Toler v. Bear Creek Drainage Dist.

Smith, C. J., delivered the opinion of the court. This is an appeal from a decree of the court below making permanent a temporary organization of the Bear creek drainage district over the protest of the appellants, who own land in the district. The district embraces something over one hundred thirty-five thousand acres of land in the counties of Leflore, Sunflower, and Humphreys. It is bounded on the east by the Yazoo river, and partly by Roebuck Lake on the northeast. Roebuck Lake connects with the Yazoo river, but whether it is tributary thereto or is an outlet for flood waters thereof does not appear, and whether it is the one or the other is not material. To the west of the district is the Sunflower river, a large stream which flows in a southerly direction and empties into the Yazoo river not a great distance before it reaches the Mississippi river. The elevation of the land in the district from the Yazoo river west rises until at a point some distance to the west' of the center thereof it reaches an elevation of one hundred eight feet above sea level. The surface water on the land east of this elevation, which we will hereafter designate as the divide, flows into the Yazoo river mainly through Bear creek into Wasp Lake, which connects with the river. The surface water on the land west of the divide flows into the Sunflower river largely through Dawson bayou. The Yazoo river overflows annually, and when *861 the water therein reaches an elevation of ninety-six feet above sea level, • it backs np Bear creek, and, when it reaches an elevation of one hundred eight feet above sea level, crosses the divide through natural depressions therein and flows through Dawson bayou into the Sunflower river for periods varying from three to six months. The elevations reached by the flood waters of the Yazoo river vary, sometimes reaching the height of one hundred fifteen feet above sea level. The extent of the inundation from the flood water of the Yazoo river of the land west of the divide depends on the elevation of the water above sea level. One of the purposes for which the district is sought to be established is to prevent the flood water of the Yazoo river from inundating any of the land within the district, and is to be accomplished by the construction of a levee along the south bank of Roebuck Lake and the west bank of the Yazoo river. The levee will be pierced by a gap at Wasp Lake, in which gates will be placed, which will be closed when the water in the river reaches an elevation of ninety-six feet above sea level, and will be opened when it falls below that level. After the levee is constructed, and when the gap therein at Wasp Lake is closed, the surface water of the district east of the divide will accumulate in Bear creek and overflow a part of the land on that side of the district, and when Bear creek reaches an elevation of one hundred eight feet it will go over the divide into the Sunflower river. In order to prevent this overflow the distict proposes to dig three ditches- across the divide of sufficient depth and width to carry the water from Bear creek, after the gap in the levee at Wasp Lake has been closed, across the divide into Dawson bayou, through which it will flow into the Sunflower river. These ditches will so conduct the water only when the gap in the levee at Wasp Lake is closed, and when that gap is open Bear creek will flow into the Yazoo river. When the gap in the levee at Wasp Lake is closed, no water from the Yazoo river will enter Bear creek or otherwise cross the *862 divide, and less will then be conducted across the divide by these ditches than now crosses it during the flood periods of the Yazoo river. One of the objections in the court below to the establishment of the district was that Bear creek is a navigable stream, and consequently the district would be without power to obstruct its outlet into the Yazoo river. The court below heard evidence for and against this contention, and held that Bear creek is not a navigable stream, which holding is not here contested, and will not be inquired into. The land owned by the appellants lies west of the divide, and the objection to the establishment of the district which-they here press is to the digging of the ditches by which the flood water of Bear creek will he conducted across the divide into the Sunflower river when the gap in the levee at Wasp Lake is closed. One of the provisions of the statute under which this drainage district is sought to be organized is that such a district may be established “if it appear that the establishment thereof be necessary for the promotion of public health and for agricultural purposes,” and “be to the advantage of the owners of real property therein, and for the public benefit. ’ ’ Section 2, chapter 269, Laws of 1914 (Hemingway’s Code, section 4438). The purpose which it is sought to accomplish by the establishment of the district is to protect the land therein from inundation by the periodical