Herring v. Lee County

Ethridge, J., delivered the opinion of the court. The appellant was owner of certain, lands along the northern boundary of which a public road known as the Tupelo and Poplar Springs Road passed. Crossing the road at the northwest corner of the appellant’s land and running south practically'on the western boundary of the said land is a stream known as Bushbeloda creek. West [7] of the creek along the said road is a strip of bottom land, the distance being from the creek to the hills west of appellant's land about one hundred rods. Near the western part of this bottom is a small stream called Union Branch. Both of the said streams overflow frequently, and in time of heavy rains prior to the construction of the levee hereinafter mentioned these flood waters spread over the entire bottom. In 1915 the board , of supervisors of the county had a dump thrown up across this bottom from the bridge over Bushbeloda creek to the hills west. It left openings at Union Branch and at Bushbeloda creek and also an opening about two hundred and seventy-five yards west of the bridge on Bushbeloda creek. Prior to the erection of this dump for elevating the roadway, the waters passed over this road in times of flood; there being five or six places in the old roadbed where it crossed. On the north or upper side of the levee so constructed in 1915 there was constructed a borrow pit or excavation, about twenty feet wide, which ran along the northern side of the public road into Bushbeloda creek. As the result of the construction of the road and levee, the water which hitherto overflowed the whole bottom in a smooth even way is collected above the dump or levee and empties into Bushbeloda creek, except that part which passes through the two other openings mentioned, the result of which is to empty into Bushbeloda creek the collected flood waters which makes the waters in that stream higher where it passes along the appellant’s land than it. was heretofore, and in time of flood the channel is insufficient to convey the accumulated waters. On the southern part of the appellant’s land the lands on the east side of the creek are lower than that on the west side, and the result is that the flood waters pass across his land in a greater amount and to a greater depth than formerly. And the testimony tends to establish that the land is less productive, producing less crops than theretofore. There was some conflict in the evidence as to the damage done to the appellant’s land, but the chancellor found that he was not entitled to any damages, and we reach the conclusion [8] from the record and his opinion that he did so because the law did not entitle the appellant to damage in such case. The appellee contends that the cases of Indian Creek Drainage District v. Garrott, 123 Miss. 319, 85 So. 312, and Jones v. George, 126 Miss. 576, 89 So. 231, control this case, and that under them appellant is not entitled to damages claimed, nor to any damage. The appellant did not own the land on either side of the public road west of Bushbeloda creek, but his claim for damages is that the construction of the levee and borroAV pit caused the flood ivaters to be cast back into the channel of the creek earlier than they would have been cast and if the said levee had not been constructed such flood waters would have passed beyond his land before returning to the channel of the stream. The proof shows that only flood waters pass back into Bushbeloda creek above the public road and that the channel of the Union Branch is not affected and that no bed of the stream has been diverted by reason of the said levee.. In the Indian Creek Drainage District Case, supra, this court held that any person could fight vagrant flood waters; that is to say, such flood waters as spread out uniformly over the adjacent lands not being collected in any channel or stream. We are of the opinion that the above cited cases control this case, and that the appellant has no right of recoArery in this case. Affirmed.