Opinion
No. 33186.
May 2, 1938. Suggestion of Error Overruled May 30, 1938.
1. INJUNCTION.
Drainage commissioners were properly temporarily enjoined at instance of Highway Commission from destroying or interfering with construction of bridge, even though piers were being placed in drainage canal contrary to plans for bridge presented to commissioners showing that no piling would be placed in canal, since commissioners had no right to take the law in their own hands.
2. HIGHWAYS.
The Highway Commission, which is given power by statute to acquire rights of way for roads and bridges by eminent domain, is in addition an agency of the state government (Code 1930, section 4989 et seq., as amended.).
3. DRAINS.
Drainage districts, which have statutory power of eminent domain to acquire rights of way, are political subdivisions of the state organized to promote public health and to reclaim overflowed lands for cultivation (Code 1930, section 4371 et seq., as amended).
4. EMINENT DOMAIN.
Property devoted to one public use may be taken for another public use in absence of statute expressly forbidding that practice where taking will not materially impair or interfere with existing uses or is not inconsistent with existing uses and not detrimental to the public interest, and it is immaterial that some inconvenience may result to prior occupant if the two uses can stand together.
5. EMINENT DOMAIN.
The rule that power to take property devoted to one public use for another public use must be conferred expressly or by necessary implication applies only where the second use will destroy or injure the use to which the land was originally appropriated.
6. EMINENT DOMAIN.
Where Highway Commission, in constructing new bridge across drainage canal, placed piers in canal so that they obstructed free passage of water, obstruction, if allowed to remain, would collect drifts and damage agricultural lands of drainage district, and bridge could be constructed at almost the same cost without putting any piers in canal, drainage district was properly awarded an injunction restraining commission from proceeding further in construction of bridge as planned and commanding it to remove piers (Code 1930, section 4371 et seq., as amended; section 4989 et seq., as amended).
APPEAL from the chancery court of Tishomingo county. HON. JAMES A. FINLEY, Chancellor.
E.R. Holmes, Jr., Assistant Attorney-General, and Chester L. Sumners, of Corinth, for appellant.
The trial court erred in dissolving the temporary injunction issued on the original bill in favor of the appellants.
The court erred in the finding of facts as shown by the decree, and the evidence does not support the findings of the court.
The facts as found, if true, do not support and are insufficient for injunction on the cross-bill.
It was contended by appellees in lower courts that drainage districts are public corporations, and we do not presume it will be denied here. This court has ruled that under the statute a drainage district is a political subdivision of the state.
Standard Oil Co. v. National Surety Co., 143 Miss. 841, 107 So. 559; Tallahatchie Drain. Dist. v. Yocona-Tallahatchie Drain. Dist., 148 Miss. 142, 114 So. 264.
Therefore, the drainage district canal right of way, being public property, may be taken for other public uses, such as for the construction of a highway across it and a bridge across the canal.
20 C.J., page 605, sec. 91, page 611, sec. 97.
This court has clearly held that public property may be devoted to a different public use.
Canton v. Cotton Warehouse Co., 84 Miss. 268, 36 So. 266; Washington County v. Bd. of Miss. Levee Com'rs., 171 Miss. 80, 156 So. 872.
Supervision over the highways of the State of Mississippi and authority to construct roads and bridges was vested by the legislature in a state highway department and the commissioners appointed for said department by Chapter 122 of the Code of 1930.
Sec. 5006, Code of 1930.
Division of the powers of the government is provided by the constitution of the United States and the State of Mississippi. The courts of the United States, both state and national, have zealously upheld and enforced this division of powers, and the judicial department has never taken any rights to itself except those clearly granted by the Constitution or by the legislature with the required approval of the executive. With the legislature expressly vesting supervision and control of the state highways and the construction thereof in the Highway Department, the appellees are without any right or standing in a court of equity to ask that the commissioners of a drainage district or its attorneys and secretary be given the right to pass upon the plans for the bridges across its canal, and cannot ask the court to step in and supervise the construction of the bridges. If the plans and specifications of bridges are subject to supervision and control by the court, then it follows that the plans and specifications of the road bed itself, as well as the location thereof, would be subject to the same supervision and control of the judicial branch of the government.
Section (b) of Sec. 4006, supra, expressly gives the Highway Department the authority to change, relocate, or alter the highway system, which necessarily includes the bridges, as may be deemed necessary "or economical."
This court has passed upon the question of supervision of roads in the matter involving the jurisdiction of the board of supervisors, and the State Highway Department would certainly have equal if not greater authority over its roads than that vested in the supervisors.
Berry v. Bd. of Suprs., Jefferson Davis County, 126 So. 405, 156 Miss. 629.
