Moose v. Swamp Dredging Co. , 125 Miss. 842 ( 1921 )

Sykes, P. J.,

delivered the opinion of the court.

The appellant, C. B. Moore, as plaintiff, filed in the circuit court suit for damages for the value of thirty-five acres of alfalfa and fourteen acres of corn alleged to have been drowned and killed by water caused by the damming up of the Coonewar canal by the defendant. The declaration alleges the organization of the Coonewar drainage district several years prior to the alleged injury; that this district was organized and operated under the provisions of chapter 39 of the Code of 1906 (chapter 99, H:eming-way’s Code); that the commissioners of this drainage district, acting in their official capacity, entered into a contract with the defendant to clean out and deepen and widen the canal, which runs through the land of plaintiff; that in accordance with this contract the defendant in the performance of it dammed up the canal, and placed its dredgeboat in it for the purpose of performing the work, by virtue of which the canal was flooded with water and completely stopped as a running stream, causing it to overflow and break through its banks and pond the water upon the alfalfa and corn lands of the defendant and hold it there for a sufficient length of time to kill and drown out these crops.

The defendant filed a plea of the general issue and a special plea in which it averred, among other things, its nonliability because of the legal organization and maintenance of the drainage district and the agreement of the landowners in this district to the doing of this work, among which landowners was the immediate predecessor in title of plaintiff, and the plaintiff bought his land after the district was organized and while this work was being done by the defendant, and that the work was done in a proper, skillful, and workmanlike manner, in the method and according to the plans under which the defendant contracted to do it, and without any negligence on the part of the defendant; that any damage done to the crops of the plaintiff was an incident to the construction of the work. There were other pleas filed not necessary to be noticed in the case.

Upon motion, the plaintiff was allowed to amend his declaration and allege that the defendant was guilty of negligence in the performance of his contract, and that it was not performed in accordance with law, and was in violation of section 17 of the Constitution of the state of Mississippi.

There appears in the record an agreement to the effect: That the Coonewar drainage district was organized several years ago, under proper proceedings before the hoard of supervisors. Subsequent thereto proceedings were had in the chancery court under chapter 39, Code of 1906 (chapter 99, Hemingway’s Code). That the orders and decrees under this chapter, and under which this contract was let, were proper and valid and in strict conformity with the law. That the commissioners were properly appointed, the district properly organized, the proper orders obtained for the enlarging of the canal, and that the canal crossed the land of the plaintiff, over which a right of way was obtained in the first instance by grant. That the work which was being done on this canal, about which this controversy axises, was being done by virtue of an order of the chancery court. It is not contended that the plan adopted for the enlarging of this canal was an improper plan.

The circuit judge held that the only issuable fact presented by the pleadings and this agreement was whether or not the defendant was guilty of negligence in the performance of the work in enlarging this canal, and, if so, whether or not this negligence was the proximate cause of the alleged damage to plaintiff. At the conclusion of the introduction of the testimony a peremptory instruction was given in favor of the defendant, upon which judgment was entered.

In this court it is the contention of the appellant: First, that he is entitled to recover in this case regardless of any negligence, of the defendant under 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,” etc.; second, that the testimony in the case shows that the defendant contractor Avas guilty of negligence in the building of a dam in the canal on the plaintiff’s land and in failing to provide an adequate ditcb or outlet for the water from a point above the dam, and running into the canal below the dam.

Without setting forth in detail all of the testimony in the case, it is sufficient to say that the uncontradicted testimony shows that the contractor did this work in accordance with the plans for the enlarging of the canal; that the putting in of the dams across the canal was the usual, proper and necessary way in which this work had tó be done; that the outlet, or, as it is called in the record, spillway, which is a small ditch leading out of the canal just above the dam and into the canal again below the dam, and which is meant to take care of some of the surplus and overflow water of the canal, was in this case built in the usual, proper, and ordinary manner. In fact we find no question of negligence in this record which should have been submitted to the jury.

The agreed statement of facts shows that the Coonewar drainage district acquired its right of way in this case by grant for canal and drainage purposes; that it was necessary and proper for this enlargement work to be performed. By this grant the drainage district necessarily became vested with the light and power to do whatever work was necessary and proper upon the canal for its proper use and maintenance, and included in this grant was the right to properly construct the canal in the first instance, and the further right to properly maintain it in the future, doing whatever work became necessary to maintain it as a proper canal to drain the lands within the district, which grant necessarily carried with it the right to clean out, enlarge, or do whatever other work was necessary and proper for its maintenance and use. In the case of Canton v. Cotton Warehouse Co., 84 Miss. 268, 36 So. 266, 65 L. R. A. 561, 105 Am. St. Rep. 428, in discussing for what purpose a railroad could use its right of Avay this court said:

“It has the right to do all things with its right of way, within the scope of its charter powers, which may be found essential or incidental to its full and complete use for the purpose for which it was acquired.”

In the case of Railroad v. Brown, 64 Miss. 479, 1 So. 637, in speaking of a landowner oyer whose land the railroad company had acquired a right of way by condemnation proceedings,-it is held that:

“The plaintiff (the landowner) is not entitled to recover anything from the defendant for doing what it had the right to do, no matter why it may have done it. . . . Mr. Brown is not entitled to damages because of the unsightliness of his plantation, or its supposed unhealthiness from standing water, or the inconvenience of crossing over by reason of the pits made in the excavations on the right of way. He must suffer uncomplainingly the natural result of the proper exercise by the railroad company of its right, as purchaser and owner of the right of way o.ver his land, to make such use of it as it saw proper under its charter and within its provisions. For ali this he is supposed to have been paid in the proceedings by which his land was condemned for the right of way. H'e was entitled to this, and it must be assumed that he got all he was entitled to.”

