BOARD OF LEVEE INSPECTORS V. CRITTENDEN.
613 The
upon a construction of the statutes of Kansas,but upon tions of equity as between stockholders and creditors. murrer is sustained. KULP v. SNYDER (two cases). (Circuit Court, E. D. Pennsylvania. Nos. 1, 2. 1. LIMITATION OF ACTIONS-PLEADING STATUTE.
de-
June 2, 1899.)
Under Hev. St. § 4920, the statute of limitations may be pleaded specially in the federal courts, either with or without the general issue, regardless of the state practice. 'l'he tendency of the federal courts is to regard with disfaYor the interposition of inconsequential points of technical pleading.
2.
PLEADING-FEDERAl, COURTS.
On Rule to Strike Off Special Pleas of the Statute of Limitations. Joshua Matlack, Jr., for plaintiff. Hood Gilpin, for defendant. DALLA..S, Circuit Judge. The special plea of the statute of limitations is prohibited in any action ex delicto by the procedure act of Pennsylvania of May 25, 1887. But this act is not to be applied by this court to cases where congress has legislated, and upon the sub· ject of pleadings congress has legislated in section 4920 of the Revised Statutes, under which it seems that defenses other than those there enumerated may be pleaded specially, with as well as without the general issue. See notes to Rob. Pat. § 992. MOl'eover, the question sought to be raised does not appear to be of any practical .importance. If thf- defendant is entitled to the benefit of the statute, and if, upon the whole evidence, it shall appear that the plaintiff has a valid cause of action which accrued within six years, he will be entitled to recover; otherwise, he will not be. This can readily be determined as a single issue upon a single trial, and the tendency of the courts at this day is to regard with disfavor the interposition of inconsequential points of technical pleading.'l'he plaintiff's rule to strike off the defendant's pleas, etc., is discharged.
BOARD OF LEVEE INSPECTORS OF CHICOT COUXTY v. CRITTENDEX el at.
(Circuit Court of Appeals, EigiItb, Circuit. .No. I. CORPORATIONS-CREATION BY ERS ON LEVEE BOARD.
May 2, 1899.)
IMPLICATION-CONFERRING CORPORATE Pow-
A board of levee inspectors created by act of the legislature of Arkansas for a county, and given the powers usually incident to corporations, ing the power to condemn land for levee purposes, employ engineers, attorneys, and other agents, make contracts for work, and take bonds from the contractors, and fix the rate of taxation for levee purposes within their
q.tstrict, constitutes,a corporation, with power to sue and be sued, although terms dec1lired' act to'bea corporation; ": ',' : " . S. 'Ji.,EvEEs-Rt6a'r
AnKANSAs. , ' , , ; ;'f Whether or not there exists a servitude upon the lands bordering on the Mississippi river within all the orlglnal' "Louisiana territory which authorizes the taking of land for a pubUc levee without compensation (a question not decided), it has .uevllr beeQ ,tlW policy. pf the state of Arkansas to claim or exercise such right, and it cannot be asserted in a federal court by a board of levee:inspectors created by the legislature of that state an act which provides for the payment of compensation for lands so taken.
'4'0 COMPENSl\'rION'FOlt LANJ'»l TAKEN OR INjOnED-l.AW
OF
3.
SAME -
A levee board. i!btaking. ea,rth and timber from land. of an individual owner for the of a levee previously constructed, acts in its corporate capacity and within its powers, althoug!l there is no statutory provision for such taking; and the board is liable in sucll capacitY,under the constitution,of Arkansas, for just COD;\pensation. to the landowner for l;l0 much of his property./i-S was; "talfen" aI1propriated, or damaged:' ., 4. EMINENT DOMAIN-DAMAGES Fon PROPERTY TAKEN-BENEFITS.
TAKING EARTH AND TIM13ER Fon HgpAmS - RIGH1' OF OWNER TO , . : : ; , '"
henefits! msultipg tp a in common with others from a public improvement are not to be takeI). into consideration, as against the value of his property taken or destroyed In making such improvement.
