* Corpus Juris-Cyc. References: Drains, 19CJ, p. 697, n. 41 New. The Short Bayou drainage district was organized under chapter 195, Laws of 1912, as amended by chapter 269, Laws of 1914, and comprises about nine thousand acres. It projected its main drainage canal across the right of way of the appellee, the Yazoo Mississippi Valley Railroad Company, along a depression and natural drain for surface water under the tracks of the railroad company. Over this depression and natural drain, the railroad company maintained a fourteen-foot trestle for many years, but several years ago it substituted therefor a fill under which there was a culvert three feet in diameter. In order to construct this drainage canal, it was necessary for the railroad company to open its roadbed for the passage of the dredge boat and canal, and to reconstruct its roadbed by building a bridge where the fill and culvert had formerly been. The drainage canal, when completed, was twelve feet wide at the bottom, ten feet deep, and thirty-two feet wide at the top. Prior to the opening of this canal across its right of way, the railroad company submitted to the drainage commissioners an itemized statement of the estimated cost of the work and the damages to be sustained by reason thereof, as provided by section 16, chapter 269, Laws of 1914, and, after completion of the work, it presented its claim for the actual expenses and damages sustained by it, and prayed for an allowance of the claim.
A protest on behalf of the citizens and landowners of the district was filed, and, at the same time, the drainage district presented a bill against the railroad company for six hundred nineteen dollars and twenty-four cents to cover the expense to the district of excavating under the railroad at the point in question. The drainage commissioners, at a regular meeting, considered the claim of the railroad company and disallowed it, and thereupon the railroad company prosecuted its appeal to the chancellor. At the trial in the chancery court, testimony *Page 39 was introduced by the respective parties, and it appears, without dispute, that the railroad company actually expended the amount in controversy as the direct and necessary result of the construction of the drainage canal across its right of way. It was shown that the railroad company was not permitted to place in the canal the obstructions that would have been necessary to construct a trestle and, consequently, that a bridge was necessary. It was not denied that the amount in question was fairly expended, nor that the bill or claim of the railroad company was correct, but the drainage district merely denied liability therefor. The chancellor rendered a decree in favor of the railroad company against the district for the sum of two thousand six hundred seven dollars and four cents, the amount of the claim, and disallowed claim of the district for excavating across the right of way, and from this decree the district has prosecuted this appeal.
We think the question presented by this appeal may be disposed of by a construction and application of section 16, chapter 269, Laws of 1914, which amended section 27, chapter 195, Laws of 1912, and which reads, in part, as follows:
"Sec. 27. That the commissioners of the district shall have the right and power to carry the ditches, either main or lateral, across any highway, and the board of supervisors shall construct suitable bridges across such ditches. Such ditches may also be carried under or through any railroad track or tramway and in such event the commissioners of the drainage district shall notify the railroad company or owner of said tramway or telegraph or telephone companies, operating lines of telegraph or telephone under or through which it is proposed to carry such ditches, of the probable time at which the contractor will be ready to enter upon the right of way of any of said companies and construct the work thereon. It shall thereupon be the duty of any of said companies or owners of said lines of railway, telegraph *Page 40 or telephone lines, to send a representative to view the ground with the superintendent of construction or other person appointed by the commissioners and arrange the exact time at which the said work can be most conveniently done. At the time agreed upon, said railroads, or owners thereof, shall remove all rails, ties, stringers and such other obstructions as may be necessary, and such owners of telegraph and telephone lines shall remove all wires, poles and other obstructions, as may be necessary, to permit the excavation of a channel or channels through its right of way. The work so done shall be planned and conducted so as to interfere in the least possible manner with the business of said railroad, telegraph and telephone companies. In case any of such persons or corporations refuse and fail to remove any of said obstructions and to allow the construction of the work through its right of way, it shall be held as delaying the construction of a public work and improvement and shall be liable to a penalty not to exceed fifty dollars ($50) per day for each day of delay thereof, and all damages sustained by the district or contractor, to be recovered in any court having jurisdiction and such penalty shall inure to the drainage district. And such damages shall inure to the person, firm or district damaged. An itemized bill of the expenses of the railroad company for opening its track shall be made and presented to the commissioners of the district at some day previous to the day set for passing through said right of way and a like itemized bill of expense attending the removal of wires and poles of telegraph and telephone companies shall be so presented, including all damages that will be sustained by any of said companies by the construction of said work; whereupon the board of commissioners shall allow and pay such part thereof as it sees fit and proper, from which allowance either of said companies shall have the right of appeal to the chancery court, or chancellor in vacation, but such appeal shall not operate so as to prevent the drainage commissioners from constructing its proposed *Page 41 work through the rights of way of any of said companies."
Before section 27, chapter 195, Laws of 1912, was amended by section 16, chapter 269, Laws of 1914, it merely provided that the commissioners of the drainage district should have the right to carry its ditches "under or through any railroad track or tramway." As amended by said section 16, chapter 269, Laws of 1914, this section sets forth in detail the mutual rights, duties, and obligations of a drainage district and a railroad company in regard to the passage of drainage districts through or across the right of way of such railroad company, and provides that before the work is done the railroad company shall file with the commissioners of the drainage district an itemized bill of the expenses of the railroad company for opening its track, including therein a statement of all damages that will be sustained by the company as a result of the construction of this work. It is further provided that the board of drainage commissioners shall allow and pay such part of this bill or claim for expenses and damages as it sees fit and proper, and that the railroad company shall have the right of appeal to the chancery court, or the chancellor in vacation, from the action of the board upon such claim. The provision requiring the commissioners to allow and pay such part of the claim as it sees fit and proper does not authorize such commissioners to arbitrarily refuse to allow such claim. The itemized bill or claim for expenses and damages referred to in this section is required to be filed with the commissioners before the work is done, and is necessarily an estimate. After the completion of the work the commissioners should pass upon, and allow and pay such part thereof as is found to be the necessary and direct result of the construction of the drains across the right of way of the company. Under this provision, the drainage commissioners are authorized to fix and determine the amount of expenses and damages that are the direct, necessary, and proximate result of the improvement, and *Page 42 from the allowance so fixed and made the railroad company has the right to appeal to the chancery court, or the chancellor in vacation, and thereby secure a review of the action of the board in fixing and determining the amount of this expense and damage.
The appellant contends that this provision of the statute only requires the allowance of the expenses of the railroad company for opening its track, and does not cover the expense of restoring the track and roadway or the expense of building a bridge across the drainage canal. We do not think the provisions of this section can be so limited. The expense of replacing the roadbed in a condition that will be safe for the traveling public is, of course, necessary. That to meet this necessity, the construction of a bridge was required is not controverted. The statute provides for the payment by the drainage district of the expenses of the railroad company for opening its track and roadbed, and also for all damages that will be sustained by it as a result of the construction of the drainage work, and the necessary expense of replacing its roadway is manifestly an expense or damage directly and proximately resulting from the construction of the work.
The decree of the court below will therefore be affirmed.
Affirmed.