overflows of the Yazoo river, which purpose the chancellor found on evidence so warranting: would be accomplished, by the levee and ditches which the district proposes to construct and dig. This finding of the chancellor is not seriously, and could not he successfully, contested. It may be that all of the land in the district will not be benefited to the same extent by the establishment of the district, but, if so, that fact is of no consequence, for equality of benefits is not essential to the formation of a drainage district. The appellants admit that the levee proposed to be constructed will be beneficial to them, and they raise no *863 objection thereto. Their complaint is that a part of the scheme which the district proposes to pnt into effect, and which will be necessary in order to protect the land east of the divide from overflow, is to conduct the water which accumulates in Bear creek after its outlet into the Yazoo river has been closed by means of three ditches across the divide into the Sunflower river. Their contention in support of this objection in effect is that not only does the statute not confer upon drainage districts the right to conduct water from one watercourse to another, or from one watershed to another, but that so to do is expressly prohibited by sections 1 and 6, chapter 257, Laws of 1924, and under the common law, which the statute has not displaced, the appellants have the right to construct a levee along the divide sufficiently high to prevent the flood water of the Yazoo river from crossing it and overflowing their lands, which right i§ inconsistent' with and excludes any right in the appellee to conduct such flood water across the divide by means of ditches. The authority of the legislature to enact laws for the establishment of drainage districts is derived from the police power. Cox v. Wallace, 100 Miss. 525, 56 So. 461. The purpose for which such districts may be and are established is to promote the public welfare (Cox v. Wallace, supra; Jones v. Drainage District, 102 Miss. 799, 59 So. 921), and the private drainage rights of the landowners who own the land composing the district become, ex necessitate, merged in and are supplanted by the rights relative thereto conferred by the statute on the district. If each landowner continues after the establishment of a drainage district to have the right to drain his land as he pleases, the district could not properly function, and each landowner therein would be at the mercy of every other to the same extent that he was before the district was established, one of the things which the statute authorizing the establishment of drainage districts was enacted to prevent. We are not here concerned with the extent to which the legislature may go in establishing drainage districts, for the provisions *864 of the statute hereinbefore set forth under which the district here in question is to be established is well within the power of the legislature. Cox v. Wallace, and Jones v. Drainage District, supra. It follows necessarily from the foregoing views that any rights which the appellants may now have to construct a levee along the divide to protect their land from flood waters of the Yazoo river will become merged in and must yield to the rights relative thereto with which the drainage district will be vested when established. But the right of the appellants to protect their land from the flood waters of the Yazoo river by constructing a levee along the divide is not absolute. They have the right at common law to fend such water from their land, but if there are two ways of doing so, each equally efficacious and neither requiring unreasonably greater expense than the other, one of which will damage adjoining property and the other will not, the latter method must be adopted by them. Holman v. Richardson, 115 Miss. 169, 76 So. 136, L. R. A. 1917F, 942. To construct a levee along the divide will protect the land lying west of it, but will damage the land lying east of it, but to construct a levee along the west bank of the Yazoo river and conduct the water which will accumulate in Bear creek when the gap in the levee through which it usually flows into the Yazoo river is closed, by means of ditches crossing the divide into the Sunflower river, will effectually protect the land both east and west of the divide, and will inflict no damage on the land west of the divide. Consequently, to permit such levee and ditches to be contracted and dug not only violates no common-law right of the appellants, but is consistent therewith. So far we have dealt with the rights which the proposed drainage district will have under chapter 195, Laws of 1912, and the amendments thereof up to but not including chapter 257, Laws of 1924, and have arrived at the conclusion that thereunder the proposed drainage district would have the right to conduct the water which accumulates in Bear creek after its outlet into the Yazoo *865 river has been closed by means of ditches across the divide into the Sunflower