In Error to the Circuit Court of the United for the Eastern DistrictoLAl'kanslUl. : I" . Sterling'R. Cockrill and fpr plaintiff in errOl" F'lM.Rogersj U.'!kRose,W.:E.Herilingway, and G.B. Rose, for deff'ndants in error. ' . OALDWELL/ SANBOllN, andTRAYER, Circuit Judges. ;: ' ; ' >
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CAl,DWELL; Gircuit a-udge: ",This action was l!>ronght by O. B. :ind Henry Crittenden, against the boittd oflevee in,sPlfctorsof Chicot county, Ark., the plaintiff ill error, dan\.ages for entering upon their'land, and by .excavations'artd',digging upon thelann :destroying onehotise,filling up a ditch cu·t'forthe purPose of!drw,Jiage, and damming up 'the natural outlet f6r' the surface water,. ahd 'destroying timber:. .'There was a de?iurrertbthe the ground that stated falled to .show a caus,e' of actIOn, '1'he demurrer was .overruled, and therMpon1hedefendant fileWits answer.' The set up the fol: lowing defenses: . Firiilt.: A.: 1denial of 'the tresplL'!s' c6mplainedof; Second. That the board was created by the act of the legislature of the state of Arkansas for the purpose of building and repairing in, defendant caused fpe ;levee to be bUllt onpliimtiffB' premIses, but tllat the damages were duly assessed in accordance with the law at the sum of $1; and that in fact plaintiffs' landS. I wereenhaneM. in value by the building of the levee in a sum greater than any damage Third. The plea of the statute of limitations of one year,and also of three years. There was a trial by Jury,' whO assessed the 'plaintiffs' damages For age to landsOIUCCQUnt of excavations, $1,568; fordamagt' to timber lands,$224; ,for cutting new ditch, $700; for damage to land of obstruction to drainage, $500; .for destruction of !;louse, Qn this,verdict jUdgment was entered. . The plain-
in
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BOARD OF LEVEE Il\SPE'.'TORS V. CRI'l'TEl\DEN.
615
tiffs entered a remittitur for the $500 allowed for the obstruction to drainage, because no claim was made for it in the complaint. The demurrer raises two principal questions: First, that the act creating the board of levee inspectors confers no corporate powers upon the board, and does not authorize a suit to be brought against it; second, that the levee district would not be liable in any event, for the reason that in all the original Louisiana territory there is a servitude upon Jands bordering up(Jn the Mississippi river, which justifies the taking of land for a public levee without making any compensation therefor. While it is true that the act does not in express terms say that the board of levee inspectors shall be a body corporate and subject to suit, it confers upon the board all the powers ofa corporation. It is ilUthorized to locate, build, and repair levees, and for that purpose condemn lands; to emplo,Y engineers and such other agents, attorneys, and employes as may be necessary to carry into effect the objects of the act; to pay them for their services; to let co.ntracts for building or repairing leve'es; to fix and determine the rate of taxation to be levied on the lands in the levee district; to require bond from the contractors; to have general supervision of thelevees; and, in short, to do everything necessary for the protection of the lands in that district from overflow. These powet'Sare the principal attributes of a corporation, and, although the statute does not in. terms declare it to be a corporation, it is sufficient if that intent clearly appears. Whenever the powers conferred upon a board are of such a character that they cannot be performed or ulade effective without the exercise of the right to sue and to be sued, that right is necessarily implied. Judge Dillon, in his work on Municipal Corporations, says: "Although corporationl;1 in this are created by statute, still the rule is here also settled that not only private corporations aggregate, but municipal or public corporations, may be established without any particular form of words or technical mode of expression, though such words are commooly employed. If powers and privileges are upon a body of men, or upon the residents or inhabitants of a town or distl'iet, and if these cannot be exercised and enjoyed, and if the purposes intended eannot be carried into effect, without acting in a corporate capacity, a corporation is, to this extent, created by implication. '.rhe question turns upon the intent of the legislature, and this can be shown constructively as weU as expressly. This is well illustrated in a case in :\fassaehnsetts, where the question was whether the plaintiffs were a corporate lJOdy with power to sue. They were not incorporated expressly. But by statute the inhabitants of the several school-distriets were empowered, at any meeting properly called, to raise money to erect, repair, or purchase a school liouse, to determine its site, etc.; the majority binding the minority. The cause was argued by able counsel, and after several consultations the judges of the supreme judicial court finally !lgreed in the opinion tbat the plaintiffs possessed sufficient corporate powers to maintain an action on a contract to build a school house, and to make to them a lease of land. But the intention of tbe legislature, Where it is sought to show that a corporation has been created by implication, must satisfactorily appear." Dill. Mun. Corp. (4th Ed.) § 43.
