페이지 이미지
PDF
ePub

(232 S.W.)

No subsidence has occurred in the old levee in front of the mill, since the construction of the new levee behind it. Accretions are forming in the river in front of the mill and willow trees are growing up there.

The jury returned a verdict for the plaintiff and assessed the value of the land taken by it in the sum of $60.

From the judgment rendered, the defendents have duly prosecuted an appeal to this court.

district and the engineers were witnesses for and the building of the levee across the init at the trial of the condemnation proceed-dustrial track, practically destroyed the ings. According to their testimony the levee value of the mill, and made it impracticable was first constructed in front of the oil mill to operate it. of the defendants and the levee protected the mill from the high waters of the Mississippi river. There was a subsidence in the levee. By this is meant that the levee sank down, and the cause of it was the soft foundation. The subsidence was in that part of the levee in front of the mill. The commissioners of the levee district expended about $20,000 in trying to repair and maintain the levee in front of the oil mill. They were unable to do so, and after the levee had sunk down again and a part of it caved into the river, it was deemed advisable to construct the levee behind the oil mill. In doing this, they used about six-tenths of an acre of the land on which the oil mill was situated and built the levee across an industrial railroad track which had been extended from the main track of the railroad company to the oil mill for the purpose of carrying freight to and from the mill. This left the oil mill in front of a levee 60 feet high and without means of carrying its freight from the mill to the tracks of the railroad company. The value of the land upon which the mill was situated was $1,000 per acre.

According to the testimony of G. W. Willey, the president and manager of the oil mill, his company was engaged in crushing cotton seed and in the cotton seed oil business. It is impractical to operate an oil mill of that size without an industrial track. After the levee was constructed behind the oil mill it destroyed the industrial track so that the company was unable to move its freight to and from the mill to the railroad. It was impractical to operate the mill after the levee had been constructed across its industrial track so that cars could not be brought from the railroad track to the mill for the purpose of loading and unloading. The value of the plant before the levee was constructed behind it was $70,000. After that its value was practically destroyed, and it was necessary to sell the machinery piece by piece.

He further stated that this would have been prevented if the old levee had been permitted to remain. According to his testimony also, the construction of the new levee made it impossible to operate the plant. The reason given was that the levee occupied that portion of the ground that had been formerly used for trackage purposes, and the construction of the levee, which was 60 feet high across the industrial track leading into its mill, damaged the property the whole value of the mill. The reason that the taking deprived them from operating the mill was because it was impossible to maintain thereafter a railroad connection. In short, the taking of the particular piece of land

Moore & Vineyard and W. G. Dinning, all of Helena, for appellants.

P. R. Andrews and J. G. Burke, both of Helena, for appellee.

HART, J. (after stating the facts as above). There is no conflict in the testimony that it was necessary to construct the new levee in order to protect the lands within the district from the overflow of the Mississippi river. It is conceded that the commissioners acted in good faith in locating and constructing the new levee, and that this was within the power of the commissioners under the act creating the improvement district.

The evidence shows that the levee as originally constructed was between the oil mill of the defendants and the Mississippi river. So it may be said that the oil mill was on the inside of the levee. By the construction of the new levee the oil mill was placed outside of the levee; in other words, the oil mill of the defendants is between the new levee and the Mississippi river. There was an industrial track extending from the oil mill of the defendants westward to the main line of a railroad. The levee was constructed across the industrial track on a part of the land of the oil mill. The levee as constructed was 60 feet high and destroyed entirely the use of the industrial track of the oil mill; so that communication from the mill with the railroad by cars operating on the industrial track was entirely cut off.

[1] In instructing the jury at the request of the plaintiff, and in refusing to give instructions asked by the defendants, the court limited the damages to be recovered to the value of the land actually taken in the construction of the levee, and denied the defendants the right to recover on account of the levee being built across the industrial track running from the main line of the railroad to the oil mill of the defendants. This was error. The ruling on this point would have been correct if the uncontradicted evidence had shown that the practical use of the oil mill had been destroyed on account of its being outside of the levee by the construction of the new levee.