river, so that we come now to the appellants’ contention that so to do is prohibited by sections 1 and 6 of chapter 257, Laws of 1924. This statute, it will be observed, is not intended to limit any power which chapter 195, Laws of 1912, and its amendments confer upon drainage districts, but was intended to add other powers thereto, for it' expressly provides in section 1 that such districts “are hereby given the power, in addition to those powers now given by said chapter 195, Laws of 1912, and amendments thereof, to construct,” etc., and, in section 6, “that this act shall not be construed to repeal, amend or modify any existing laws, but shall be deemed as supplemental to the law as it now exists.” This inquiry might well end here, but out of deference to counsel will be pursued further. The power conferred by section 1 is: “To construct and maintain by-passes, for conveying surplus and overflow waters by means of ditches, canals, floodways, levees, conduits, or other artificial means by shorter and more direct route from tributaries of natural streams, and their watersheds, to their main watercourse, and from one point in a natural watercourse to another point therein; provided, however, said by-passes, ditches, canals, floodways, levees, or conduits shall empty the water directly into the same natural water course to which it would naturally flow. ’ ’ The restriction on this power contained in section 6 of the statute is: ‘ ‘ That nothing herein contained shall be construed to permit the enlargement of any prescriptive rights now or hereafter existing or acquired; nor permit the diversion of water from one watershed or basin to another watershed or basin.” The appellants’ contention in this connection is that when the outlet of Bear creek into the Yazoo river is closed, the only water that will accumulate in that creek is surface water, and that which flows into it from its tributaries, all of which should naturally flow into the *866 Yazoo river and not into the Sunflower river. Consequently, to conduct this watér from Bear creek across the divide into the Sunflower river would violate the statute. The facts on which this contention is predicated are true, but it does not follow therefrom that the statute will be thereby violated. The Sunflower river is one of the watercourses to which all of the water on both sides of the divide will naturally flow when it reaches an elevation of one hundred eight feet above the séa level, and when it reaches that elevation and flows over the divide it is composed of both the flood water of the Yazoo river and the surface water of the district. Consequently, if the levee is constructed, the effect of the ditches proposed to be dug across the divide will simply be to cause the water to flow from Bear creek into the Sunflower river earlier than it would in a state of nature; that is, before it reaches an elevation of one hundred eight feet. Were it not that the flood water of the Yazoo river inundates the land west of the divide, section 1, chapter 257, Laws of 1924, would prevent the conducting of water from Bear creek across the divide into the Sunflower river, but as such flood water does cross the divide and flow into the Sunflower river in a state of nature, the statute not only does not prohibit, but, on the contrary, authorizes, the digging of ditches by which the flow of such water to the Sunflower river will be accelerated. The foregoing views are not in conflict with the case of Pompey Lake Drainage District v. McKinney Lake Drainage District, 136 Miss. 168, 99 So. 387, which was decided before chapter 257, Laws of 1924, was enacted, and in which this court held that a drainage district is without the power to divert water from one watercourse to another into which it would not naturally flow. In that case, McKinney Lake drainage district sought to conduct water “out of McKinney Lake, a natural watercourse, and discharge it into White Oak bayou through which the waters of McKinney Lake originally did not go except in cases of unusual floods or overflows. ’ ’ It *867 did not appear in that case that the land through which White Oak bayou flows was damaged by the water which occasionally flowed into it from McKinney Lake, and the diversion of water from McKinney Lake into White Oak bayou was for the benefit of the McKinney Lake land only, and was no part of a scheme to protect both the McKinney Lake and White Oak bayou land from periodical overflows of McKinney Lake. In the case at bar, the surplus water from Bear creek periodically flows over the divide into Dawson bayou for a period of from three to six months, and floods a large part of the land drained thereby, and the diversion of water from Bear creek to Dawson bayou, if such it can be called, is a necessary part of a larger scheme, the purpose of which is to protect the land ordinarily drained by both Bear creek and Dawson bayou from periodical overflows of Bear creek caused by similar overflows of the Yazoo river. Affirmed and remanded.