McCreight v. Central Drainage Dist.

102 So. 276, 137 Miss. 319, 1924 Miss. LEXIS 227

Opinion

Cook, J.,

delivered the opinion of the court.

This is an appeal from a decree of the chancery court of Oktibbeha county, rendered in an eminent domain proceeding to condemn certain lands belonging to the appellant, and located within the central drainage district of that county; the condemnation being for the purpose of securing a right of way for an extension' of a drainage ditch known as lateral No. 2.

At the March,-1919, term of the chancery court, the drainage commissioners of Oktibbeha county filed a petition averring, in substance, that they had carefully in-vestigated the affairs of the Central drainage district, and particularly that part of the district lying between the head of lateral No. 2 and the Greensboro public road; that said territory was low, flat, poorly drained by natural drainage, and was constantly subject to overflow from adjoining branches; that, for the purpose of relieving these conditions, it was necessary to construct an auxiliary ditch or lateral from a point on the Greensboro road to the head of said lateral No. 2; that said ditch could be constructed at a cost of approximately one thousand six hundred and seventy-seven dollars and thirty cents, as shown by an engineer’s estimate filed therewith, prepared by E. C. Thomas, civil engineer; that said ditch would be five thousand and five hundred feet in length, with a six-foot bottom and a one to oné slope, and that said ditch, constructed along the lines as surveyed by the said E. C. Thomas, would be ample and sufficient to carry off the overflow and drain said territory; that the plans, estimates, specifications, nnd report of the said E. C. Thomas, civil engineer, were filed therewith, showing in detail the character of the proposed ditch, its dimensions, etc., to all of which plans, estimates, specifications, and report specific reference was made, and they were made a part of the petition as fully as if copied therein.

The petition further averred that the proposed ditch was greatly needed for the relief of the conditions existing; that it would be to the best interest of the district, and particularly of the territory adjacent to the proposed ditch, that the same be' constructed as outlined and described in the plans, specifications and report of the said E. 0. Thomas, engineer; that the ditch as outlined would pass over the lands of certain named persons, including the lands of the appellant, and that all necessary rights of way for the proposed ditch could be secured from said landowners without expense to the district. The prayer of the petition was for an order of court authorizing, empowering, and instructing the commissioners to construct said auxiliary ditch, in accordance with the said plans, specifications, estimate, and report filed therewith.

With this petition was filed a written instrument, signed by the appellant, J. E. McCreight, waiving service of process and notice of every kind, and consenting that the petition might be heard forthwith, and such orders or decrees granted thereon as should seem meet and proper to the court. On March 13, 1919, a decree was entered taking the petition under advisement for decree in vacation, and on September 9, 1919, a final decree was granted by the chancellor, adjudging that the construction of a lateral was necessary, and that certain relief should be granted, and authorizing the commissioners to proceed to have such surveys made as in their judgment were necessary and proper, and to have an estimate made of the cost of the entire work, and directing them then to proceed to construct the entire work, but limiting the amount which they might expend therefor to the sum of one thousand dollars and requiring that the entire work contemplated should be completed within that sum.

After the entry of this decree in September, 1919, no further action was taken until October 30, 1922, on which date the commissioners entered into a contract with Gfunn and Saunders for the construction of a lateral over' a route therein particularly described as:

“Commencing at the head of lateral No. 2, in the southeast quarter of the northwest quarter of section 36, township 19, range 13 east, Oktibbeha county,.Miss., and running thence south twenty-five degree west a distance of two thousand nine hundred feet; thence south eighteen degrees west a distance of one thousand mine hundred feet.”

On November 1, 1922, the commissioners filed a petition and report in tlie chancery court, averring that, acting under the directions and instructions of the decree of the chancery court entered on September 9, 1919, they liad proceeded to consider tlie proposed extension to lateral No. 2 of the district, and that, after making a personal inspection of said proposed extension, they found that the route of the proposed extension should be as sot out in the contract with Gunn 'and Saunders, and as herein fully set out; that, after giving notice as required by law, they had let to Gunn and Saunders a contract for the construction of said work; the prayer of the petition being that the chancellor approve and ratify the location and route of said proposed extension, and also approve and ratify the contract and agreement made by the commissioners with said contractors. So far as the record discloses, no action was ever taken on this petition.