Court of the state of Mississippi. A section of the Constitution of that state excludes compensation for damages accruing to land "because it is left outside the levee." The court said that the words used in the Constitution presents the idea of defenselessness against the ravages of the Mississippi

In McCoy v. Bd. of Dir. of Plum Bayou (other condemnation proceedings. This rule Levee Dist., 95 Ark. 345, 129 S. W. 1097, 29 is supported by the decisions of the Supreme L. R. A. (N. S.) 396, the court held that a levee district may rightfully build its levee across depressions, swales, and low places so as to prevent the escape of flood water from a river into surrounding low lands sought to be protected, though it has the effect of raising the water higher on lands between the levee and river, without becom-river. ing liable to the owner of such intervening lands so damaged.

[2] The court further held that a levee district, which builds a levee so as to protect lands from overflow of the waters of a stream at floodtime, will not, under article 2, § 22, of the Constitution of 1874, providing that private property shall not be "taken, appropriated or damaged for public use, without just compensation therefor," become liable for injuries to land lying between the levee and the river resulting from the flood water being raised higher between the levee and the river than before the levee was constructed.

In Jackson v. United States, 230 U. S. 1, 33 Sup. Ct. 1011, 57 L. Ed. 1363, and Hughes v. United States, 230 U. S. 24, 33 Sup. Ct. 1019, 57 L. Ed. 1374, L. R. A. (N. S.) 624, the court held that the United States is not responsible for damages by overflow or for failure to construct additional levees along the Mississippi river so as to afford increased protection from increased overflow caused by the levees that were constructed by state and federal authority at other points; nor do such damages amount to taking the land overflowed for public use within the meaning of the Fifth Amendment.

In Duncan v. Board of Mississippi Levee Com'rs, 74 Miss. 128, 20 South. 839, the court said:

"All damages, therefore, which accrue to lands from the ravages of the river because not protected against it by the levee, are not to be compensated for. But damages produced by independent causes other than being left outside the levee, if, in their nature, allowable within the rules of law, are still recoverable."

Again, in the case of Richardson v. Levee Com'rs, 68 Miss. 539, 9 South. 351, the court held that the landowner is not entitled to compensation because the construction of the levee renders the land lying between it and the river practically worthless for agriculture and necessitates the removal of houses to the protected side of the levee, as these are consequential damages. In discussing the question the court said:

"The landowner is not entitled to damages because of a failure to so place levees as to protect his land from the water of the Mississippi, or because the levee may prevent such water from flowing off as it otherwise would, and may deepen the water in an overflow on the

land between the embankment and the river. These are consequences of the situation, and the authorized effort to promote the general good by the construction of levees, and must be borne, because they are unavoidable in the nature of things. The legislative scheme is to protect against water from the Mississippi river by an embankment sufficient for the purpose, and it is to be put where the board intrusted with the execution of the scheme may deter

Under the rule announced in those cases, the landowner is not entitled to damages because of the failure to so construct the levee as to protect his land from the waters of the Mississippi, or because the levee as constructed may prevent such water from flow-mine; and the landowner must submit to any ing off as it otherwise would, or it may inconvenience or disadvantage or loss resultdeepen the water in an overflow on the land between the embankment and the river.

The intention of the Legislature was to protect the lands in the improvement district against the waters from the Mississippi river by constructing a levee for that purpose and if it was necessary to construct the levee so as to leave property between it and the river, this would in the very nature of things be unavoidable. Hence it has been held that the landowner must submit to the consequent loss resulting to him as his misfortune to be borne for the general good.

[3] Therefore the levee district is not liable for damages inflicted upon the land by the Mississippi river. But it does not follow that the levee district should not be liable for damages produced by independent causes other than being outside of the levee, if these elements of damages are proper in

ing to him consequentially, as his misfortune, to be borne for the general good, to which individual convenience must be subordinated, except where it is otherwise provided. Commissioners v. Harkleroads, 62 Miss. 807. of the scheme in confining the water of the rivThat damage caused by the success

er is excluded seems clear, and has already been announced. That all other damage which is not remote and arises directly from the taking of part for levee purposes, resulting to the owner's adjacent land immediately from the constructing of the levee, is to be compensated for, seems as clear as the denial of damage by the river. This is consonant with natural justice, and it may be assumed that it was the legislative purpose to secure to the owner whose land is taken for a levee indemnity for all damage done him as to the adjacent land he owns, not arising from the accomplishment of the object of the levee, and directly produced by depriving him of so much

(232 S.W.)

of his land as is taken from him, and convert- was materially injured by being placed outing it into such a shape as to do harm to his side of the new levee, still it was practical adjacent land. We are not willing to declare a to operate it, if its industrial track had not rule more precise than this; for, while there been destroyed by the construction of the new may be a general resemblance in all cases of levee. This shows that the construction of land near the river there must be individual differences, and each must be governed by the new levee across the industrial track its own peculiar circumstances, subject to the was an independent cause which rendered general rules announced." the oil mill property valueless as such and made it impracticable to operate it.

