BEFORE ROY NOBLE LEE, P.J., ROBERTSON, AND ANDERSON, JJ.,
ANDERSON, JUSTICE, FOR THE COURT:
The City of Jackson alleges error in a jury award of $75,000 to Dr. Robert J. Keane for erosion damage to his land caused by the flow of the Caney Creek drain and for costs of improvements on the creek necessary to prevent further damage.
The jury received and considered evidence on the matter and found the city was in fact liable for the maintenance of the creek (a natural drain) and rendered a verdict for $75,000 in damages to the appellee. We see no error in the finding of liability and therefore affirm that part
of the judgment; however, we reverse and remand on the issue of damages.
Dr. Robert J. Keane in 1978, purchased a three and one-half acre tract of land in southeast Jackson for the sum of $30,000. The property was bounded on the west by a natural drain known as Caney Creek. The title to this creek is held by the State of Mississippi.
Keane filed suit against the City of Jackson in September 1983 seeking damages in the amount of $175,000. The complaint alleged that the city had assumed a duty to maintain the creek and its failure to do so had caused the resulting erosion damages to his property.
There was testimony that approximately 950 square feet of the appellee's property had been washed away, equalling about one-tenth of one percent of the land. There was further testimony that the erosion damage could be repaired by replacing the eroded soil. The cost of such repair would be between $8,000 and $15,000. However, this restoration was not recommended by the witnesses because replacement soil would be washed away with the next rain unless certain improvements were made on the creek. The appellee presented evidence that it would cost approximately $95,000 to improve the creek through a process "riprapping" .
The city has riprapped part of the creek and city employees testified that while they had cleaned debris from parts of the creek, both above and below the property of appellee, they did not clean the creek adjacent to appellee's property because it would have worsened the erosion problem.
It has been determined that since 1978 approximately the western one-third of appellee's property in question lies within the Caney Creek floodway. By current city ordinance no buildings can be erected in a floodway. Further, a real estate appraiser testified on behalf of the city that because the property was located in a floodway, there was no difference in the value of the land before and after the erosion occurred. He also stated that the current value of the property is approximately $30,000 per acre.
The city appeals from a jury award in the appellee's favor and assigns several points of error. We find it necessary to address only the assignment of error regarding damages.
I. DID THE TRIAL COURT ERR WITH RESPECT TO EVIDENTIARY RULINGS AND JURY INSTRUCTION RULINGS CONCERNING THE MEASURE OF DAMAGES, IF ANY, TO WHICH THE PLAINTIFF WAS ENTITLED?
The trial court granted Instruction P-5 which reads:
The court instructs the jury that if you find for the plaintiff, Robert J. Keane, the measure of his damages would be the cost to repair his property so as to put it in the same condition as it was before it was damaged. The reasonable cost of repair can include such measures, as may be reasonable and necessary, to prevent Caney Creek from damaging his property again.
As a further element of damage, if you find for the Plaintiff, Robert J. Keane, you may take into consideration the value of his property before the damage occurred in comparison to the value of the property after the damage occurred to ascertain what ...