Drainage districts were created in Mississippi long after the public road system.
Section 4417, Code of 1930.
There is certainly nothing in the act creating the drainage districts, or giving them authority to cross highways, which would vest them with such title that they could then interfere with the highway's use of its old right of way.
The court erred in granting an injunction on the cross-bill.
Ely B. Mitchell, of Corinth, for appellee.
The appellee in bringing its suit went into the Chancery Court of Tishomingo County, Mississippi, in which court the Yellow Creek Drainage District was organized, and which court has exclusive jurisdiction of all cases brought on behalf of the drainage district or against the drainage district. It asked the Chancery Court of Tishomingo County to enjoin the commissioners of Yellow Creek Drainage District from removing obstructions in the canal of Walker creek tributary. After it has selected its own tribunal and asked for an injunction enjoining the commissioners of Yellow Creek Drainage District, their servants and employes from interfering with the construction of the bridge across their canal, its counsel immediately says that the Chancery Court of Tishomingo County does not have jurisdiction to dissolve an injunction issued by the Chancery Court of Tishomingo County. The very statement itself refutes the argument of counsel for the appellant. He selected his tribunal according to the laws of the State of Mississippi, presented a question of fact before the Chancery Court of Tishomingo County, and, after getting an adverse decree, complains that the Chancery Court of Tishomingo County had no jurisdiction of the cause.
Sections 4401, 4407, 4408, 4417, 6346 and 6347, Code of 1930.
The proper chancery court of the county of the defendant district being sued shall have jurisdiction of all suits brought against such district, and between drainage districts suing unless otherwise provided. The chancery court organizing a drainage district shall have exclusive jurisdiction of all suits brought against such district, unless otherwise herein provided.
Section 4424, Code of 1930.
This court has held that where there are two ways to construct any structure, one way which will cause damage and the other way which will not cause damage, it is the duty in constructing such structure to follow the way that will cause the least damage.
M. O.R.R. Co. v. Tays, 142 Miss. 743.
A principle which underlies the use of all easements is that the owner thereof cannot materially increase the burden of it upon the servient estate, nor impose new and additional burdens thereon.
9 R.C.L. 790, sec. 47; Winslow v. City of Vallejo, 5 L.R.A. (N.S.) 851; Cram v. Chase, 43 L.R.A. (N.S.) 824.
If there is any one principle of law well established in this country, it is that there is a remedy to right every wrong.
Griffith's Chancery Practice, sec. 35, page 39.
It is our settled policy that if equity have jurisdiction of the cause of action it should assume full jurisdiction and settle all disputed questions in one and the same suit as far as within the pleadings, and when necessary the court will allow and may even suggest such amendments to the pleadings as will permit full jurisdiction.
Griffith's Chancery Practice, sec. 36, page 40.
If the piling in this canal is an obstruction as held by the court, which holding is more than fully supported by the evidence, then the Highway Department having an easement across this right of way changed its easement and placed a greater burden upon the servient estate. The placing of this piling in the canal was a trespass prohibited by law.
If a trespass be continuous in its nature and repeated acts of trespass are done or threatened by the same wrongdoer in respect to the same subject matter, although each of such acts taken by itself may not be destructive or inflict irreparable injury, and the legal remedy of such act as it stood alone would be adequate, yet where the legal remedy is inadequate to relieve the injured party from expense, vexation and operation of numerous suits, the chancery court may restrain the wrongdoer by injunction.
Warren Mills v. New Orleans Seed Co., 65 Miss. 391; Moss v. Jourdan, 129 Miss. 598; Donovan v. Pa. Co., 199 U.S. 297, 50 L.Ed. 192, 32 A.L.R. 465; Whitfield v. Rogers, 26 Miss. 84; Coulson v. Harris, 43 Miss. 728; Eskridge v. Eskridge, 91 Miss. 522; Poindexter v. Henderson, Walker 176; East et al. v. Saks et al., 106 So. 185; Little Falls Fiber Co. v. Henry Ford Son, 126 Misc. 126, 212 N.Y.S. 630; Grover v. Falls, 120 Miss. 201; Citizens' Tel. Co. v. Cincinnati N.O. T.P. Co., 18 A.L.R. 615; Lamar County v. Elliott, 107 Miss. 841; Jenkins v. McQuaid, 153 Miss. 185.
In equity proceedings the finding of fact by the chancellor has the force of a verdict and will be disturbed only when clearly erroneous.
