Opinion of the court.

did it become discharged? Was it by the effort to make the charge effective? If an effort to enforce an encumbrance prove abortive, does that destroy the encumbrance? It was never so heard. This is a plain case. It has been maturely considered, and

we do not have a doubt of the correctness of our decision of it. Any other result would be monstrous, as it appears to us. We have not engrafted an exception on the statute of limitations. It has nothing to do with the case. We have opened a sale made years ago under circumstances we could not approve, that it may now be made for whom it may concern, as it should have been before.

Of course, according to principle and all precedent, the proceeds of the sale must take the course they would have followed had the sale before been made as it should have been,

Denied.

BOARD OF LEVEE COMMISSIONERS v. CHARLES JOHNSON ET AL.

1. EMINENT DOMAIN. Right of lessees.

When land is condemned under the right of eminent domain, the lessee of the land, as owner of the term, is entitled to notice and to damages, as any other owner.

2. SAME. Not dependent on record or notice.

Inasmuch as a lease for one year need not be in writing, or recorded, the right of a tenant of land thus leased when taken under condemnation proceedings, is not affected by the fact that the party securing the condemnation deals with the landlord, without notice of the tenant's interest.

3. SAME. Payment of damages to landlord. Tenant not bound.

If, in such case, the value of the term and of the growing crops of a tenant, be awarded and paid to the landlord, this affords the party condemning the land no protection against a suit therefor by the lessee.

4. SAME. Leased land. Damages apportioned.

Where the whole of the leased premises are condemned the relation of landlord and tenant is thereby dissolved, and the present value of the land should be apportioned between the landlord and tenant, according to their respective rights.

5. CONDEMNATION OF LEASED LAND. Effect upon tenancy.

The taking of a portion of leased premises under the power of eminent domain operates as an apportionment of the rent, and dissolves the relation of landlord and tenant pro tanto.

6. DAMAGES FOR LAND CONDEMNED. Rule of apportionment.

In such cases the rule of apportionment is to give to the landlord the value 248

Statement of the case.

of his reversion in the land taken, and the rents reserved thereon during the term, less an abatement for present payment; and to the tenant the value of his term in the same, less the rent reserved thereon.

7. BOARD OF LEVEE COMMISSIONERS. Remedy for land taken by it. The remedy conferred by the charter of the board of levee commissioners (Acts 1884, p. 166) for condemning land, and securing damages in favor of the owner is exclusive, and no resort can be had to any other remedy by one claiming damages on account of the appropriation.

8. CONDEMNATION. Commissioners to appraise. How damages ascertained. Ordinarily the award of damages precedes the appropriation and injury, and is made upon a view of the land; but, as the charter allows the owner one year after the appropriation in which to invoke the remedy, this cannot be held, in all cases, an essential requirement. If the commissioners act on doubtful evidence, the award is not for that reason void, but the aggrieved party may appeal, and thus secure a jury trial, with the usual means of proof.

APPEAL from the circuit court of Bolivar county.

HON. J. H. WYNN, Judge.

With the exception of the instructions in reference to the measure of damages, the case is sufficiently stated in the opinion. The instructions in reference to the measure of damages, given for the plaintiffs, were as follows:

"1. The court instructs the jury that they must not take into consideration, in estimating the damages to plaintiffs, any allowance for the rent due on the lands, nor any payments made to him by defendant, but the jury must allow to plaintiffs the full cash market value of the cotton destroyed.

"2. The court instructs the jury, that if they believe from the evidence, that the plaintiffs rented the land upon which the cotton in controversy was grown from Mayson for the year 1886, the land for that year was under the control of said plaintiffs, and all the cotton grown on such land was the absolute property of said plaintiffs, and the jury must assess as damages to the plaintiffs the cash market value of the crops of said plaintiffs, which they find was destroyed by the levee board in the construction of said levee."

For the defendant the court granted the following instruction : "1. The court instructs the jury that plaintiffs in this suit are en

Brief for appellant.

titled to recover the value of their crops growing upon the right of way at the time it was taken for levee purposes, that is, the actual cash market value of the crop, as it stood in the field when the land was occupied for levee purposes, and in arriving at this value the jury can take into consideration the amount of cotton on the stalk, the cost of getting it out, ginning it, getting it to market, the lateness of the season, and all other considerations which would have influenced a prudent business man in the purchase of said crop at that time, if it had been offered to him, and the true criterion is the price that said crop could have been sold for as it stood for cash, a reasonable time being given in which to make the sale."

The following instruction, asked for by the defendant, was refused by the court:

"2. The court instructs the jury that the plaintiffs in this case are entitled to recover of the defendant the actual market value of the cotton as it stood in the field upon the right of way taken for levee purposes, at the time such land was actually taken for the purpose of being occupied by the levee, and if the jury believe from the evidence that the damages suffered by the landowner, Mayson, by reason of the construction of the levee through the property, had been, prior to the institution of this suit, assessed by commissioners appointed under the law for that purpose, and that, in making up that award, they had taken into consideration and awarded to Mayson, as an element of damages sustained by him, the value of the crop upon the land for which these plaintiffs now ask damages, and that plaintiffs were tenants of said Mayson at that time, and rented the land upon which the crops in question grew at an annual rental of eight dollars per acre, and that said damages were paid to Mayson, then that for the amount of land so occupied, this payment relieved the tenants from the obligation of paying rent thereon, and in this action they can only recover the value of the crop on the land, less the rent of said land, eight dollars per acre."

Yerger & Percy, for appellant.

1. The facts stated in defendant's answer, and admitted to be true by the demurrer, estopped the plaintiffs from setting up any

Brief for appellant.

claim for damages. It is substantially stated there that the value of the cotton destroyed, for which damages were claimed, was included in the award made by the commissioners to Mayson, the landlord; that at the time of the award it was not of record that plaintiffs had any interest in the land condemned or the crops thereon, and it was unknown alike to the commissioners and the appellant. The landlord represented that he was the owner of the cotton on the land, and plaintiffs, though aware of the destruction of the crop and the assessment of damages, asserted no claim of ownership, but by their presence and silence acquiesced in the claim of ownership made by Mayson, and during the continuance for eight months of the suit by Mayson, claiming such damages, they asserted no claim of ownership, but only did so after appellant had paid the value of the cotton to Mayson. Herman on Estoppel, § 432; Upshaw v. Gibson, 53 Miss. 341.

This conduct not only misled appellant, but was acted on by it. If at any time before payment of the damages to Mayson plaintiffs had asserted their claim, appellant could have avoided the payment of this item of the damages to Mayson, and avoided a double payment.

2. The court should have dismissed the cause for want of jurisdiction. The commissioners, under the charter, are strictly a commission of viewers. The warrant to them directs them "to go upon the ground or where said property is, and view the same and make their award." So we have here commissioners appointed and directed in 1887 to go upon land and view cotton destroyed in 1886, and estimate its value. It would have been easier for them to have gone upon the land, and by viewing it estimate the depth of last winter's snow. The commissioners had no authority to act except upon a view of the property.

It was error for the court to refuse the instruction asked for by defendant, as to the measure of damages, and to give those asked for by plaintiffs. The true rule is given in Mills on Eminent Domain, § 68 et seq. "The landlord in case of a condemnation of the whole property is entitled to the present value of the rents to become due during the term, and the tenant to the present value