Summary
In Clements v. Town of Carrollton, 216 Miss. 859, 63 So.2d 398, and in other cases therein cited, we held that (Hn 1) when the chancellor viewed the premises in such cases as here presented, great weight is attributed to his findings, and they will not be disturbed on appeal unless it appears that his decision is not supported by substantial testimony delivered by sworn witnesses.
Summary of this case from Person v. RoaneOpinion
No. 38695.
March 16, 1953.
1. Waters — upper riparian owner — surface waters.
An upper riparian owner may drain his surface waters into a natural water course, even though it increases the flow of the water course beyond its capacity.
2. Appeal — view of the premises by chancellor — effect of on appeal.
Where by consent of the parties the chancellor has viewed the premises, his decision on issues of fact will not be disturbed unless it appears that his decision is not supported by substantial testimony delivered by sworn witnesses.
Headnotes as approved by Holmes, J.
APPEAL from the chancery court of Carroll County; J.K. GILLIS, Chancellor.
Bell McBee, for appellants.
Discussed the facts at some length and cited the following:
Steed v. Kimbrough, 195 Miss. 430, 19 So.2d 925; Illinois Central R.R. Co. v. Miller, 68 Miss. 760, 10 So. 61; Sinai v. L.N.O. T.R. Co., 71 Miss. 547, 14 So. 87; Holman v. Richardson, 115 Miss. 169, 76 So. 136; 67 C.J. 760, Sec. 104; Board of Drainage Commissioners v. Board of Drainage Commissioners, 130 Miss. 764, 95 So. 75, 28 A.L.R. 1250; Cresson v. L. N. Railroad Co., 146 So. 462; City of Water Valley v. Poteete, 203 Miss. 382, 33 So.2d 794; City of Jackson v. Robertson, 208 Miss. 422, 44 So.2d 523; City of Jackson v. Cook, (Miss.), 58 So.2d 498; J.R. White's Garage v. Town of Poplarville, 121 So. 295, 153 Miss. 683; Sturges v. City of Meridian, 95 Miss. 35, 48 So. 620; Sec. 129, Chap. 491, Laws 1950; Town of Senatobia v. Dean, 157 Miss. 207, 127 So. 773; Chidsey v. City of Pascagoula, 102 Miss. 709, 59 So. 879; Funderburk v. Columbus, 117 Miss. 173, 78 So. 1.
Maurice R. Black, for appellee.
Cases wherein the court or court and jury have viewed the premises the subject of litigation the Supreme Court stands in a peculiar position as to review of the action of the lower court.
In Benelli v. Branciere, 127 Miss. 556, 90 So. 245, the Court had under consideration a suit for damages for personal injury. In its opinion, after detailing all of the evidence produced by the plaintiff, the Court said, "If this were all the evidence before the jury on this question, the issue would be clouded and in much doubt, to say the least of it. However, there was other and most material evidence not in the record and which in its nature could not be gotten into the record exactly as it was given, and still it must be considered. The trial judge, the jury, appellee, and counsel for the respective parties visited the locus in quo as authorized by statute, and there the appellee testified fully as to how the injury occurred, pointing to the marks on the gate claimed to have been made by the truck as well as to the position of the truck with reference to the marks on the gate and fence when the injury took place, and showing how near closed the gate was and where he was standing, all of which he demonstrated by acts as well as words in the presence of the trial judge, jury and counsel, which demonstrations, of course, the court reporter could not exactly translate into the record. The jury heard and saw it all. It was an issue of fact alone for the jury."
The Bonelli case, supra, was quoted with apparent approval in Miller v. Ervin, 192 Miss. 712, 6 So.2d 910, and in Kress Co. v. Sharp, 156 Miss. 693, 68 A.L.R. 167.
In National Box Co. v. Bradley, 171 Miss. 26, 157 So. 91, 95 A.L.R. 1500, the Court was considering a damage suit wherein the trial court viewed the premises. In a most carefully considered opinion, Justice Griffith held as follows: "Appellant urges that the great or overwhelming weight of evidence was against the appellee, and that the motion for a new trial raising that question should have been sustained. It may be without the view of the place and premises had by the jury we would have inclined to reverse this judgment; but we are bound by the rule as stated in Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167, that where there has been a view or inspection of the place or premises by the jury, we cannot reverse on the evidence, if there be any substantial testimony, delivered by sworn witnesses, in support of the verdict."
