Toler v. Bear Creek Drainage Dist.

I think the chancellor was in error in his holding on both of the points involved in the case. The first objection raised which the majority opinion declines to notice because it was not argued is that the court had no power to organize the district because Bear creek, and the other streams and lakes connecting it with the Yazoo river, were held by the chancellor not to be a navigable stream, and consequently that the organization of the drainage district was not prohibited by section 81 of the Constitution of Mississippi, which prohibits the legislature from permanently obstructing any of the navigable streams of the state. In stating this proposition, one of the attorneys for the appellants said:

"The first objection relates to the power of the legislature to authorize, for drainage purposes, the obstruction of a navigable waterway. It was, and still is, contended that Bear creek is a navigable waterway, the obstruction of which is prohibited by section 81 of the Constitution. The chancellor on the submitted facts found that Bear creek was not a navigable waterway. While his finding as to this fact is contended to be wrong, yet the record is too voluminous and our time is too limited to attempt to establish the contrary. Therefore, on this appeal, that objection, though still urged, shall not be argued by us."

Of course, ordinarily a point not argued by counsel in their briefs or at bar will not be noticed by the court, and will be considered to have been waived. But where, as in the present case, the constitutional provision stands as an insuperable obstacle in the pathway of the court in organizing a drainage district, it cannot be ignored, because to ignore it is to permit the organization of the drainage district and the permanent obstruction of navigable waters which is plainly prohibited by said section 81 of the Constitution: This section reads as follows:

"The legislature shall never authorize the permanent obstruction of any of the navigable waters of the state, but may provide for the removal of such obstructions as now exist, whenever the public welfare demands. This section shall not prevent the construction, under proper authority, of drawbridges for railroads, or other roads, nor the construction of booms ``and chutes' for logs in such manner as not to prevent the safe passage of vessels, or logs, under regulations to be provided by law."

The plan here proposed in organizing the district is to put a permanent obstruction at the entrance of these waters in the Yazoo river. Bear creek and the different lakes constituting the waterway obstructed has long been navigated. The record shows indisputably that it was used for navigation purposes generally for many years, and that even the federal government had appropriated money for the purpose of keeping it in navigable condition as late as the year 1907.

In order to understand the constitutional provision, it would be necessary to understand what was considered a navigable stream at the time the Constitution was adopted. There is no dispute in the record whatever that at the time the Constitution was framed these streams were navigable. There is no dispute whatever in the evidence as to this.

Section 865, Code of 1880, which was in force at the time the Constitution was adopted, provides:

"All rivers, and such of the creeks and watercourses, within this state, as shall have been declared to be navigable streams, by act of the legislature, or by the board of police or board of supervisors of the county in which the same may be, shall be public highways."

It will be seen that any stream that had been theretofore declared to be navigable, either by the legislature or by the former boards of police, or by the then boards of supervisors in the county in which the stream may be, is declared to be a public highway.

Section 866, Code of 1880, provides:

"The board of supervisors shall have power, when the public good may be promoted thereby, to appoint hands, liable to work on public roads, and living within a convenient distance of any navigable stream within their respective counties, to work thereon; and the said board shall divide such stream into convenient districts, and appoint overseers, and assign as many hands thereto as may be properly taken from the public roads; and the laws respecting the working of roads shall apply, in all respects, to the work to be performed on such navigable streams, and to the erection and maintenance of bridges thereon."

It will be seen from this section that it was the duty of the road hands, under the direction of the board of supervisors, to keep the navigable streams clear of obstructions, so that they might be open to the public for the purpose of general use, and all persons had rights equal with others to use the streams for the purpose of navigation.

Section 867, Code of 1880, makes it the duty of overseers to remove all logs and overhanging timbers that may be in or across such streams, and all other obstructions of the navigation thereof. Section 2872, Code of 1880, makes it a criminal offense to obstruct such navigable streams, showing the purpose of keeping them open and free from obstruction for public navigation. These sections have been brought forward into all of the subsequent Codes, and are still statutes of the state.