On the 9th day of March, 1923, the drainage commissioners filed a petition in the chancery court, averring that an extension to lateral No. 2 of said district had been approved and ordered constructed by the court; that a great portion of said lateral had already been constructed, but it was impossible to complete the construction thereof and empty the water into the head of lateral No. 2, for the reason that the appellant, J. E. McCreight, was the owner of a strip of land over which said lateral was to pass, and he refused to allow the construction of the same, and had ordered that the drainage commissioners, the engineer, and the contractor should not go upon said land; that the best interest of the district required that the necessary strip of land be condemned, and that the former decree of the court had settled and designated tlie proposed route of said extension; that the amount of land proposed to be taken by this condemnation proceedings was one-half acre more or less, and that the same had been appraised by the commissioner as being of the value of twenty-five dollars. The petition described the strip of land to be taken, and prayed for process for the appellant returnable to the March, 1923, term of the court, and that upon final hearing the land should be condemned as provided by law.

Tlie appellant filed an answer to this petition, and at the final hearing a great deal of testimony was offered as to the condition of the territory affected, the natural drainage thereof, the volume of water to be diverted across appellant’s land by the proposed ditch, the resulting damage to appellants land, and other issues. The testimony of the engineer who made the original plans, estimates, specifications, and survey of the proposed extension, which were referred to and made a part of the original petition filed in March, 1919, was offered, as was that of the engineer who surveyed and located the ditch actually under construction, and from the whole testimony it appears, without dispute, that the ditch or canal covered by the contract with Gunn and Saunders, and the ditch as originally surveyed by Thomas, connect with lateral No. 2 near the same point, but that the ditch covered by the second survey extends from that point over a .different route, and in an entirely different direction, from the location of the first ditch, and that it connects with the Greensboro public road at a point between one-fourth and one-lialf mile east of the point where the first ditch connected with this road. At the conclusion of the testimony, the chancellor granted a decree condemning the land of appellant as prayed for in the petition, and assessing the damage at fifty dollars.

There are several questions argued by counsel, but in disposing of this case we think it will only be necessary to consider whether or not a precedent decree of the couid, authorizing the digging of this additional canal and the expenditure of the funds of .the district in paying therefor, was necessary, and, if so, whether the canal proposed by the commissioners, and upon which work was actually in progress, was authorized by the decree of the court made and entered on September 9,1919.

When all the provisions of the drainage law under which this district was organized and was operating are considered together, it is clear that the entire' scheme contemplates that all the operations of the district shall be under the general supervision of the chancery court, and that in that forum the landowner and taxpayer shall have the right and opportunity to present and have passed upon his objections to the surveys, plans,- specifications, and assessments made by the commissioners, and after a district has been organized, and the surveys, plans, specifications, and location of canals, ditches, and drains have been fixed and approved, and the assessment of benefits and damages, etc., have been made and approved, if it is then desired to establish and construct other drains, ditches, and canals, and incur larger expense in so doing, we think the commissioners must first apply to the chancery court for authority so to do, and give the landowners an opportunity to be heard in opposition thereto. In the case1 at bar the commissioners, presumbably conceiving that the law required them so to do, filed their petition asking the chancery court to authorize the construction of this proposed canal. With this petition and as a part thereof they filed a survey and plans and specifications of the proposed canal, showing the exact location, the length, depth, and dimensions thereof, and upon this survey and location of the canal they secured the consent of the landowners over whose land the proposed canal would pass. Upon this petition, and survey, plans, and specifications, they secured a decree of the chancellor authorizing the construction of said lateral or canal.

After the entry of this decree nothing more was done in the matter for more than three years, and then the commissioners let a contract for the construction of a canal over a route entirely different from that covered by the original survey and plans, claiming that this canal was authorized, by the decree of the court rendered in September, 1919. We think the testimony clearly shows that the change in the route of this canal is not a mere deviation made necessary by difficulties of construction, but that it is a total departure from the route authorized by tlie decree, and that until tbe construction of tbe canal over tlie route now proposed is approved by a decree of the chancery court the commissioners have no authority to proceed with the work which they have undertaken. Since we hold that the commissioners are without authority to construct the canal or lateral over the route now proposed, it follows that they have no right to condemn the land of the appellant for a right of way for the. proposed canal, and consequently the judgment of the court below will be reversed and the petition dismissed.

Reversed and petition dismissed.