In S.H. Kress Co. v. Sharp, supra, the Court discussed the effect of a view of the premises as evidence as follows: "The courts of the several states have differed widely on the effect to be given by the appellate court to a view of the premises by the jury. Some courts hold that upon appeal the case must be considered solely on the record of the testimony, while others maintain that the evidence which the jurors may reasonably be supposed to have obtained by the exercise of their powers of impartial observation while on the ground is to be considered as sufficient to sustain the verdict. Our court, while not having given expression to a definite rule, has committed itself to a middle ground as will be seen by reference to Bonelli v. Branciere, 127 Miss. 556, 90 So. 245; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111, and one or two others. The rule, we think, is summarized with approximate correctness in 1 Thompson on Trials (2nd Ed.), Sec. 902, as follows, `The true solution of this difficulty is that cases where there has been a view stand, on appeal, on a special footing; that although what the jurors have learned through a view is evidence to be considered by them, yet on grounds of public policy, having reference to the known imperfections which attend the conclusions of jurors, and even of the judges in the haste of nisi prius work, a reviewing court should set aside a verdict based partly on a view, unless it is supported by substantial testimony, delivered by sworn witnesses.'"
Thompson on Trials (2nd Ed.), Sec. 902, quoted above, is also quoted with approval in Jones on Evidence (2nd Ed.), Sec. 409, and the true rule is stated substantially as held in the Kress case, supra.
There is no evidence in the record which even remotely tends to prove that the ditch on the north side of Greenwood street, which appellants contend was not deep enough to take care of the water, was not in substantially the same physical condition as before the blacktopping was laid. The burden of proof in the matter of damages claimed was on appellants. We are therefore left with the naked fact that the only negligence or fault of appellee, was that it caused to be hard surfaced the street in front of appellants' property. The court viewed the premises in question, including the whole length of the street, and could not find any evidence either in the record or from his inspection of the premises upon which to justify a judgment for damages against appellee.
The appellee, Town of Carrollton, filed its original bill in the Chancery Court of the First Judicial District of Carroll County, against W.C. Clements, Sr. and Mrs. W.C. Clements, Sr., praying the issuance of a mandatory injunction to require the defendants to remove a dam which they had constructed across a drainage ditch on the west side of their property, and which was allegedly obstructing the flow of water through said ditch, and seeking also the recovery of damages alleged to have been sustained by the appellee as the result of the erection and maintenance of said dam. A preliminary injunction was issued and served upon the defendants, and within ten days or two weeks thereafter they removed the dam. The defendants answered the bill, admitting the erection of the dam and averring that it was erected to protect their property from overflow and that it was promptly removed upon the service of the injunction upon them, and denying that the appellee had suffered, or was entitled to recover, damages by reason thereof. The defendants made their answer a cross-bill, and alleged that their home was situated on the north side of Greenwood Street in the Town of Carrollton, which for many years was a graveled street, and that in the latter part of 1949, or early in 1950, the Town had black-topped this street and had thereby increased the natural flow of water on the same in the direction of the property of the cross-complainants, and had negligently failed to clean out or deepen the drainage ditches on each side of said street and the culverts appertaining thereto, and that as a result thereof, water in an increased volume was caused to flow upon and undermine and damage the driveway on the property of the cross-complainants, and they sought the recovery of damages therefor.
The chancellor heard the evidence, and, by consent of the parties, viewed the locus in quo, and made a finding of fact adverse to the defendants and cross-complainants, and entered a decree making the injunction perpetual, denying damages to the Town of Carrollton, and dismissing the cross-bill, from which decree this appeal is prosecuted. Pending the appeal, the defendant W.C. Clements, Sr., died, and this cause as to him has been revived in the name of his wife as his administratrix.
It is the contention of the appellants on this appeal that the chancellor's findings of fact are not supported by the evidence and that the decree of the chancellor is contrary to the overwhelming weight of the evidence. The question here presented, therefore, is whether the evidence on the vital issues involved was so conflicting as to create an issue of fact for the determination of the chancellor, and whether the chancellor's decision under this evidence is so manifestly wrong as to warrant a reversal.