And see, to the same effect, 1 Thomp. Corp. §§ 1, 2. This question came before the supreme court of California, and that court held that an act of the legislature requiring the supervisors of a county, upon certain conditions, to create a levee district, and!
94 FEDERAL REPORTER.
providing the details by which the work should be effected, mali:es the levee districtthus organized Oy the board of supervisors a corporation, and a public cOJ:lIoration, although the act dOl¥! not in terms declare it a corporation. Deanv. Davis, 51 Cal. 406, 411. And see, to the same effect, Elmore v.Commissioners, 135 Ill. 269, 25 N. E. 10;10; Liverpool Ins. Co,v. Massachusetts, 10 Wall. 576. This is the construction put upon 'the act by the board itself, for the record shows thl,l,t it ha,s brought and maintained suits in its corporate name. in all the original Louisiana territory there is a servitude upon lands bordering upon the Mississippi river which justifies the taking of the land for a public levee without compensation, it is not to determine i,n this action. Upon this general subject, see Eldridge v.Trezevant, 160 U. S. 452, 16 Sup. Ct. 345. It is ellough't:o say that there is nothing in the record before us to show, or tending tQ show, that the state of Arkansas, or any department of its has ever claimed or asserted this right. If the right exists, it seems never to have been the policy of the state to assert it. On the contra:r:y, the act under which the levee which gives rise to this suitW'as built makes provision for awarding to the landowner on whose land the levee i$ located and built such damages as "six land ownerso!, the county' * * * may deem just and right." We would not be justified inforci,ng on the state of Arkansas a policy inc,onsistent' with that which has characterized all her legislation on this subject, ali-d inconsistent ,with the,provisions of the act which created this board of levee inspectors. The claim now put forward for the,first time by this board fiilds no sanction either in the constitution or the laws of the state. Assuming, but not deciding, that, if tpere had been no legislation on the subject, such a servitude would exist, it is clearly not aright that is paramount to the constitution and laws of the state, and which the state is bound to exercise. The demurrer to the complaint was properly ov.erruled. In determining the other questions in the case, it is important to bear in mind that this action is not for the taking of land upon which to construct a levee. The land upon which the levee was constructed was condemned, and the levee originally located and built ill 1887. In 1892-9::1 it became necessary, for the protection of the land in the levee district from overflow, to increase the width and height of the levee. The earth and other materials necessary for this purpose were taken from the plaintiffs' land inside of the lev,ee, and outside of the land originally condemned for the right of way of the levee. Obviously the damages resulting to the plaintiffs from this acmin ofib.e, boai-q were not covered by the assessment of damages for· the la$,d originally. taken for the levee. If the board could' have proceeded under the act to condemn the additional land neceSilary to inarease the· width and height of the levee, it did not do so. It, or others acting by its authority, entered upon the plaintiffs' land and did the damage complained of. We have no difficulty in holding that, in an the board did in the premises, it was acting in its corporate capacity, and is liable in 'its corporate capacity for the property taken, damaged, or destro.red. Leyee I
BOARD OF LEVEE Il\SPECTORS V. CRITTENDEJ\'.
617
boards in the valley of the lower Mississippi are necessarily invest· ed with large powers and discretion. It frequently occurs that levees have to be repaired, strengthened, or increased in height with the greatest celerity in order to prevent widespread damage to property, and destruction of animal, and sometimes human, life. In such emergeneies time cannot be taken to condemn in a formal way the property and materials essential to be used to prevent such disasters; but the action Of the board in such cases is its corporate act,-as much so as if it had proceeded in the most deliberate and formal manner to have the property condemned to the use to which it was appropriated. Such action is as much a part of the board's official duty as the original location and construetion of the levee. The board's aetion in this case was not, then>fore, extraoffieial. But the mode of assessing the damages for property taken or damaged to meet such emergencies is necessarily different from that prescribed by statute in the case of the original location of the levee. There is no provision of the act authorizing the board to take land, timber, or earth, or to make excavations on land bevond the limits of the land condemned for the levee as originally laid off and construeted. f"nquestionably, it is the existing poliey of the state and of the act in question to e0mpensate the owner for land taken for the original constl'uction of the levee; and 'it is equally clear that after (hat has been done, and the levee built, the land, earth, and other materials necessary fOl' maintaining, repairing, and strengthening the levee cannot lw taken ad libitum outside of the limits of the right of way originally condemned, without making compensation to the owner for the value of the same, or the damages thereby sustained. 'fhe constitution of the state declares that: "The right of property is befo·re and higher than any constitutional sanction. and private property shall not be ta.ken, appropriated or damaged for pUblie use without just compensation therefor." Const. Ark. art. 2, § 22.
