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GEORGIA PACIFIC CORPORATION, ET AL. v. L. A. ARMSTRONG

APRIL 25, 1984

GEORGIA PACIFIC CORPORATION, ET AL.
v.
L. A. ARMSTRONG



BEFORE PATTERSON, C.J., AND PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

This is an action against a lower riparian landowner and a timber company whose logging operations are said to have impeded the natural flow of waters off an upper riparian landowner's property. The Chancery Court of Attala County awarded Plaintiff, L. A. Armstrong, $12,000 in damages for injuries done to his farm by the flooding and enjoined further injury.

The Defendants, Georgia Pacific Corporation and Eleanor Scruby, now challenge the Chancellor's ruling as to liability, the measure of damages used, and the form of the injunction. Finding no reversible error, we affirm.

 L.A. Armstrong owns a 400 acre farm in Attala County. It is drained, in part, by a man made ditch known as the Okebo Canal. *fn1 To the west of Armstrong's farm is a timber tract owned by Mrs. Scruby, one of the Defendants in this lawsuit. She is Armstrong's lower riparian landowner. The Okebo traverses her land for a distance of about half a mile. The drainage provided by the Okebo Canal is at the heart of this lawsuit.

 On November 9, 1977, Mrs. Scruby deeded part of her timber to Georgia Pacific Corporation, Defendant below and Appellant here. The timber deed contained an indemnity clause wherein Georgia Pacific agreed to hold Mrs. Scruby harmless for any damage done to third parties by the logging operation. The removal of the timber was to take place within three years. The James Vardaman Company was to supervise the operation on Mrs. Scruby's behalf.

 All of the hardwood timber included in the deed was in the vicinity of the Okebo. Georgia Pacific sold this timber to Koppers Logging Co. which removed it from Scruby's land in 1978 and 1979. To facilitate their operations, Koppers constructed three or four log crossings on the Okebo. Each consisted of five or six logs placed in the canal parallel to its banks which were then covered with dirt. After the timber had been removed, Koppers neglected to dismantle its bridges. Moreover, a substantial number of

 treetops were left by Koppers which obstructed the flow of the canal.

 Following the logging operation on Mrs. Scruby's land, Armstrong's farm began to flood more than it had in the past. In 1979 and 1980, Armstrong was unable to plant ten acres of his land in soybeans, as he normally did, due to standing water in his fields which the Okebo no longer carried away. Portions of his land had always been subject to periodic flooding. Prior to the logging operation, however, the water would drain off in a matter of days. Afterwards, it would remain in Armstrong's fields for longer periods of time.

 In 1980, Armstrong dredged his portion of the Okebo and built levees with dirt from his own fields to contain the excess water. The levees occupied about three acres that he had been able to farm previously, and he removed the topsoil from another acre and a half to build the banks. Now, after heavy rains, the Okebo rises above the level of his fields by about three feet. If the levees broke, his fields would flood again.

 The record reveals that the tracts of land at issue are located in the Yockanookany River bottom which has been subject to periodic flooding for as long as anyone can remember. The original land grant describes the area as low and marshy, and in more recent times, the land in question has been included within the flood hazard boundaries established by the Department of Housing and Urban Development.

 Armstrong admits that his farm normally floods two or three times a year during periods of excessive rainfall. The record shows that in 1979 and 1980, rainfall in the region was respectively 86.7 inches and 59.77 inches. It rained 22 inches in April and May of 1979, and in 1980, 13 inches of rain fell in the same two months. 1979 was the year of the great Easter Flood, when an unprecedented amount of rain swamped this and other regions. It is also undisputed that beavers have been active on Scrub's land and except for the two years of the logging operation, they have built dams routinely in three or four places.

 A substantial number of slides and photographs of the Okebo were introduced at trial by both sides in their attempts to show the proximate cause of Armstrong's inadequate drainage. By stipulation of the parties, the Chancellor visited the portion of the Okebo that traverses Armstrong's and Scrub's land.

 In his judgment, the Chancellor specifically found that

 " the water flow of the Okebo Canal, where it traverses defendant Scruby's land, was substantially impeded by the defendant, Georgia Pacific Corp., allowing a number of trees, in excess of six inches in diameter, to fall and remain in said Okebo Canal on the defendant Scruby's land and that the defendant, Georgia Pacific Corp., negligently allowed the trees to remain in Okebo Canal and that as a result of said negligence on the part of the defendant, Georgia Pacific Corporation, the flow of Okebo Canal was substantially diminished to the extent that water was allowed to stand on the plaintiff's land, the upper riparian land owner, . . . and that as a result of the negligence the defendant, Georgia Pacific Corporation, the same being the sole proximate cause thereof, the plaintiff, L. A. Armstrong, suffered damages for the loss of full use and permanent injury to certain portions of his farmland and further damages for the cost of bulldozer work in mitigating further damage to his land in the total sum of $12,000. . . . "

 Finding that the plaintiff was substantially certain to suffer further irreparable future damage to his farmland, the Chancellor also issued a mandatory injunction. He ordered the Defendants to restore that portion of the canal that traverses Scruby's land to its condition prior to the timber cutting by Georgia Pacific. Eleanor Scruby was given ...


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