries up into pools and lagoons. Trees, stumps, and other kinds of growth are in it. In other words, it has the characteristics of the usual bayous found in the Delta section of the state. 'Mr. Fontaine, a civil engineer, testified that Cassidy Bayou was only a by-pass; that there was a place in the bayou, known as Ox Bow, where the bayou makes a loop of three miles and then comes back to within two hundred fifty feet of its starting point; that it is so filled up in places with drift that very little water can trickle through, thus causing its waters to back up; that the place where the dam is located is slightly higher than the rest of the bayou; that the dam is, therefore, on what might be properly called a ‘ ‘ divide; ’ ’ that, when Coldwater river is not at flood stage, the waters of the bayou flow from the dam eastward into the river, and on the west side-of the dam they flow the other way; that, when Coldwater river is at flood stage, its overflow waters back up the bayou until it gets four or five feet deep, and are then pushed over the “divide,” and begin to flow westward away from the river; that the overflow waters passing the dam go westward, but they do not get any further than Big creek, on the western edge of the drainage district, where- they are stopped by a dam of long-standing drift, and when the river begins to fall the flood waters do not pass on southward, but flow back into the river. Mr. Ikerd, a nearby landowner, testified that often during flood times he had stood on the bridge across Cassidy Bayou, and found that he could not tell which way the water in it was flowing, except by dropping into it some object that would float. The witness Mr. Fontaine testified that, from the dam to Big creek, some distance *139 west of the dam, even in flood times, the current of the water in the bayou is hardly perceptible; that it is so slow that, when part of the dam was blown out by dynamite in 1927, it took three days, with the added impulse given it, for the water to get around Ox Bow; that from Marks to the dam, and for several miles further westward1 to Big creek, the bayou is practically level; that, during the extreme high water -of 1927, very little of the flood waters of Coldwater river would have gone through Cassidy Bayou, where the-dam is located; that the overflow waters coming out of the river into the bayou become vagrant flood waters, running over a large area of' land, and when the flood goes down the water goes back into the river. Mr. Fontaine also testified that, when Coldwater river was at flood stage, its flood waters backing up into Cassidy Bayou, of which the appellants complained, flow west past the dam and on to Big creek, which is at the western edge of the drainage district, and when the river begins to fall it rushes back into Cold-water river. His evidence was corroborated by the evidence of other witnesses. Putting it in a. brief wav, appellee’s evidence tended to establish the following facts, which were found to be true by the chancellor: That although Cassidy Bayou and its outlets cover a stretch of many miles, the dam where located does not cause the ordinary waters of the bayou to overflow and damage appellants’ lands, and that the dam is necessary in order to protect the drainage district from the overflow'waters of Coldwater river from occasional, accidental, and extraordinary floods, and the chancellor further found that Cassidy Bayou was not a natural watercourse. The view we take of the question renders it unnecessary to decide whether or not the chancellor was justified in finding-; that the bayou was not a natural watercourse, for nevertheless Indian Creek Drainage District v. Garrott, 123 Miss. 301, 85 So. 312, and Jones v. George, 126 Miss. 576, 89 So. 231, are con- *140 elusive in favor of appellee’s contention. The bayou involved in the Indian Creek Drainage District case was of the same character as C'assidy Bayou. The court held in that case that the drainage district had a right to dam against the overflow waters of Coldwater river in flood times. Jones v. George, involved the question of whether a riparian landowner had a right to dam up Burr Bayou against the overflow waters of the Tallahatchie river. Burr Bayou and its outlets are probably fifteen miles in length, and Burr Bayou starts at the bank of the Tal-lahatchie river. During most of the months of the year it is practically dry, but during flood times the waters of the Tallahatchie river empty into it. At other times, the flow of the surface water from Burr Bayou is into the Tallahatchie river. Burr Bayou has a well-defined channel for some distance from the bank of the river. The court said, among other things: “It is the law that the free flow of water in rivers secured from undue interruption is an undoubted right of a riparian proprietor. .Riparian proprietors are protected from undue interference created by obstruction to this flow. To this rule, however, there is a well-recognized exception, namely, that other proprietors, in case of accidental or extraordinary floods, are entitled to erect such works as will protect them from the consequences of the flood, and that no other riparian owner is entitled to complain of such action upon the ground of injury inflicted thereby, because all as a result of an extraordinary and accidental condition, are entitled to the common right to construct works for their own protection. That this is not only the law in the different states of these United States, but that it is also the'law of the European countries is conclusively demonstrated by the masterly opinion of the late Chief Justice White in the case of Cubbins v. Miss. River Com., 241 U. S. 351, 36 S. Ct. 671, 60 L. Ed. 1041.” *141 Before our drainage laws were enacted, large areas of the most fertile lands in the state were lying idle. They were swamp and overflowed lands which, if properly drained, would be most productiva An outstanding public policy of this state, as evidenced by our drainage laws, is the reclamation of these swamp and overflowed lands. Under the operation of these laws, many of them, within the last twenty-five years, have been reclaimed and made highly productive. A large part of them is yet unreclaimed, but the probability is that, during the next quarter of a century, practically all of them will be brought into cultivation. In the swamp and overflowed sections of the state there are many bayous. This is especially true of the Delta section. There they may be found on every hand. They only answer the purpose of taking care of flood waters of rivers and creeks and local rains falling near by and into them. They have no sources of their own. They are not fed by other streams, except in flood times. In order to put into- practical and useful operation our drainage laws, the ’damming up of bayous of that character is a compelling necessity. In Richardson & May v. Board of Mississippi Levee Commissioners, 68 Miss. 539, 9 So. 351, the court said of the levee laws of this state as follows: ‘ ‘ The landowner 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 would, 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 levees, 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 intrusted with the execution of the scheme may *142 determine, and the landowner 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.” Affirmed.