Certain of the facts as to the structural situation at the scene of the alleged damage are undisputed. Greenwood Street in the Town of Carrollton runs generally in an east and west direction. Its eastern terminal intersects Lexington Street, which runs generally in a north and south direction. The property of the appellants, which they acquired in 1930 and have since occupied, is located on the north side of Greenwood Street. Greenwood Street slopes in a westerly direction until it reaches a point opposite the property of the appellants, when it begins a gradual ascent, and thus the property of appellants is located at the lowest point of elevation on the street, and the natural flow of water along the street is in the direction of the property of appellants. The south side of the street is higher than the north side of the street. On each side of the street and running parallel with the street is a ditch, which for years has served as a natural drain to take care of the water falling on and along said street. The flow of the water in the ditch on the south side of the street is westward and into a culvert under the street in front of the property of appellants, and thence northward through the culvert and into an established drainage ditch on the west side of the property of appellants. The flow of the water in the ditch on the north side of the street is westward and through a culvert which the appellants constructed thereon for the purpose of maintaining a driveway to their premises, and thence into the aforesaid established drainage ditch through which it continues northward. There is a culvert at the western terminal of Greenwood Street where it intersects Lexington Street which is designed to relieve some of the flow of water on and along Greenwood Street and carry it northward along Lexington Street. Prior to the latter part of 1949, or the early part of 1950, Greenwood Street was a graveled street. At that time, the Town black-topped Greenwood Street. There is no evidence that its grade was changed. There is evidence that because a black-topped street is more impervious to water than a graveled street, the flow of water on and along the black-topped street and into the drainage ditches on each side is three percent greater than would be true of a graveled street.
We think that appellants have no ground to complain that the Town, by black-topping the street, has hastened the flow of water into the natural drains on each side and caused it to flow in increased volume. There is no evidence of diversion of the surface waters from the natural drains. In the cases of Board of Drainage Commissioners of Drainage District No. 10 of Bolivar County v. Board of Drainage Commissioners of Washington County, 130 Miss. 764, 95 So. 75, and Jones v. Walker, (Miss.) 44 So.2d 466, it was held that (Hn 1) an upper riparian owner may drain his surface water into a natural course, even though it increases the flow of the water course beyond its capacity. In the case of Cauthen v. City of Canton, 144 Miss. 471, 110 So. 123, the Court said:
"It is contended by the city that, inasmuch as no artificial drains empty into this ditch casting waters therein that were not accustomed to flow there, the city had the right to hasten the flow of the water occasioned by its paving of the streets. The city relies upon Drainage District Commissioners v. Drainage District Commissioners, 130 Miss. 764, 95 So. 75, 28 A.L.R. 1250, and other cases, in so far as the suit for damage to the lot occasioned by the increased flow of water and the overflow of water upon the lot are concerned. We think that the contention of the city is supported and controlled by that case, and by Herring v. Lee County, 130 Miss. 1, 93 So. 436."
But it is argued by the appellants that appellee was negligent in failing to keep cleaned out the ditches and culverts in order to provide adequate escape for the increased waters which were cast into the natural drains by reason of the black-topping of the street. Whether or not the Town met the degree of care required of it in maintaining the ditches and culverts in reasonably proper condition was, in our opinion, an issue of fact on which the evidence was conflicting. There was evidence for the appellants that the ditches and culverts were not adequately maintained. On the other hand, the Town officials testified that such work as was necessary was done to maintain the ditches and culverts in proper condition. Furthermore, the chancellor, by consent of the parties, viewed the premises and determined from the conflicting evidence and his view of the premises that the Town was not at fault with respect to the conditions of which appellants complained. (Hn 2) We think that it was the province of the chancellor to determine this issue of fact from the conflicting evidence, and, since he viewed the premises, that his decision should not be disturbed unless it appears that his decision is not supported by substantial testimony delivered by sworn witnesses. Kress Company v. Sharp, 156 Miss. 693, 126 So. 650. Great weight is to be attributed to the fact that the chancellor viewed the premises. In the case of Kress Company v. Sharp, supra, the court quoted with approval 1 Thompson on Trials (2d Ed.) Section 902, to the effect that cases where there has been a view stand on a special footing, and that a verdict based partly on a view should not be disturbed unless it is not supported by substantial testimony delivered by sworn witnesses. See also National Box Company v. Bradley, 171 Miss. 26.
After a careful review of the record, and considering the fact that the chancellor based his decision partly upon his view of the premises, we are of the opinion that the decree of the court below is amply supported by the evidence and should not be disturbed. Accordingly, the decree of the court below is affirmed.
Affirmed.
Roberds, P.J., and Hall, Arrington and Lotterhos, JJ., concur.