[5] The error in the instructions of the court evidently arose from the fact that it considered the construction of the levee across the industrial track as a mere incident instead of an independent cause producing damages. It is true the only practical way

It results from these views that, if the undisputed evidence had shown that the oil mill of the defendants had been rendered practically useless by the construction of the new levee so as to place the mill outside of the levee and the mill could not thereafter be operated, the owner could not recover dam-to construct the new levee was to build it ages for the consequent depreciation in the value of his property or the cost of removing the mill and its machinery to another site where the mill could be operated. The reason is that the damages suffered under such a state of the record would follow as an incident to the construction of the levee so as to leave the property outside of its protection.

across the industrial track. The evidence for the defendants shows that such construction damaged their oil mill property because it prevented the defendants from carrying cars of freight to and from the oil mill over the industrial track. Manifestly this was not damage accruing because of the oil mill property being left outside of the levee, but the damage accrued because of the construction of the levee over the industrial track. In short, this damage was caused, not because the property of the oil mill company was unprotected by the levee, but it was caused by the levee itself. Whether inside or outside of the levee, the damage to the oil mill in this respect was caused by the building of the levee itself, and not by reason of the fact that the oil mill was left outside of the levee.

[4] The undisputed evidence in the case at bar, however, does not show that the oil mill was rendered valueless as an oil mill because the levee was constructed so as to leave it on the outside of the levee. It is true there is some confusion in the testimony on this point, but, when the evidence is given its strongest probative force in favor of the defendants, it does not appear to us that the oil mill could not be operated at all because the construction of a new levee placed it be-The facilities afforded by the industrial tween the levee and the Mississippi river.

track for the transportation of freight between the railroad and the oil mill was a valuable property right which belonged to the oil mill company, and its injury by the

situated and the construction of the levee across it constituted a damage to the remaining property for which the defendants should be compensated. Chicago, S. F. & C. Ry. Co. v. McGrew, 104 Mo. 282, 15 S. W. 931; N. Y., N. H. & H. R. R. Co. v. Blacker, 178 Mass. 386, 59 N. E. 1020.

In the latter case the court in discussing a similar question said:

The evidence does show that the oil mill was greatly depreciated in value on this account. According to the testimony of the defendants' witnesses, it was rendered imprac-appropriation of the land on which it was tical to operate it because the new levee was constructed across the industrial track leading from the railroad to the oil mill, and thus the oil mill company was prevented from carrying cars over the industrial track to and from its mill for the purpose of loading and unloading freight. The evidence for the defendants shows that it was impractical to operate the oil mill without this connection. According to their testimony, however, it was not wholly impractical to operate the oil mill, because it was on the outside of the levee. To sum up, the evidence shows that before the new levee was constructed the oil mill was worth $70,000. Suppose the uncontradicted evidence had shown that the construction of the new levee rendered the property valueless as an oil mill, and that it could not be operated as such on account of the ravages of the waters from the Mississippi river; then the defendants would be only entitled to recover the value of the land taken, and the instructions given by the court would have been correct.

It is fairly inferable, however, from all the evidence, that while the oil mill property

"The fact that his land was situated on the line of the railroad, and at a level with it, so that spur tracks could be (as they were) built, running onto it, made it valuable for any business which could be economically carried on by

having freight delivered to it directly from the cars without the expense of handling and carting. That was an element which in fact gave, or might have given, value to this land, and which could properly be considered in determining what the fair market value of it was."

The holdings in those cases are in accord with our own decisions. In K. C. Southern R. Co. v. Boles, 88 Ark. 533, 115 S. W. 375, the court held that, although several lots of land sought to be condemned for railway purposes

are separated by an alley, they may be treated as parts of a single tract for the purpose of determining the damages if the testimony shows that they are used as a unit.

In St. L., Ark. & Tex. R. R. v. Anderson, 39 Ark. 167, the court held that the elements of damages in condemnation proceedings are not alone the market value of the land actually appropriated, but include also the injury to the owner of the remaining land arising from the increased difficulty of communication between the parts of the several tracts, etc.

Appeal from Clark Chancery Court; Jas. D. Shaver, Chancellor.