It may be that in the present case, or any other that may arise hereafter, all of the parties within the district to be organized desire to close the streams to navigation, but every person who may be in the state or who may come into the state has the right to use these navigable streams for his business purposes, and to permit the organization of an extensive drainage district, and to tax the taxpayers therein, and to issue bonds of such drainage district for such purposes, and to leave the question open for future decision, when the whole scheme would be set aside at the suit of some other person, or of some other officer of the state who would be authorized to act for the state therein, would be to work a manifest and unpardonable injustice.

The proof in this record shows without dispute that these streams are full of water for long periods during the year, and there is no proof to show that there has been any diminution whatever in the water supply therein. In other words, they are just as capable of navigation now as they were in 1890 when they were largely used for that purpose.

The present statute, section 7088, Hemingway's Code, (section 4408, Code of 1906), in defining what are navigable streams, provides:

"All rivers, creeks and bayous in this state, twenty-five miles in length, that have sufficient depth and width of water for thirty consecutive days in the year, for floating a steamboat with carrying capacity of two hundred bales of cotton, are hereby declared to be navigable waters of this state."

This statute, it is true, was enacted in the year 1896, being chapter 64, Laws of 1896, after the Constitution of 1890 went into effect.

The record shows that these streams are at flood tide from three to six months in the year, having about twelve feet of flood waters in depth above their normal waters during that period of time.

It is true that the chancellor found that the streams are not navigable, but he did not find these facts not to exist, and could not so find, because they were not disputed, but some time before the organization of the district the Congress of the United States had passed an act declaring these streams nonnavigable and ceased to appropriate money for such navigation. But this did not have the effect of changing the streams as navigable streams for such navigation as they had always been used for. The proof, without any dispute, shows that these streams have been extensively used for commercial navigation. The use of these streams for navigation had been diminished, not because of the insufficiency of the water or for any other natural reason, but purely because the railroad development in the state had largely changed commerce from the channels of waterways to railroad lines, but in the recent years one of the leading railroads passing through this territory has been on the verge of bankruptcy, and has indeed become so unprofitable that its use has been threatened to be discontinued. Should such railroad line be discontinued, the importance of these streams as navigable streams would be restored to their former value and necessity. The section of the Constitution above set out may not be a wise one, but it seems to me that this court, and every other branch of the state government, is powerless to override it.

Coming to the second question which is dealt with in the majority opinion in this case, it seems to me that the majority opinion is clearly wrong, for the reason that the waters are diverted from the basin in which they are accustomed to flow into another basin where they have never flowed until the flood waters reach a height of one hundred eight feet above sea level. The normal height of water above sea level is below ninety-six feet, and when the channels proposed to be constructed are constructed, all of the waters in the Bear creek basin, which is a very comprehensive territory, will pass through these canals into Sunflower river basin, where they never have flowed during such periods.

It is true that when the flood raises above one hundred eight feet the waters would then flow into the Sunflower basin, but it was only the flood waters that flowed therein, whereas, in the present scheme, the waters that are designed to flow through the canals are the stream waters, or natural waters, that flow normally in the Bear creek basin and are not either flood waters or vagrant waters. In other words, Bear creek during such period changes its course entirely, and all of its waters, instead of remaining in the Bear creek basin, are discharged through the canals into the Sunflower basin.

It may be true that the levee will shut out more flood waters from the Sunflower basin than the streams will discharge through the canals into that basin, but there certainly will be a much longer period of time when the waters of the Bear creek basin will flow into the Sunflower basin than would be if the district were not created. Whenever the Yazoo river gets above ninety-six feet above sea level, and at all times until it reaches one hundred eight feet above sea level, these natural waters of the Bear creek basin will flow into the Sunflower basin where they have never flowed before.

While the present decision is distinguishable from the decision in Pompey Lake Drainage District v. McKinney Lake DrainageDistrict, 136 Miss. 168, 99 So. 387, still, some of the principles announced in the two decisions are, in my opinion, inconsistent. In the present case the opinion asserts that inasmuch as the waters of the Bear creek basin would ultimately pass into the Sunflower basin during flood stages, that it is permissible to hasten their flow and cut through the divide. This seems to me to be contrary to the cases heretofore decided.

