Board of Directors St. Francis Levee District v. McVey

Wood, J. (after stating the facts.) In the case of Board of Directors of St. Francis Levee Dist. v. Powell, 89 Ark. 570, Powell sued the district to recover damages done to his land by the taking of dirt therefrom to use in the enlargement of the levee which had been previously built through his lands. The deed by Powell’s grantor, the former owner, who had previously conveyed the right of way across the land, was precisely the same as the deed now under review. Powell alleged in his complaint “that the defendant without authority entered upon land outside of the strip of land necessary for the construction and maintenance of the levee and removed soil for a distance of 600 feet and stripped the land of productive soil.” In that case the bill of exceptions showed that the cause was heard upon an agreed statement of facts, and that other evidence was introduced. But the bill of exceptions failed to show that it contained all the evidence. The court rendered judgment in favor of the plaintiff. In that case we said: “There is nothing in the record to show where the dirt was taken from. The defendant, even under the broad authority conferred upon it by the terms of the right of way deed, would have no right arbitrarily to enter upon plaintiff’s land at will and remove soil for use in the maintenance of the levee. It would have to confine the removal of soil within parallel lines so as to inflict as little injury as possible to the land. As the record is silent, we must indulge the presumption that the allegations of the complaint were sustained by the evidence.’’ In the case at bar the record shows that the cause was heard upon an agreed statement of facts, and there is nothing to show that there was any other evidence. It appears from the undisputed testimony that the six acres of land in controversy was appropriated by the levee board “because the board believed it necessary for the purpose of strengthening and enlarging said levee, and the land was contiguous to the line originally built.” The taking of the land under these circumstances was authorized under the deed from the original owner to appellant. While appellant would have no right, as stated in Levee District v. Powell, supra, “arbitrarily to enter upon plaintiff’s land at will and remove soil for use in the maintenance of the levee,” it did have authority, under that deed, to take all land that in the judgment of the board was necessary for the construction and maintenance of the levee so long as the board was not acting arbitrarily in so doing and only took the soil within parallel lines or contiguous to the immediate line of the levee. The undisputed evidence here shows that the board was justified, under its right of way deed, in appropriating the land in controversy for the purpose of constructing, strengthening and enlarging the levee. The finding of the court to the contrary is' error, and the judgment is therefore reversed and the cause is dismissed.