City of Laurel v. Hearn , 143 Miss. 201 ( 1926 )

^* Corpus Juris-Cyc. References: Eminent Domain, 20CJ, p. 709, n. 68; p. 1211, n. 80. The appellee instituted suit in the circuit court against the city of Laurel seeking to recover damages for an alleged injury to a lot owned by him and on which is located a storehouse, and from a judgment for the appellee for two hundred dollars this appeal was prosecuted.

The declaration alleges:

That the appellee is the owner of a lot situated on the corner of Eleventh avenue and Washington street, on which is located a storehouse; that prior to the opening of said streets the natural drainage from the high ground to the north and west of said property flowed in a southwestward course; that the appellant has cut ditches and made drains along said streets so as to divert the flow of water and drainage from its natural course, and has "caused all of the water to the north and west of said property for several hundred yards to pass down said Eleventh and Twelfth avenues into Washington street, and has turned and diverted said water down said Washington street to the east and alongside of plaintiff's said property; that in front of said storehouse and lot the defendant has cut a ditch across Eleventh avenue, and thence on the east of said Washington street, and that said ditch, as it runs eastward alongside of said property, traverses sloping ground and is rapidly washing out a gully alongside of plaintiff's property, to the very great damage and injury of the same."

The declaration further averred:

"That in collecting and diverting said water the defendant has caused the same to pond and puddle in front of said store building at long intervals of time, becoming impure and greatly detracting from the value of plaintiff's property, and as said water is made to flow down said incline on Washington street, his lot is not only being damaged by the washing out of said ditch or gully, but the same is being damaged by erosion and caving in of his lot."

It appears from the testimony that Washington street and Eleventh avenue cross at right angles, Washington street running east and west, while Eleventh avenue runs north and south, and the appellee's property lies at the northeast corner of the intersection and faces west. Before the improvement of these streets and the opening of the ditch complained of, the natural drainage of surface water on Eleventh avenue was in a southwesterly direction across that street and along the western side thereof, and then westward or southwestward along Washington street from the intersection of Washington street and Eleventh avenue. There was a small curb ditch or gutter about eight inches deep running east from Eleventh avenue along the north side of Washington street. The surface water tended to pond at the intersection of Eleventh avenue and Washington street, and to spread over land to the west and southwest, and to relieve this condition and afford better drainage for this territory the city deepened and enlarged the small curb ditch which ran east along the north side of Washington street, thereby causing this surface water to run east on Washington street. There was a sidewalk space of about ten feet between this ditch and the southern boundary line of appellee's property. This ditch was about three and a half feet deep at the deepest point, and in order to provide free access to the side and rear of appellee's property from Washington street it would be necessary to bridg this ditch.

While the contest in the court below largely revolved around the right of the city to divert the natural flow and drainage of surface water, the only contention made by appellee in this court is, that in constructing this ditch and causing the surface water to flow along the street south of his property, the city thereby damaged his property for public use in violation of section 17 of the Constitution, which provides that:

"Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law."

Section 3338, Code of 1906 (section 5835, Hemingway's Code), gives to the city "full jurisdiction in the matter of streets, sidewalks, sewers, and parks; to open and lay out and construct the same; to repair, maintain, pave, sprinkle, adorn, and light the same." The construction, maintenance, paving and repair of streets necessarily obstructs and diverts the natural drainage of surface water. The city is charged with the duty of constructing and properly maintaining its streets, and the right to provide thereon all such drains and ditches as may be necessary and convenient for the purpose of carrying off the surface water that may be collected thereon as a result of proper construction and maintenance thereof is necessarily incident to the proper discharge of this duty. While the city would be liable for the consequential damages inflicted upon abutting property by an improper or negligent use of the street in providing drains or ditches, still the streets may be devoted to any proper use incident to the construction and maintenance of the public thoroughfare. Such use is not a new or additional taking for public use, and the adjacent owner must suffer the injury or inconvenience resulting from such use. In discussing this question in the case of Hazlehurst v. Mayes, 84 Miss. 7, 36 So. 33, 64 L.R.A. 805, the court said:

"For any diversion from the original purpose, for any additional servitude imposed by an equipment foreign to its use, for any new or additional taking for public use, or for consequential damages inflicted by an improper use, the abutting owner is entitled to full compensation, because such rights are not presumed to have been acquired by the original taking. But, as the public use is the dominant and controlling interest, the streets may be devoted to any proper use incident to a public thoroughfare, and the adjacent owner must suffer the resulting injury or inconvenience. So that the authorities of a municipality may, when its charter powers permit, on its streets dig drains, lay gas pipes or water mains, construct sewers, or erect posts and wires for lights, because such things and other incidental uses are within the contemplated scope of the dedication of the highways to the public use. Briefly stated, the municipality has the power to make such legitimate use of the highway as is for the benefit of the community at large, and may, without additional compensation to the abutting owner, place any equipments or appliances in the streets which are necessary, convenient, or incidental to their full use and enjoyment as such."

In the case at bar the testimony does not show that the drain in question was not necessary and convenient for the proper construction, use, drainage, and maintenance of the streets serving the territory, and negligence in providing and maintaining the ditch is neither charged nor proven. Consequently, we think the peremptory instruction requested by the appellant should have been granted.

The judgment of the court below will therefore be reversed, and judgment entered here for the appellant.

Reversed, and judgment for appellant.