Belzoni Drainage Dist. v. Cobb

Ethridge, J., delivered the opinion of the court. The appellee sued the appellant for damages resulting from the overflow of his lands from the drainage system of appellant because of the cleaning out of channels of the canals, or certain of them, which caused the waters thereof to back and impound upon the lands of plaintiff destroying his crops. There were two counts in the declaration. The first proceeded upon the theory that the work was done in an improper manner, and that it could have been done in a manner whereby plaintiff’s lands would not have been overflowed or damaged. There was a demurrer to this count of the declaration which was sustained by the court below, and from which no appeal has been taken. The second count of the declaration proceeded upon the theory that the work was performed in a proper and necessary manner, but that plaintiff’s lands did not touch upon the said canals, and he had not had an opportunity to present any claims for damages until the present injury occurred, and that his right to damages is assured to him by section 17 of the Constitution, providing that private property shall not be taken or damaged for public use without compensation, etc. There was a demurrer to this count of the declaration which was overruled, and thereupon a plea was filed by the defendant, denying that it was guilty, etc., in the manner, etc., set forth in the declaration, and notice under the general issue was given that defendant is a public corporation not liable for damages except in the — 402 — manner provided by law; that the work resulting in damages to the plaintiff was not done and performed by the defendant, but was done by an independent contractor under a contract duly and lawfully entered into, etc., by which the contractor agreed to pay and assume liability for all damages resulting from the work; further that the damming up of the ditch was done in the performance of the work of cleaning out drainage ditches and that said work was absolutely necessary and was done by an independent contractor, and that the details of the work were not controlled by the defendant; further that the drainage district was legally created under chapter 195, Laws of 1912; in the year 1913, and that all provisions of law were complied with and assessments of benefits and damages then made, but said lands involved in this suit were then in the district and still are in the district, and that the benefits and damages have been assessed for the laying out of the said drainage. There was a verdict for three hundred dollars for the plaintiff, from which this appeal was prosecuted. The appellant contends that the damages here involved were within the contemplation of the original laying out of the district, and that they must have been claimed at that time, or be precluded by the creation of the district at that time, relying upon Moore v. Swamp Dredging Co., 125 Miss. 842, 88 So. 522, and Minyard v. Pelucia Drainage District, 133 Miss. 847, 98 So. 225. The appellee contends that because the Moore case, supra, was a grant of a right of way and touched upon the canals, that it is different from the present case where the lands damaged lie some distance away from the canals. The present canals which were being dredged out were laid out in accordance with the original plans of the district when created. It is not a case of constructing new and independent drains not within the contemplation of the plans and specifications in the original creation of the district. In other words, the canals here involved are the canals — 403 — provided for in the original creation of the district. It is immaterial whether the lands touched upon or are adjacent to the canals. When the plans and specifications are filed, and notice given as required by law, the property owner must determine for himself as best he may whether his land will be benefited or damaged by the proposed project as it is proposed to be constructed. It may be a difficult thing to estimate whether it will damage him or not, but the width and depth of the canals, the contour and extent of the territory to be drained, the volume of water that will pass, through these canals and over the territory, and all matters which he must consider and deal with then. When these ditches were laid out, whatever was necessary to do to maintain them in the future must be considered by the district and by the property owners of the district at that time, and if it is necessary and proper to dam up these canals to clean them out from time to time, the property owner-must know this and provide for this contingency in making his claims for damages at the time of the creation of the district. This is what we understand the Moore case, supra, to hold. It is immaterial whether the right of way ,was obtained by a general grant, or whether it was acquired by condemnation proceedings so far as these claims are concerned. Of course a person may waive by contract all claims for damages, in which case he never could recover any. He may also, by failing to propound his claim for damages at the proper time, waive claims therefor as was distinctly held in the Minyard case, supra. It is true that it is difficult to determine how often it may be necessary to redredge these canals, or at what season of the year the work may be required to be done to protect the district in the drainage contemplated. It is all a matter of engineering and calculation, and where no changes are made in the district all damages are fixed at the time of the creation of the district, or during its progress. Of course, if new drainag’e schemes not with — 404 — in the original contemplation are undertaken, a new damage would arise, and it would be necessary to provide for that, but if not provided for the courts would be open to the person whose property was taken or damaged. Under the record now before us the damages were within the contemplation of the original laying out of the district. The judgment must be reversed, because of the failure to grant the peremptory instruction requested by the defendant. Reversed and. dismissed.