Summary
holding the defendant liable for damages to the plaintiff's land caused by the defendant's channeling of a fast stream of rain water on the plaintiff's land"
Summary of this case from City of Jackson, Miss. v. Filtrol Corp.Opinion
No. 35964.
November 26, 1945.
1. MINES AND MINERALS.
The defendants had right to remove mineral bentonite from their land without liability to plaintiff for any unavoidable injury to plaintiff's adjoining land caused as an incident thereto, but defendants were without right in so doing to cause surface water to be collected and discharged in a body on plaintiff's land so as to affect it differently from what it had theretofore to plaintiff's injury.
2. MINES AND MINERALS.
Evidence supported finding that defendants were liable for damages to plaintiff's adjoining land caused by defendants' collecting surface water and discharging it in a body on plaintiff's land during course of removal of clay containing bentonite from defendants' land.
3. APPEAL AND ERROR.
In action for damages to plaintiff's adjoining land caused by defendants' collecting surface water and discharging it in a body on plaintiff's land, where evidence of both parties disclosed that timber had been cut from plaintiff's land and that it was covered with bushes and briar, refusal to permit introduction of several photographs of portions of plaintiff's land for purpose of showing it to be without timber and thickly covered with briars and bushes was not prejudicial to defendants.
4. MINES AND MINERALS.
An award of $25 per acre for 40 acres of plaintiff's land claimed to have been destroyed by defendants' collecting surface water on their adjoining land and discharging it in a body on plaintiff's land was excessive, where it was shown that plaintiff had purchased the land several years ago for something less than $5 an acre, and it did not appear from plaintiff's evidence how land could have increased so much in value.
APPEAL from the circuit court of Smith county, HON. HOMER CURRIE, Judge.
Flowers, Brown Hester, and Robert Burns, all of Jackson, for appellants.
The verdict of the jury in the case at bar was contrary to the law of the case as contained in the instructions of the court and was contrary to the overwhelming weight of the evidence in the light of these instructions. Where there is no evidence upon which to predicate an instruction, then the instruction is erroneous and the giving of it constitutes reversible error; or, to put it another way, instructions, regardless of the theoretical law announced thereby, should be applicable to the issues and proof of the particular case.
Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Collins v. Union Farmers' Bank, 110 Miss. 506, 70 So. 581; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426; Code of 1942, Sec. 1530.
The mining for gravel or for bentonite or for other minerals is a "reasonable use" of one's property, and when these mining operations are conducted in a reasonable and proper manner, as was true in the present case, an adjoining landowner cannot complain of the fact that the operations resulted in an acceleration of the flow of the water onto and through his own land where there has been no diversion of additional surface water into and through the natural drain and onto his land. This is true even though the adjoining landowner suffers real and serious damage.
Holman v. Richardson, 115 Miss. 169, 76 So. 136; Board of Drainage Com'rs of Drainage Dist., No. 10 of Bolivar County et al. v. Board of Drainage Com'rs of Washington County et al., 130 Miss. 764, 95 So. 75; American Sand Gravel Co. v. Rushing, 183 Miss. 496, 184 So. 60.
The doctrine of "damnum absque injuria" as applied to the facts in the present case is an absolute bar to the suit of Mr. Hughes regardless of whether this suit was grounded upon the negligence of the defendants below, or was grounded upon the broader doctrine that one person must so use his own as not to do damage to the property of another, without reference to the question of negligence.
There is no substantial evidence in this case to support the verdict of the jury either on the issue of liability or on the issue of actual damages. It was the obligation of the plaintiff in the court below to show by a preponderance of the evidence some real and actual damage to his land and to his spring, and he cannot recover for imaginary and non-existent damage to fine farm land and to fine pasture land that has never existed. The verdict of the jury was against the overwhelming weight of the evidence on this point.
The lower court erred and did not exercise a sound discretion in excluding from the consideration of the jury the photographs that were introduced on behalf of defendants. They could in no way have been unfair to the plaintiff in this case, and they would have materially aided the jury in determining the true nature of this land and the issues of value that were involved.
The verdict for the plaintiff below of $1000 was excessive. The testimony reflects no material damages or injury to this wild land of the plaintiff. The proof of the plaintiff breaks down as to the type of land he claimed to have, as to the value of his land, as to the damages to it, and as to the true condition of the spring and the damages to the spring on his land.
The trouble was, in this case, that the jury paid no attention to the instructions of the court that the burden was upon the plaintiff in the lower court to prove by a preponderance of the evidence, first, that the defendants were negligent in conducting their mining operation and, second, that the plaintiff must prove with a reasonable degree of certainty some actual damage to his land and property. The jury disregarded the substantial evidence and resolved all doubts in the case in favor of the plaintiff, and handed him a gift of $1000 on behalf of these "foreign corporations."
R.C. Russell, of Magee, and O.O. Weathersby, of Taylorsville, for appellee.
Upper owners of a water course have the natural and legal right to drain their surface waters into the water course, but an adjoining owner cannot collect surface waters and discharge them in a body upon adjoining owners.
Board of Drainage Com'rs of Drainage Dist. No. 10 of Bolivar County et al. v. Board of Drainage Com'rs of Washington County et al., 130 Miss. 764, 95 So. 75.