Heard v. Cantrell, 100 Miss. 42; Lott v. Hull, 104 Miss. 308; Lee v. Wilkinson, 105 Miss. 358; Bland v. Bland, 105 Miss. 478; Grace v. Purce, 127 Miss. 831; Crump v. Tucker, 149 Miss. 711; Crichton v. Haliburton Moore, 154 Miss. 265; Bradley v. Howell, 161 Miss. 346; Cole v. Standard Life Ins. Co., 170 Miss. 330; Early v. U.S.F. G. Co., 176 So. 720.
The burden is upon the appellant to show by the record that there is no evidence in the record upon which this decree could be based. There is no evidence in the record upon which any other decree could have been based.
Drainage districts are political subdivisions of the state with the right to sue and be sued and with all other rights and powers conferred upon them by the legislature.
10 R.C.L. 91, sec. 80.
In the absence of some statutory provision expressly or by implication forbidding it, property devoted to one public use may under general statutory authority be taken for another public use, where the taking will not materially impair or interfere with or is not inconsistent with the use already existing and is not detrimental to the public.
20 C.J. 405, sec. 91.
The Highway Department had a right to acquire or take an easement across the easement of the drainage district, but that right should have been taken by the authorities through proper action of the lawful constituted officers, that is, the Highway Department should have condemned this easement, paid for it, and used it so as not to interfere with the efficiency of the drainage system of this drainage district. The Highway Department could have used the easement without interfering with the rights of the appellee instead of taking the right of way by force, driving piling in the channel of the stream, and destroying the efficiency of the drainage system.
I.C.R.R. Co. v. State of Miss. ex rel., 94 Miss. 795.
When the Highway Department changed the construction of its easement across the canal without any condemnation proceedings or any consent from the drainage commissioners, they became trespassers and they created a continuous trespass. As long as they divert the water out of the channel and obstruct the free passage of water under the bridge, so long are they trespassing, and such trespass is a continuous trespass.
Laughlin v. Wright Machinery Co., 173 Mass. 310; 92 A.L.R. Anno. Injunction-Trespass, 583; East v. Saks, 106 So. 185.
Argued orally by E.R. Holmes, Jr., and C.L. Sumners, for appellant, and by Ely B. Mitchell, for appellee.
The Mississippi State Highway Commission filed its bill in the chancery court of Tishomingo County against the commissioners of the Yellow Creek Drainage District to restrain the latter from destroying or interfering with a bridge being constructed by the Highway Commission on public highway No. 72 across Walker Canal, a part of the drainage system of the Yellow Creek Drainage District. A temporary injunction was granted. The drainage district answered and made its answer a cross-bill, in which it sought to enjoin the Highway Commission from proceeding further in the construction of said bridge as planned, and commanding it to remove the piers that had been placed in the canal. There was a hearing on the motion of the drainage commissioners to dissolve the injunction, resulting in a decree sustaining the motion and granting the commissioners of the drainage district an injunction as prayed for in their cross-bill. From that decree the Highway Commission prosecutes this appeal.
The original bill averred that the Highway Commission is an arm of the state government carrying out governmental functions — the construction of a comprehensive system of public highways in the state; that the Yellow Creek Drainage District is also a branch of the state government engaged in governmental functions, to wit, the construction of a system of drainage canals in Alcorn and Tishomingo Counties for the purposes of reclaiming swamp and overflowed lands for cultivation and to promote the public health; that the bridge involved was a part of state highway No. 72, crossing the drainage system; that the new bridge was being constructed at practically the same place as the old bridge across the canal; that it was being properly constructed with the view of causing no more obstruction in the canal than existed theretofore; that the drainage commissioners were threatening to remove the piers and would do so if not restrained therefrom, and prayed that the drainage commissioners, their servants and employees, be restrained from doing any act which would impede or hinder the progress of the work or destroy any part already constructed.