This constitutional provision is applicable to this case. and entitles the plaintiffs to "just compensation" for so much of theil' property as was "taken, appropriated or damaged" for the public use mentioned. It is assigned for error that the board was not permitted to show the benefits which accrued to the land of the plaintiffs in consequence of the acts complained of. But it is well settled that mere general or public benefits, or such benefits as result to the public at large,-as, for illustration in this case, to the other lands within this levee district,-cannot be charged to the owner' of the land which is taken for the public use. "In estimating either the injuries or benefits," says Judge Cooley, "those which the owner sustains or receives in common with the community generally, and which are not peculiar to him, and conneeted with his ownership, use, and enjoyment of a particular parcel of land, should be altogether excluded." Cooley, Const. Lim. § 698; Chiles v. New Haven & N. Co., 133 Mass. 253: Sullivan v. Railroad Co., 51 J. Law, 518, 18 Atl. 689; Railroad Co. v, Currie, 62 :Miss, 5(){i. There was an offer to prove some special benefits resulting to,
E!18
for the pUtp()se of buildipg alld repairing levees in Chicot Arkansas; that the line oflevee to be ,built on the plaintiffs' premises described in theoornpiaint in the Year 1887; tliat the damages done to said premises by i'eason thereof were duly assessed in accordance with law in the year aforesaid at the sum of one dollar; that, in fact" the plaintiffs' lands were enhanced in value by the levee built thereon in a sum greater than any damage . done by the bUilding thereof." .
the plaintiffs from the action .of the board complained of, which was rejected,-upon what ground the record does not disclose; but a 8utllciEimt ground to support the.ruling of the lower is found in the fact that the board set up no such claim or defense in its answer. ,Aside from the genera} denials, of the answer, all that is found on the subject ot damages is contained in paragraph 2 of the substituted and amendedans",er,. which reads as foll9wS; "(2) Said board.alleges .that·it was. created under the act of March 20, 1883,
Obviously the benefits here attempted. to be set up are the benefits which the plaintiffs' lands received in common with the other lands within the levee district by the original construction of the levee; and, moreover, if the averment could be considered to relate to special benefits, they are special benefits resulting from the original construction oLthe levee, which were considered and disposed of in the condemnation proceedings taken in 1887, and are quite fOreign to tlruiscase. Nothing is said about any special benefits accruing to the plaintiffs or their land by relli30n of the acts .done by the .boaI'd for which this suit is brought.. If the defendant relied upon any· such defense, it; should have set it up in its answer. , One of ·the pleas of the statute of.limitations has been abanthe;;statute of three, years, there beiugconfiicting doned, and, evidence as to when the cause of action arose..the court below properlyaubmitted tht.'! .if'lsuetothe jury, and its fin9ing is conclusive. 'It would serve nO'l1aeful purpose to examine in detail all the requests forittstructiotts, and the numerous assignments of error arising upon exceptions. The VHflII.qJ.lestions in the case ,hav,8 been,considered and decided. Acare(ul considerasatisfies Uf'I that there was Uosubfijtantial tion of the whole error committed in the trial of the case, and that the judgment is Ii,.' right, and should be. affirmed. ; . I ' ,J / ; "
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PITTSBURG, C. & ST; L.R;Y, CO.v. HOOp.." :.; "
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(O'ircuitCourt hf' A:.ppeals, :Sixth qttcUit.May
No.\3$q.
"
15;1899.,
:t;' HIGH'WAYS""--'USE I
In the :absence of or tll,rougl1 t!:le au.thorizeilactionofll the, constructioJ;l. lind use by a railroad ,.comp\lny of. its rQa[J longitudinally on, a public highway is a public nuisance. . ., ." , ' The unauthorized occupation and use,'of highways by a railway company makes, such company a trespasseJ;,and for: such damages as
BY RAlLWAY COMPANIES-NuISANCES.
a
SAMEi-UNAU'rHOltIZEb USE-LIABILITY FOR' INJURIES;
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