Citation Numbers: 26 S.W.2d 887, 181 Ark. 564
Judges: Hart
Filed Date: 4/14/1930
Status: Precedential
Modified Date: 10/19/2024
STATEMENT OF FACTS.
The circuit court sustained the demurrer of Drainage District No. 7 of Poinsett County to the amended complaint of R. H. and Eva Hogge, filed in an action of trespass for damages to their lands resulting from the construction by the defendant of levees and dams to collect the water of certain rivers and lakes which caused them to flow back on the lands of the plaintiffs, and thereby permanently injure them and destroy the crops on them. The complaint contains numerous paragraphs, and we shall only set forth the substance of the allegations which we deem material to a decision of the issues raised by the appeal.
Plaintiffs are the owners of a tract of land in Craighead County, and brought this suit for damages for permanent injury to their land and the loss of the crops growing thereon. Defendant, Drainage District No. 7 of Poinsett County, is a levee and drainage district including a large part of Poinsett County, and was duly organized pursuant to the provisions of act 193 of the Acts of the General Assembly for the year 1917, and later amendatory acts. The said levee and drainage district extends from the foot of Crowley's Ridge on the west side of Poinsett County to Mississippi County on the east, and extends from the Craighead County line on the north to the Cross and Crittenden County line on the south. A map is filed with and made an exhibit to the complaint showing the boundary of the district and the nature of the improvement contemplated. *Page 566
The drainage and levee district was created for the purpose of draining and reclaiming a vast quantity of swamp and overflow lands within its boundaries. St. Francis River rises in the State of Missouri, flowing southward into the State of Arkansas, entering Poinsett County on the north, and leaving it on the south boundary line of the county. The river flows in a southerly direction through the county. St. Francis Lake is situated in the northern part of the district, and Little River flows through the northeastern part of the district. Little River also rises in the State of Missouri, and flows in a southerly direction through the northern and eastern part of said district. What is called "Righthand Chute" was constructed to carry water from Little River to St. Francis Lake. The lake is a basin into which is drained water from a large quantity of what is called sunk lands. St. Francis River is a navigable stream.
Said levee and drainage district constructed a large reservoir by a levee which was constructed on the west side of St. Francis River, commencing at the line between Poinsett and Craighead counties and extending southward to about the middle of the county. Another levee was constructed on the right bank of Righthand Chute, and extended in a southwesterly direction to near the center of the county. A dam was then constructed across St. Francis River which formed the southern boundary of the reservoir. At the southwest extremity of the reservoir a floodway was constructed extending southward to near the southern boundary line of the county. It was a half a mile in width at the foot of the reservoir and contracted to 100 feet in width at its mouth. The floodway is something over half a mile from St. Francis River, and about a half a mile from St. Francis Lake. The waters from the lake and the river do not enter the floodway until they have overflowed the banks of both the river and the lake.
By the construction of the reservoir, vast quantities of water have been collected which formerly flowed elsewhere, *Page 567 and this has caused the waters to rise and flow back on the lands of the plaintiffs which are situated in Craighead County, Arkansas, outside of the limits of the district, and which were not subject to overflow prior to the construction of said floodway and reservoir. During the middle of June and July, 1928, the defendant, by the construction of said levee and reservoir, obstructed the flow of the waters of St. Francis River and impounded the same to so great an extent as to cause said waters to flow back and completely overflow the lands of the plaintiffs and destroy their crops.
Plaintiffs elected to stand upon their complaint. Whereupon judgment was rendered against them for costs, and their complaint was dismissed. From the judgment rendered this appeal was taken.
(after stating the facts). The demurrer admits that plaintiffs' lands have been damaged for a public use, and that the damage has not been ascertained or paid. This court has held that improvements for the protection of river valleys from overflow by building levees and draining them by constructing ditches may be united in one improvement district. The court has also held that a drainage and levee district, after building levees on each side of a river and constructing a reservoir thereby, has no right to build a dam at the outlet of the basin between the lower ends of the levees so as to cause flood waters to flow back and destroy the use of land for agricultural purposes; and that for injuries so caused, the landowners are entitled to compensation. Sharp v. Drainage District No. 7,
In these cases the court had under consideration damage caused by this same levee and drainage district. A distinction is sought to be made between the principles of law as applicable to these cases and the present one *Page 568 in that the lands in these cases were situated within the boundaries of the levee and drainage district, while in the present case they are situated in another county and without the limits of the drainage and levee district. This does not make any difference. There can be no doubt that obstructing a navigable or nonnavigable flowing stream and thereby flowing the water back upon the land of another is such a damage as entitles the owner to compensation.
While this court is thoroughly committed in numerous cases to the doctrine that reclaiming lands bordering up on flowing streams by levees and drainage districts is a work of great public importance and should be encouraged, whenever the courts can do so without violating legal principles, in order to develop our State, still there are settled principles of law which courts cannot ignore. The established rule is that the ordinary course of flowing water cannot be lawfully changed or obstructed for the benefit of one class of persons to the injury of another without compensation in damages. Taylor v. Steadman,
In Ex parte Martin,
Article 2, 22 of our Constitution expressly provides that private property shall not be taken, appropriated, or damaged for public use without just compensation therefor. Numerous cases including levee and drainage *Page 569 cases are cited in the footnote of the section to the effect that under this provision the inquiry is no longer confined to the question whether there has been a public invasion or appropriation of private property for public use, but that compensation may be recovered for any damage of a permanent nature done to the property.
