Dick v. Atchafalaya Drainage & Levee Dist.

113 So. 897, 147 Miss. 783, 1927 Miss. LEXIS 359

• Court: Mississippi Supreme Court
• Decided: March 21, 1927
• Docket: No. 26321.
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

Appellant sued the appellee in the court below for damages to his land, caused by the construction of a levee by the district. A demurrer to the declaration was overruled. The defendant filed a plea of the general issue and three special pleas, to one of which the appellant demurred. This demurrer was overruled, and, on the appellant declining to plead further, the case was dismissed. The appellant complains of the overruling of the demurrer to this plea, and the appellee, by cross-assignment of error, complains of the overruling of his demurrer to the declaration.

The declaration alleges, in substance, that-the drainage district was created in 1914 under chapter 269, Laws of 1914, and all of the work contemplated at its creation was completed during the year 1915.; that in 1922 the commissioners of the district, without the appellant’s consent, and without paying him damages thereby to be inflicted upon him, entered upon his land and constructed a levee extending about a mile across his land. The damage soug’ht to be recovered is the value of the land taken for the levee and damages to other of the appellant’s land caused by the construction of the levee.

The ground of the demurrer to this declaration was that it does not appear from the declaration that the commissioners were authorized to construct the levee therein complained of, and consequently the district is not re sponsible for the damage to the appellant thereby caused. This demurrer should have been sustained.

A public corporation, created in invitum for the purpose of discharging a public function, is liable only for the authorized acts of its officers and agents, in the absence of a statute otherwise providing. Stephens v. Beaver Dam Drainage District, 123 Miss. 884, 86 So. 641, and authorities there cited. Sustaining this demurrer would not necessarily have resulted in the dismissal of the case, for the appellee would then have had the right to have amended his declaration; consequently it will be necessary for us to also consider and determine the questions growing out of the overruling of the appellant’s demurrer to the appellee’s plea.

This plea alleges, in substance, that in November, 1921, the commissioners of the district filed a plea in the chancery court setting forth the necessity for the construction of the levee here complained o'f according to plans, specifications, and estimates o'f the cost thereof made by the engineer of the district, and also that the construction of the levee would not necessitate any additional assessment of benefits, and prayed that notice thereof be given by publication; that publication was duly made; that no objection to the construction of the levee was made by any of the landowners of the district, and a decree was rendered authorizing its construction, because of which the matters here complained of became res adjudicata. One of the grounds of the demurrer to this plea is that it does not allege either payment to the appellant of damages which the construction of the levee would inflict upon him, or set forth any fact which would estop him from now demanding the payment thereof.

The contention of the appellee is that the failure of the appellant to appear pursuant to notice so to do, and object to the construction of the levee; was a waiver by him, not only of any objection to the construction of the levee, but also to any claim for damages that he might sustain by reason thereof.

Chapter 269, section 13, Laws of 1914 (section 4468, Hemingway’s Code), authorizes the “extending, widening or deepening the ditches, from time to time” by a drainage district, and the word “ditch” is made, by section 4478, Hemingway’s Code, to include levees. The procedure thereof is not clear, but, assuming, as counsel here seem to do, that it is that provided for the original construction of ditches, levees, etc., then the procedure which should have been here followed, is that outlined in section 7, chapter 269’, Laws of 1914, and section 8 thereof as amended by chapter 271, Laws of 1914 (sections 4445 and 4446, Hemingway’s Code). The first of these sections provides for the making by the commissioners of a drainage district of an assessment roll immediately after the creation of the district, on which they shall note the assessment of benefits and damages to the landowners, and provides that:

“When said commissioners return no assessment of damages as to any tract of land it shall be deemed a finding by them that no damages will be sustained. ’ ’

The second of these sections provides:

“That any property owner may accept the assessment of damages in his favor, made by the commissioners, or acquiesce in their failure to assess damages in his favor, and shall be construed to have done so unless he gives to said commissioners within thirty days after the assessment is filed, notice in writing, that he demands assessment of his damages by jury.”

The appellee’s contention in this connection is that the failure of the commissioners to return an assessment of damages to the appellant’s land must be deemed, under the statute, to have been a finding that no damages would accrue thereto. The fallacy of this contention is that the failure of the drainage commissioners to return an assessment for damag’es is made by the statute the equivalent of a finding that no damages will be sustained when, and only when, such failure appears from an assessment roll made pursuant to the statute, on which the commissioners must set forth all damages to the land in the district assessed by them.

It is true that no additional assessment of benefits was here made, but the absence of any necessity therefor did not and could, not relieve the drainage commissioners of the duty imposed on them of assessing damages to the land.

The demurrer to the plea should have been sustained.

Reversed and remanded.