Suit by Thomas N. Wilson against Mrs. S. A. Pannell and another. From decree dismissing bill, plaintiff appeals. Affirmed.

J. H. & D. H. Crawford, of Arkadelphia, and T. D. Crawford, of Little Rock, for appellant.

J. E. Callaway, of Arkadelphia, for appellees.

HUMPHREYS, J. Appellant instituted It follows that the court erred in not sub-suit against appellees in the Clark chancery mitting to the jury as an element of damages court, to quiet his title to lot 12 in block 24 the loss suffered by the defendants on account in Browning's survey of Arkadelphia, allegof the levee having been constructed across ing that he was the owner of the legal title, the industrial track so as to cut off connection and that appellees claimed title thereto between the oil mill and the railroad by without right, and that their claim cast a means of the industrial track. cloud upon his title.

For this error the judgment must be reversed, and the cause remanded for a new trial.

SMITH, J., dissents.

(149 Ark. 81)

WILSON V. PANNELL et al. (No. 12.) (Supreme Court of Arkansas. May 23, 1921. Rehearing Denied July 4, 1921.)

1. Equity 65(2)-Purchaser from husband, who abandoned defendant wife, debarred from relief under clean hands maxim.

The purchaser of a lot from a husband, who abandoned his wife and lived apart from her for 23 years, while she had actual possession of the lot, paid the taxes, and a personal indebtedness of her husband to prevent his creditors from taking the lot, having known the facts, is debarred from quieting his title to the lot as against the wife and her lessee under the doctrine that only those with clean hands may enter equity and obtain relief. 2. Quieting title 51-Technical error under issues to render decree for cross-complainant as against plaintiff.

One of the appellees, Arkadelphia Motor Company, answered that it was in possession under a lease from its coappellee, Mrs. S. A. Pannell. The other appellee, Mrs. S. A. Pannell, answered, setting up, among other defenses, facts, which, if true, constituted an estoppel on the part of appellant to assert his title in a court of equity.

The cause proceeded to a hearing upon the pleadings and evidence, which resulted in a decree dismissing appellant's bill for the want of equity, from which decree an appeal has been duly prosecuted to this court, and the cause is here for trial de novo.

There is little or no dispute in the testimony, and, in substance, the record reflects that, in the year 1897, the then owner of said lot, who is the husband of appellee, became enamoured of another woman, and abandoned his family, consisting of his wife and three small boys, and moved with his paramour to Oklahoma City, where they have since lived in adultery; that, after that time, he never contributed to the support of his family or communicated with his lawful wife, the appellee herein; that, a short time after the abandonment, he returned, disposed of all his assets, except the lot in question, and appropriated the proceeds thereof to his own use, leaving unpaid debts to the amount of $800 or $1,000; that, prior to the abandonment, he had run a blacksmith shop upon the lot in question, which had a high fence around it; that, immediately after the abandonment, his wife, Mrs. Pannell, took possession of the lot and shop in question and through her boys conducted the blacksmith shop for 15 years; that the city compelled her to move the shop off the lot, after which time she rented it for a small rental to other parties, and, at the time of the institution of the suit, had leased it to her coappellee, Arkadelphia Motor Company, who was pay

In suit to quiet title by one alleging he was owner of the legal title through purchase of the land from a husband, where defendant wife resisting plaintiff's claim prayed in the alternative that if plaintiff's bill was not dismissed her husband be made a party and that she be decreed a reasonable sum against him for maintenance and support, together with attorney's fees, etc., also praying for general relief, the motion to make her husband a party being overruled and no answer being filed by plaintiff to her cross-bill, under the issues joined it was technical error to render a decree quieting the title to said lot in defendant as against plaintiff. Smith, J., dissenting; Hart, J., dissenting in ing her a small rental therefor; that in the part.