Again in the case of Railroad Co. v. Stingily, 111 Miss. 237, 71 So. 376, this rule is therein reannounced as follows:

“As we understand the trend of the decisions of this court, it has always been held that when a right of way for a railroad company is condemned or bought, the right to do- any and all things necessary and proper in the use of same are presumed to have been paid for. The land owner is supposed to have been compensated for all damages incidental to a proper use of the land. He, of course, must have taken into consideration all of the injuries which might flow from' the -proper operation of a railroad over his land, and demanded and received compensation for the land taken, not as a separate tract, but as a part of the entire tract. He could and should have received compensation for damages to the whole tract which would follow from a maintenance of the right of way.”

In the case of Daniels v. Board of Directors of St. Francis Levee District, 84 Ark 333, 105 S. W. 578, this rule is thus correctly stated by the supreme court of that state:

“Plaintiff having expressly consented to the construction and maintenance of the levee and granted a right of way over his land for that purpose, he cannot complain of any damage to the land resulting from the construction of the levee in a skillful manner. His grant to the levee district of the right to construct the levee through his land was a waiver of any claim for damages to the land resulting from the construction and maintenance thereof, if done in a skillful manner. Such damages are conclusively presumed to have been compensated for by the consideration-paid for the conveyance.”

In this case, since the drainage district is not liable for this damage, then the contractor necessarily cannot be held liable for the doing of the work in a proper manner.

In principle there is no difference between the use of a railroad right of way and the use of a drainage canal. The landowner in each instance is presumed to have been compensated for all damages to his land which results from a proper use of the right of way for the purpose for which the land was granted.

In this case, assuming that the damage to .the crops was caused by the manner in which the work of enlarging the canal was being done, the testimony shows that the work was being properly performed, and that the drainage commissioners had a right to have this work done. Consequently, there was no invasion or violation of any legal right of the plaintiff, though his damage was caused by the doing of this work. This is damnum absque injuria.

“No cause of action arises from the doing of a lawful act or the exercise of a legal act if done or exercised in a lawful and proper manner; the resulting damage, if any, being damnum absque injuria.” Corpus Juris, vol. 1, p. 965.

“Everyone has a right to the natural use and enjoyment of his own property, and for lawful acts done by one person upon his own property in a lawful and proper manner there-is no canse of action, although damage to another may incidently result therefrom, such damage being dam-num absque injuria

This rule is well settled in the case of Parker v: Griswold, 17 Conn. 288, 42 Am. Dec. 739:

“An injury, legally speaking, consists of a wrong done to a person, or, in other words, a violation of his right. It is an ancient maxim that a damage to one, without an injury in this sense (damnum absque injuria) does not lay the foundation of an action; because, if the act complained of does not violate any of his legal rights, it is obvious that he has no cause to complain.”

Again in Heywood v. Tillson, 75 Me. 225, 46 Am. Rep. 373, quoting Cooley on Torts 685:

“The exercise by one man of a legal right cannot be a legal wrong to another.”

(4, 5) In the adoption of the plans and in the doing of the work the maxim, “Sic uiere tuo ut alienum non liúdas” as construed by the court, must be observed. This rule is thus laid down in Sinai v. Railway Co., 71 Miss. 547, 553, 14 So. 87, 88:

“But, in the use and exercise' of its privileges and powers, we must not assume that the state designed to disturb well-settled, general legal principles, and to absolve its creation from the observance of the same rules of conduct as apply to and govern the natural person. The railway corporation must not recklessly and willfully use its powers to the injury of the citizen. It must use its privileges in such manner as may be necessary to meet the objects of its creation; but it must do so with reasonable care and skill. It may, by proper expropriation proceedings, take private property for its public use, but it must first make compensation to the owner despoiled, and the owner, as well as any other citizens affected by its construction, has a right to insist that future evils, foreseen as likely to follow a particular method of exercising the powers granted the railway corporation, shall be guarded against, if the same can be conveniently and reasonably done, regard being had to the interests of the corporation as of the individual citizen.

“If in the execution of chartered rights it shall become necessary to do a particular act in a particular manner, it may safely do so, though evil may result to others; but if the same act may as well be done for the railway’s interests in another way, and without hurt to others, reason and justice will require the adoption of the nonhurtful method of executing its powers. The execution of its rights in a particular method foreseen to be fraught with peril and injury to others, when another method, equally safe, convenient, and useful, is rejected, will subject the corporation to the imputation of willful negligence.

“With railway corporations as with natural persons employed in the same or like work, it must be true that unnecessary and wanton injury may not be done one by another in the use and enjoyment of his proprietary rights. The rule possesses flexibility and adaptability to all conditions likely to arise is that which guards the right of the landowner to deal with his own as he will, qualified by the duty imposed upon him to so use his own as not to hurt his neighbor, if that be reasonably within his power.”

To the same effect is Holman v. Richardson, 115 Miss. 169, 76 So. 136, L. R. A. 1917F, 942.

In this case there is no contention, either in the pleadings nor shown by the testimony, that any other plans could have been adopted or the work done in any way save the plan adopted and the manner in which it was executed.

The learned circuit judge was correct in granting the peremptory instruction for the defendant.

Affirmed.