In discussing the effect of artificial channels which had become in effect a stream by acquiescence for the length of time necessary to constitute prescription and the rights thereunder with reference to such stream, in the opinion in the case of Pompey Lake Drainage District v. McKinney LakeDrainage District, 136 Miss. at page 177, 99 So. at page 399, we said:

"But we think that before it can be treated as a natural stream or watercourse within the meaning of law, so that it may be widened and deepened for drainage purposes, it must be a channel which takes care of the water naturally and normally flowing through the watercourse. In other words, when the course of a stream is entirely changed by an artificial channel so that all of the water passing through the original channel passes through the artificial channel and continued under such conditions as would confer rights by prescription, then such artificial channel would be treated as though it were originally in that water channel. But where only a part of the water of the natural watercourse is taken through an artificial channel, or diverted by an artificial channel, the rights acquired by prescription are limited by the character and condition of things existing through the prescriptive period. It might be that an artificial channel would carry only a small part of the waters of a natural watercourse during the prescriptive time and the conditions in existence might not be objectionable, but, on the contrary, might be beneficial. But after the prescriptive period had passed the channel and water cannot be materially increased to the detriment of other persons having rights in the stream. It has never been the law, so far as we are advised, that water of a watercourse could be changed and diverted so as to entirely change the watercourse to the damage of other property owners without compensation for such damages, if it could be done at all."

In the case before us the court now holds that this situation may be changed, provided such change would not carry more water into the Sunflower basin than was carried into it during the flood period when the Yazoo river reached one hundred eight feet above sea level and higher. In other words, as I understand, it has been the law heretofore that you could not change natural waters or stream waters from their basin at all regardless of comparative damage. The proposed district would certainly carry these waters into the territory of the Sunflower basin for a much longer period of time than they would be flooded by the waters above one hundred eight feet. Of course, under the decision, if this is done, and if it results in largely damaging the property owners in the Sunflower basin, there can be no remedy, because the law does not provide for compensation, and, as I understand, this must be done under section 17 of the Constitution of 1890, whenever waters are diverted and property is thereby damaged. The law does not take cognizance of benefit in assessing these damages, nor does it compare and set off one damage against another. If the Bear creek basin is entitled to empty its streams and surplus waters into the Sunflower basin, then any other territory would have the same right under the same conditions, and the result may be to utterly ruin the property owners on the lower reaches of Sunflower river. The property owners outside of the district are not given a hearing under the statute, and there is no scheme provided for paying their damages if they are in fact damaged by such diversion. I think, if such should prove to be the fact, these property owners could come into the chancery court and have the district abated and the canals filled up at ruinous expense.

I think my position is sustained by the following authorities:Quitman County v. Carrier Lumber Co., 103 Miss. 324, 60 So. 326; Thompson v. Railroad Co., 104 Miss. 651, 61 So. 596;Leflore County v. Cannon, 81 Miss. 334, 33 So. 81; Liles v.Cawthorn, 78 Miss. 559, 28 So. 834; Ham v. LeveeCommissioners, 83 Miss. 534, 35 So. 943; I.C. Railroad Co. v.Miller, 68 Miss. 760, 10 So. 61; A. M.R.R. Co. v. Beard,93 Miss. 294, 48 So. 405; Corley v. Levee Commissioners,95 Miss. 617, 49 So. 266; Hughes v. Levee Commissioners (Miss.), 27 So. 744; Duncan v. Levee Commissioners, 74 Miss. 125, 20 So. 838; Richardson v. Levee Commissioners, 77 Miss. 518, 26 So. 963; Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; Learned v. Hunt,63 Miss. 373; Belzoni Drainage District v. Winn, 98 Miss. 359, 53 So. 778; Railway v. Bloom, 71 Miss. 247, 15 So. 72; King v. Vicksburg Ry. L. Co., 88 Miss. 456, 42 So. 204, 6 L.R.A. (N.S.) 1036, 117 Am. St. Rep. 749.