year 1899 she assessed the lot in her own

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

name for the purposes of taxation, and there- | abandonment she paid the taxes upon the after paid the state, county, city, and special property, amounting to about $200, and liqimprovement taxes upon said lot in the sum uidated an indebtedness against her husof about $200, and out of her individual band, which, together with reasonable inearnings paid the indebtedness of her hus-terest thereon, exceeded, perhaps, the value band to the amount of about $1,000 in order to prevent the lot from being sold to satisfy his debts; that appellant was cognizant of the abandonment, and familiar with the lot and uses to which it had been put by the appellee Mrs. S. A. Pannell, having seen it every day, and sometimes oftener, during the entire period of abandonment; that J. J. Pannell, a son of the appellee, Mrs. S. A. Pannell, had often talked to appellant concerning the affairs of Mrs. Pannell and W. G. Pannell, and had been told that the property belonged to said appellee; that, about 30 days before appellant purchased the property from W. G. Pannell, he had inquired of J. J. Pannell whether the lot was for sale, and was informed that it belonged to his mother, and that she did not want to sell it; that, on the 6th day of September, 1920, appellant purchased the lot in question and obtained a quitclaim deed thereto from W. G. Pannell for $500; that, according to the opinion of various witnesses, the property ranged in value from $1,500 to $3,000 at the time he purchased it.

[1] Appellant insists that the court erred in dismissing his bill for the want of equity. This must depend upon whether his grantor, W. G. Pannell, was in position to assert his legal title as against the equitable rights of Mrs. S. A. Pannell in a court of equity, for appellant cannot be regarded as an innocent purchaser, as the record reflects that he had a personal acquaintance with his grantor, W. G. Pannell, and the appellee, Mrs. S. A. Pannell, and understood that they had lived apart for 23 years; that said appellee had been in the actual possession of the lot during that period, paying taxes thereon, and claiming ownership thereto. As appellant was in possession of facts sufficient to put a reasonable man upon inquiry as to the exact situation, he merely succeeded to whatever rights and equities his grantor possessed. W. G. Pannell, appellant's grantor, abandoned his family, consisting of his wife and three small boys, about 23 years before the institution of this suit, and showed no further interest in them. At the time of his departure he sold his personal property and took the proceeds with him, leaving an indebtedness of between $800 and $1,000 unpaid. Mrs. S. A. Pannell, thus abandoned, assumed the burden of the support of herself, the children, and the payment of this large indebtedness. In order to meet these burdens, she took immediate possession of the lot in question, and continued the blacksmith business, with the aid of her chidren, which had been theretofore conducted by her husband. During the entire period of 232 S.W.-3

of the property at the time her husband sold it to appellant. During all this time the property was assessed in her name, and she openly asserted ownership thereto. Mrs. Pannell testified that she paid the personal indebtedness of her husband to prevent his creditors from taking the lot. In saving the property from his creditors and from sale for taxes, she expended large sums of money. In that way, this delay in asserting his right to the lot has worked disadvantage to said appellee. This unconscientious conduct on the part of appellant's grantor, in the language of Mr. Pomeroy (Pomeroy's Equity Jurisprudence, vol. 1 [4th Ed.] § 404), would "repel him from the forum whose very foundation is good conscience." To uphold the right of appellant's grantor to sell the lot under these circumstances would operate as a fraud upon the rights of appellee, and calls for the application of the equitable doctrine announced above.

Appellant insists, however, that the doctrine of laches is not applicable where one is attempting to enforce a legal right in a court of equity. This court applied the doctrine of laches in the case of Osceola Land Co. v. Henderson, 81 Ark. 432, 100 S. W. 896, in which it attempted to assert its legal title to 1,280 acres of land in a court of equity by seeking to remove a cloud upon its title. In doing so, this court reiterated the doctrine announced by Lord Camden in Smith V. Clay, 3 Brown, Ch. 638, in the following language:

"Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence."

This court also took occasion to reiterate the following maxim of law:

"Equity aids the vigilant, not those who slumber on their rights."

The following cases also support the application of the doctrine of laches, where equitable remedies were invoked in the assertion of purely legal rights. Rowland v. McGuire, 67 Ark. 320, 55 S. W. 16; McFarlane v. Grober, 70 Ark. 371, 69 S. W. 56, 91 Am. St. Rep. 84; Clay v. Bilby, 72 Ark. 101, 78 S. W. 749, 1 Ann. Cas. 917; Turner v. Burke, 81 Ark. 352, 99 S. W. 76; Craig v. Hedges, 90 Ark. 430, 119 S. W. 645; Rachels v. Stecher Cooperage Co., 95 Ark. 6, 128 S. W. 348; Burbridge v. Wilson, 99 Ark. 455, 138 S. W. 880; Anders v. Roark, 108 Ark. 248, . 156 S. W. 1018; Galloway v. Battaglia, 133 Ark. 441, 202 S. W. 836.

[2] We think the facts in this case bring it within the rule announced in these cases. Appellee prayed in the alternative that, in

« 이전계속 »