BEFORE PATTERSON, C.J., DAN M. LEE AND ROBERTSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
This is a diffused surface waters case. In 1979 Leo Hall and members of his family purchased and cleared a 20 acre tract of land in southwest Jackson. Almost immediately diffused surface waters flowing across the skinned land began depositing excessive amounts of silt, sediment and pollution into nearby Lake Catherine. Owners of property abutting Lake Catherine have brought suit and the Chancery Court has enjoined the Halls, prohibitorily and manditorily, to cease and correct their pollution and destruction of Lake Catherine.
The Halls have appealed charging primarily that the injunction denies them the use of their property for legitimate purposes. In the context of the facts of this case and the damage caused to Lake Catherine, we hold that the stripping of the Hall lands without taking adequate measures to prevent erosion was not a legitimate use of the Halls' property. Accordingly, with only a modification in form to be explained below, we affirm.
Plaintiffs below and Appellees here are 27 property owners whose lots abut Lake Catherine in southwest Jackson. They are sometimes referred to below as" the Lake Catherine Plaintiffs ".
The Defendants below and Appellants here are C. Leo Hall, his wife, Mary Hall, and their son, Randy Lee Hall, each of whom at various times have owned interests in a 20 acre tract northwest of Lake Catherine. At all times C. Leo Hall (hereinafter" Hall ") was the dominant actor on behalf of his family's interests in this land.
On January 27, 1979, the Halls acquires this 20 acre tract. At the time it was heavily wooded. Prior to that time, access to and rights in Lake Catherine were a valuable appurtenance to the Plaintiffs' residential properties. Lake Catherine has been a source of recreational and aesthetic enjoyment.
The Halls' 20 acre tract is zoned commercial. Hall acquired it for commercial development purposes. In the summer of 1979 Hall employed land clearers to remove all trees, vegetation and undergrowth. By August of 1979 the land had been completely stripped. The theretofore existing contours of the land were not altered, and no erosion prevention measures were taken at that time.
Hall had been engaged in negotiations with a major retail department store firm. He contemplated a sale of the property to this firm and others for development as a shopping center. Insofar as the record reflects, the tight money economy prevailing in 1979 resulted in the parties with whom Hall was negotiating abandoning their interest in the 20 acre tract in question. Hall was stuck with the property and remains so.
Once the land was stripped the forces of nature went to work, impervious to Hall's economic woes. Diffused surface water sped across the land toward the upper end of Lake Catherine. Silt, sediment and other pollutants began to be deposited in the lake. In the spring of 1980 Hall made an ineffectual attempt to fertilize and seed the property. The erosion continued apace.
Over the last three years, approximately 80 to 100 tons of silt and sediment have been deposited in the upper end of Lake Catherine per acre per year. A mud bar has been created in the northern end of the lake destroying spawning habitat. Suffice it to say that the ecology of the waters of Lake Catherine has been substantially adversely affected. The undisputed culprit is the eastern 12 acres or so of the Hall land, skinned in 1979 but now heavily rutted.
On April 30, 1982, the Lake Catherine Plaintiffs commenced this civil action. In a nutshell they charged that the Halls had been negligent in the use of their adjoining property to the northwest and that this negligence had proximately caused substantial damage to
Lake Catherine and their respective property rights therein. The Lake Catherine Plaintiffs further alleged that the damage was continuing. They demanded prohibitory injunctive relief restraining the Halls from any further deposits of silt or sediment into Lake Catherine as well as mandatory injunctive relief that the Halls restore Lake Catherine as nearly as practicable to its former condition. Plaintiffs further demanded monetary damages as well as a lien on the Halls' property to secure their performance of the requested injunctive relief. The Halls denied these allegations and demands for relief.
The matter was tried on its merits on June 21, 1982, in the Chancery Court, First Judicial District, Hinds County, Mississippi. On August 2, 1982, the Chancery Court released its opinion in substance holding for the Lake Catherine Plaintiffs. The Chancery Court recognized the rule
that any landowner has a right to develop his property and has the right to increase the flow of water [but that] he does not have the right to cause silt to be washed into the lower landowners.
Under that rule, the Halls were found liable.
The trial court then made clear that it
has no intention of trying to spell out exactly what should be done to stop the erosion.
The court's opinion concluded:
The Defendant, Leo Hall, should be required to do whatever is necessary to stop the erosion from land owned by him and his son into Lake Catherine and to proceed forthwith with whatever is necessary. Further, the Defendant, Leo Hall, is directed to remove the silt from Lake Catherine which has been previously eroded into Lake Catherine from his property.
The Plaintiffs have not specifically proved any damage to them but collectively they will ...