If a drainage district actually takes land, compensation must be made or provided for before the land is appropriated; and if the district concedes that damage will result to lands by the construction of the improvement, such damages may be assessed under the law of eminent domain or by the common-law remedy of the owner in an action for trespass on the land. If the levee and drainage district does not concede that damages will result from the construction of the improvement, an action for damages may be brought by the landowner, when the improvement is constructed, to determine the question whether his lands will be permanently injured, and, if so, to recover the damages. This is in application of the provision of the Constitution above referred to that private property cannot be taken or damaged for a public use without just compensation. Bradbury v. Vandalia Levee and Drainage District,
This principle has been recognized and applied by the Supreme Court of the United States in Pumpelly v. Green Bay M. Canal Co., 13 Wall. 166,
"The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision, and that the damage is a consequential result of such use of a navigable stream as the government had a right to for the improvement of its navigation. It would be a very curious and unsatisfactory result if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the Government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common-law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that, if the Government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction, without making any compensation, because, in the narrowed sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for the invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors."
Again, in United States v. Lynch,
In United States v. Cress,
Again in Sanguinetti v. United States,
In the present case, under the allegations of the complaint, the injury to the land was not temporary, but permanent. The customary use of the land was agricultural; and, under the allegations of the complaint, the overflow from the backwaters was the direct and immediate result of the construction of the levees and the dam across the St. Francis River. The demurrer admits these allegations to be true, and the action of the drainage and levee district constituted an actual, permanent injury to the land, and not merely a temporary injury to it. Hence there was a damage to the land within the meaning of *Page 572 the section of the Constitution referred to, and the district was liable for the amount of damages suffered.
Some argument is made that the damage might have been caused by the construction of drainage improvements in Craighead County, but these matters cannot be considered in the present appeal. It was not incumbent on the landowner to show the particulars in which the construction of the levees and dam would cause the waters to flow back on his land. That would be to plead evidence. It was not necessary for him to negative the fact that the injury was not caused by the construction of other improvements. It was only necessary for him to allege that, by the construction of the levees and dam across St. Francis River, a reservoir was erected which collected vast quantities of water which heretofore had flowed in other directions, and thereby caused the waters to be collected in the reservoir and rise to an abnormal height, and to flow back upon the lands of the plaintiffs, causing permanent injury thereto and to their crops thereon.
Counsel for the defendant insist that the case falls within the rule announced in City Oil Works v. Helena Improvement District No. 1,
Counsel also rely on the case of McCoy v. Plum Bayou Levee District,
Finally, it is insisted that the complaint shows on its face that the cause of action is barred by the statute of limitations. We do not agree with counsel in this contention. The complaint alleges that during the months of June and July, 1928, the defendant by the construction of said levees and their reservoir obstructed the flow of the waters, and impounded the same in said reservoir to so great an extent as to cause them to flow back and completely submerge the lands of the plaintiffs and to destroy the crops thereon. The original complaint was filed on July 16, 1928, and the amended complaint on December 17, 1928. Thus, it will be seen that the complaint does not show that the cause of action was barred.
Inasmuch as the judgment must be reversed and the cause remanded for further proceedings, we will decide what statute of limitations is applicable. Counsel for the plaintiffs claim that 6950 of the Digest which provides that all actions for trespass on lands shall be *Page 574
brought within three years after the cause of action shall accrue. On the other hand, counsel for the defendant claims that 3942 of the Digest applies. This section provides that all actions for the recovery of damages against any levee or drainage district for the appropriation of land or the construction or maintenance of other levees or drains shall be instituted within one year after the construction of such levees or drains. This is a special statute limiting the time when such actions may be brought against levee and drainage districts, and, although it was passed before the enactment of the statute under which the present district was organized, yet it was in its terms very broad and comprehensive, and applies to all drainage districts which may hereafter be created whether under special or general acts, where no other statute of limitations is provided. See Young v. Red Fork Levee Dist.,
Therefore, the judgment will be reversed, and the cause will be remanded with directions to the circuit court to overrule the demurrer, and for further proceedings according to law. It is so ordered.
Sanguinetti v. United States , 44 S. Ct. 264 ( 1924 )
United States v. Cress , 37 S. Ct. 380 ( 1917 )
Fort Worth Improvement District No. 1 v. City of Fort Worth , 106 Tex. 148 ( 1913 )
Board of Directors St. Francis Levee District v. Home Life &... , 176 Ark. 558 ( 1928 )
Bohannon v. Camden Bend Drainage District , 240 Mo. App. 492 ( 1948 )
Smith v. Arkansas Irrigation Company , 200 Ark. 1022 ( 1940 )
FRANCIS DRAINAGE DISTRICT v. Austin , 296 S.W.2d 668 ( 1956 )
Keith v. Drainage Dist. No. 7 of Poinsett County , 183 Ark. 384 ( 1931 )
Drainage Dist. 7 of Poinsett County v. Hutchins , 184 Ark. 521 ( 1931 )
Renninger v. State , 70 Idaho 170 ( 1950 )
Drainage District No. 7 v. Haverstick , 186 Ark. 374 ( 1932 )