The drainage district, in its answer and cross-bill, denied the allegations of the original bill in so far as it alleged that the bridge was being properly constructed and with the view of causing no more obstruction in the canal than existed theretofore, and alleged that the Yellow Creek Drainage District was organized in 1921 by the chancery court of Tishomingo County under chapter 39 of the Code of 1906, section 1682 et seq., and amendments thereto; that there were three creeks in the district — Walker, Yellow and Depoyster; that in canaling these creeks it acquired as right of way forty-one feet of land on each side of the center of the line of the canal; that several months before the Highway Commission began the construction of the bridge in question the drainage commissioners gave the Highway Commission notice by resolution that it owned this right of way and not to trespass upon it; that the Highway Commission later acknowledged, through its engineer French, the receipt of this resolution; that the Highway Commission thereupon forwarded to the drainage commissioners a deed to be executed by the latter to the former conveying a right of way across the right of way of the district for the purpose of the construction of bridges; that the drainage commissioners declined to execute the deed for fear of losing jurisdiction and authority over its right of way, but agreed to give the Highway Commission easements over its right of way, provided it would not place piers within the canal, and that the bridges would be built so that the water would have a free passage thereunder; the drainage commissioners embodied the agreement in a writing which was duly executed and forwarded to the Highway Commission; that the latter refused to execute it; that soon thereafter the local engineer of the Highway Commission brought to the office of the drainage district blueprints of the various bridges to be built in Tishomingo County, which blueprints showed that no piling was to be placed in any of the canals in that county; that he assured the drainage commissioners that such blueprints represented the facts; that, contrary to this representation and understanding, in constructing the bridge in question (which was not yet completed) the piling was driven in the ground across the bottom or lowest level of the stream at an angle of 45 degrees; that there were four of such piers, and in addition they had braces across them; that the piling so placed would obstruct the free passage of the water under the bridge, cause drifts to accumulate, dam up the waters and impound them on the lands of the landowners of the district, which would be permanently injured thereby; that the Highway Commission could lengthen the distance of the spans between the piers without placing any piers in the canal and with very little additional cost, which, if done, would not interfere with the free flow of the waters of the canal.
The evidence was ample to sustain the allegations of the answer and cross-bill. The old bridge torn away by the Highway Commission had no piling in the bottom of the canal, only one on each side in the edge. The Highway Commission constructed two other bridges in the district across the canal, the piers of neither of them were placed in the bottom of the canal. Several months before work was begun on the bridge in question the drainage commissioners used every means in their power to get an agreement from the Highway Commission not to place piling within the canal, and finally the local engineer of the Highway Commission presented to the drainage commissioners for their inspection the plans for the bridge, which showed that no piling was to be placed in the canal. When the piers were being placed there, the drainage commissioners threatened to destroy them with dynamite; the result was the original bill and an injunction restraining them from so doing. Manifestly that injunction was properly issued, for the drainage commissioners had no right to take the law in their own hands.
The chancellor in his decree found the following facts: "That the Highway Department is now constructing a bridge across said canal in said quarter section of land at practically the same place the old bridge was built, but that the Highway Department in building said bridge has constructed the bridge so as to place one bent of four piling at an angle of about 45 degrees across the channel of the canal with brace planks nailed on either side so as to obstruct the free passage of water in said canal, and that the same if allowed to remain in the said canal as now constructed will collect drifts and damage the agricultural lands of said district; that said bridge can be constructed at practically the same cost without putting any piers in the canal." There was sufficient evidence to support such a finding.
In rendering the decree on those facts, did the chancellor apply the correct principles of law? We think this question must be answered in the affirmative. Under the Code chapter on highways, chapter 122, section 4989 et seq., as amended Code 1930, the Highway Commission is given the power of acquiring rights of way for its roads and bridges by eminent domain, and, in addition, it is an agency of the state government. State Highway Comm. v. Gully, State Tax Collector, 167 Miss. 631, 145 So. 351; State Highway Comm. v. Knight, 170 Miss. 60, 154 So. 263. The drainage district chapter of the Code of 1930, chapter 107, section 4371 et seq., which embodies, with amendments, the law under which the Yellow Creek Drainage District was organized, confers the power of eminent domain for the purpose of acquiring rights of way. Such districts are political subdivisions of the state organized to promote public health as well as for the reclamation of overflowed lands for cultivation. Standard Oil Co. v. National Surety Co., 143 Miss. 841, 107 So. 559; Tallahatchie Drainage District v. Yocona-Tallahatchie Drainage District, 148 Miss. 182, 114 So. 264.
We have here, therefore, both the Highway Commission and the drainage district engaged in public functions under the law — what were their respective rights and obligations with reference to this crossing? In the absence of some statute expressly forbidding it, property devoted to one public use may be taken for another public use where the taking will not materially impair or interfere with, or is not inconsistent with, the existing uses and not detrimental to the public interest. It is not material that some inconvenience may result to the prior occupant if the conditions are such that the two uses can stand together. "The rule that power must be conferred expressly or by necessary implication applies only where the second use will destroy or injure the use to which the land was originally appropriated." 20 C.J. 605, section 91; Canton v. Canton Cotton Warehouse Co., 84 Miss. 268, 36 So. 266, 65 L.R.A. 561, 105 Am. St. Rep. 428; Washington County v. Levee Com'rs, 171 Miss. 80, 156 So. 872; City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160, 163. In the Gwin Case the court used this language: "Property already devoted to public use may be again taken or damaged for public use." We have here, under the evidence and the chancellor's finding of facts, a crossing capable of both public uses without material damage to either, provided no piers to the bridge were placed in the bottom of the canal, which construction was not only practical but would not cost substantially more than that undertaken.
Affirmed.