{
  "id": 1614261,
  "name": "Staub v. Mud Slough Drainage District No. 1",
  "name_abbreviation": "Staub v. Mud Slough Drainage District No. 1",
  "decision_date": "1950-02-20",
  "docket_number": "4-9095",
  "first_page": "706",
  "last_page": "709",
  "citations": [
    {
      "type": "official",
      "cite": "216 Ark. 706"
    },
    {
      "type": "parallel",
      "cite": "227 S.W.2d 140"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "44 S. W. 707",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "64 Ark. 555",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1907339
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/64/0555-01"
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    {
      "cite": "290 S. W. 948",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "172 Ark. 942",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1407885
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/172/0942-01"
      ]
    },
    {
      "cite": "17 A. L. R. 59",
      "category": "reporters:specialty",
      "reporter": "A.L.R.",
      "opinion_index": 0
    },
    {
      "cite": "231 S. W. 190",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "149 Ark. 15",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8717508
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/149/0015-01"
      ]
    }
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  "analysis": {
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  "last_updated": "2023-07-14T19:41:58.287119+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Staub v. Mud Slough Drainage District No. 1."
    ],
    "opinions": [
      {
        "text": "George Rose Smith, J.\nThis is an action brought by the appellee to condemn a right-of-way for a levee to be built by the federal government. The district proposes to take 28.92 acres of the appellant\u2019s land. Three appraisers, appointed under Ark. Stats. 1947, \u00a7 35-1102, filed their report allowing the appellant a total of $5,669.20 as the value of the land taken and as damages to his remaining lands. Both the district and the appellant excepted to the appraisers\u2019 award. As required by the statute, \u00a7 35-1103, the case was then tried before a jury, which fixed the amount due appellant at $2,000. The appellant assigns several errors which he thinks led to his receiving an inadequate sum for his land and damages.\nThe proposed levee is part of a comprehensive plan to provide protection against the overflow of the St. Francis River. The appellant\u2019s land is now protected by a levee previously built by the appellee along the river. It has been determined, however, that this levee is too close to the river; the new levee will be set back at some points for several miles. This levee will cross the appellant\u2019s land and will leave the greater part of it on the river side of the levee.\nIn spite of the fact that most of the appellant\u2019s land will not be protected from the river by the new levee, the district contended below that the levee will benefit these lands. The district\u2019s proof tended to show that in the past the appellant\u2019s land has usually been flooded not by the St. Francis itself but by two tributary streams that pass in the vicinity of the appellant\u2019s property on their course to the river. The new levee, together with a wide drainage ditch on its land side, will divert these streams before they reach the appellant\u2019s property and thus eliminate the principal source of past inundations.\nIn accordance with the district\u2019s theory of the case the trial court instructed the jury to deduct from the appellant\u2019s damages any benefits that might result from the construction of the new levee. This instruction was erroneous. When an improvement district takes part of a tract, any benefits that accrue to the remainder will eventually be paid for in the form of special assessments. If these same benefits are also deducted from the compensation to be paid for the land taken or damaged, the landowner is forced to pay twice for the benefits received. Consequently we have uniformly held that benefits cannot be offset against damages in improvement district cases. Gregg v. Sanders, 149 Ark. 15, 231 S. W. 190, 17 A. L. R. 59; Miller Levee Dist. No. 2 v. Dale, 172 Ark. 942, 290 S. W. 948.\nIt is immaterial that in this case the government will pay the cost of constructing the levee. If the government were bearing the entire cost of the project, there might be merit in the suggestion that special benefits should be deducted. But the district must furnish the right-of-way and must maintain the levee when completed. The district can meet these obligations only by levying assessments against lands benefited by the improvement. As it would be speculation to attempt to isolate tlie benefits resulting from the right-of-way and from maintenance, as distinguished from those accruing from construction alone, we think the general rule in improvement district cases, forbidding the offset of benefits against damages, must be applied in this case.\nA second contention relates to damages for the obstruction of appellant\u2019s natural drainage. Heretofore in times of flood the water on appellant\u2019s property has drained into a slough crossing his land. It is contended that the new levee will obstruct this slough and cause water to collect and remain on the land. Estimates differ as to the extent to which a drainage ditch will alleviate this condition. The trial court instructed the jury, in the language of the statute, that damages might be awarded for the obstruction of natural drainage, \u201cnot to exceed the cost of artificial drainage.\u201d Ark. Stats., \u00a7 35-1103. The appellant questions the constitutionality of this clause of the statute.\nThe validity of this clause was termed doubtful by Horace Sloan in his work on Improvement Districts in Arkansas, \u00a7 602. Our Constitution, Art. 2, \u00a7 22, provides that private property shall not be taken or damaged for public use without just compensation. We have recognized that just compensation must be a full and fair equivalent for the loss sustained. Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707. In some instances artificial drainage might be equally as good as, or even superior to, natural drainage; but in others it might not be practical to provide an artificial system that would be equally as effective as natural drainage. In the latter case an award equal to the cost of inferior artificial drainage could not be considered as just compensation for the injury caused by the obstruction of natural drainage. At the trial below the appellant testified that artificial drainage would not be as satisfactory as natural drainage and that any system of artificial drainage would be dependent upon his obtaining permission to dig a drainage ditch across his neighbor\u2019s land.\nFurther, the statute does not allow any consideration of the cost of maintaining an artificial system, for a later section provides for a recovery \u201cnot to exceed the cost of constructing artificial drainage.\u201d \u00a7 35-1108. No doubt in some cases the cost of artificial drainage might represent just compensation to the landowner, and in such a situation the jury could base its verdict upon that cost, even without the statutory language in question. But in other cases \u2014 including the present one if the jury credits the appellant\u2019s testimony- \u2014 a verdict limited to the cost of constructing artificial drainage would not provide the compensation that the Constitution requires. We accordingly hold that this clause of the statute is unconstitutional.\nOther errors are assigned, but we think the trial court\u2019s decision upon each of the other points was correct. We therefore omit a discussion of these questions.\nReversed.",
        "type": "majority",
        "author": "George Rose Smith, J."
      }
    ],
    "attorneys": [
      "Phil Herget and Kirsch & Cathey, for appellant.",
      "Charles Frierson and L. V. Rhine, for appellee."
    ],
    "corrections": "",
    "head_matter": "Staub v. Mud Slough Drainage District No. 1.\n4-9095\n227 S. W. 2d 140\nOpinion delivered February 20, 1950.\nRehearing denied March 20, 1950.\nPhil Herget and Kirsch & Cathey, for appellant.\nCharles Frierson and L. V. Rhine, for appellee."
  },
  "file_name": "0706-01",
  "first_page_order": 730,
  "last_page_order": 733
}