See also Louisville N.R. Co. v. Capdepon, 192 Miss. 28, 4 So.2d 544; Buckingham v. Elliott, 62 Miss. 296, 52 Am. Rep. 188; Mississippi Mills Co. v. Smith et al., 69 Miss. 299, 11 So. 26; Miller v. Ervin et al., 192 Miss. 712, 6 So.2d 910; Wilson v. McCluskey, 53 Pa. Super. 25; Sullivan v. Gruskin, 115 Conn. 721, 161 A. 795; Elliott v. Mason, 76 N.H. 229, 81 A. 701; Costigan v. Penn. R. Co., 54 N.J.L. 233; Egan v. Hotel Grunewald Co., 129 La. 163, 55 So. 750.
An owner may not use his land for an unjust or unreasonable purpose or in an unreasonable manner to the damage of another.
American Sand Gravel Co. v. Rushing, 183 Miss. 496, 184 So. 60.
Generally, persons operating mines are governed by the same rules with respect to injuries to adjoining property as are applicable to other uses of real estate.
American Sand Gravel Co. v. Rushing, supra.
Whether a photograph offered in evidence is sufficiently instructive to justify its admission and whether it has been verified is a question for the determination of the trial judge.
Le Barron v. State, 107 Miss. 663, 65 So. 648; Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646; Wheat v. Teche Lines, Inc., 181 Miss. 408, 179 So. 553; Stone v. Northern Pac. R. Co., 29 N.D. 480, 151 N.W. 36.
Argued orally by Robert Burns, for appellant, and by R.C. Russell, for appellee.
The appellee and one of appellants are adjoining landowners. The level of the appellant's land is higher than that of the appellee and in its natural state surface water flowed therefrom onto appellee's land into a natural drain thereon, which carried it to Strong River, a natural water-course. The clay under the surface of the appellant's land contains bentonite, a mineral suitable for several commercial purposes. The owner of this land and the two other appellants are engaged in removing clay containing this bentonite from the land. In doing this they removed the top soil or over-burden and piled it along the excavation on the side thereof toward the appellee's land. The excavation caused by the removal of this clay was one-quarter of a mile long and a quarter of a mile wide, the depth of which does not certainly appear. The result was that the rain water falling on, and the surface water flowing into, this excavation, without which it would have flowed in a diffused state onto the appellee's land, was collected in the excavation. In order to remove this water therefrom the appellants dug a ditch sufficient therefor opposite and a short distance from the appellee's land which resulted in this collected water being discharged in a body onto the appellee's land. This water after passing through the excavation collected clay therefrom, which was deposited by it "over not less than forty acres" of the appellee's land in such quantity and of such character as according to the evidence for the appellee to destroy it "for any purpose and it is now a total loss to" the appellee.
The appellants requested and were refused a directed verdict in their favor. In support of this they say that the evidence discloses that they mined this bentonite in the usual way, were guilty of no negligence in so doing, that the removal of this water from this excavation was necessary in order to continue removing the clay containing the bentonite therefrom, and that the way in which they removed it was the only practical way to do so; because of which they say that the appellee's damage, if any, resulted from no fault of theirs but was incidental to the reasonable use by them of their land.
The appellants, of course, have the right to make any reasonable use of their land — to remove the bentonite therefrom — without liability to the appellee for any unavoidable injury caused him as an incident thereto, but they are without the right in so doing to cause surface water to be collected and discharged in a body on appellee's land so as to affect it differently from what it had theretofore to the appellee's injury. 3 Farnham on Waters, Sec. 887; Gould on Waters (3 Ed.), Sec. 271; Steed v. Kimbrough et al., 197 Miss. 430, 19 So.2d 925; Kansas City, M. B.R. Co. v. Lackey, 72 Miss. 881, 16 So. 909, 48 Am. St. Rep. 589; Illinois C.R.R. Co. v. Miller, 68 Miss. 760, 10 So. 61. No error was committed in refusing the appellants' request for a directed verdict, and the verdict of the jury, as to liability, is not against the weight of the evidence as the appellants say, but is fully sustained thereby, as to which, as the facts hereinbefore set out, there is no material conflict.
The appellants, in support of their claim that this land was ordinary cut-over land and of little value, offered, but were not permitted to introduce several photographs of portions of the land taken from elevations sufficient for that purpose showing the land within the scope of the camera to be without timber and thickly covered with briars and bushes. A witness familiar with the land, and who was present when these photographs were taken, stated that they correctly portrayed the land photographed and that the remainder of the land claimed by the appellee to be destroyed was in a similar condition as to timber, bushes, and briars. Assuming for the purpose of the argument that the exclusion of these photographs from the evidence was erroneous, no harm was done the appellants thereby for the reason that the evidence not only of the appellants but also of the appellee abundantly disclosed that the timber had been cut from the land and that it was covered with bushes and briars.
The jury awarded the appellee damages in the sum of $1,000, $25 per acre for 40 acres, the number of acres which the appellee claimed had been destroyed. This the appellants say is far in excess of what should have been awarded the appellee. In this we concur. The appellee purchased the land several years ago, paying therefor something less than $5 an acre. According to his evidence when it was destroyed by the appellants' causing it to be flooded with muddy water, it was worth $50 an acre. How it could have possibly increased so much in value, or even to $25 an acre, does not appear from the appellee's evidence; and according to the evidence for the appellants, the land denuded of timber and with no indication that it contained any minerals was not worth over $3 an acre. The only difference between this and the adjacent land is that it had a spring on it, which was destroyed by the mud, from which cattle had theretofore obtained water. On this evidence a verdict of $25 an acre should not be permitted to stand. Consequently, the judgment of the court below will be affirmed as to liability but reversed insofar as it fixes the amount of damages to be awarded, and the cause will be remanded to the court below for trial on the issue of the amount of damages only.
So ordered.