Barnes v. Missouri Valley Construction Co.

165 S.W. 723, 257 Mo. 175, 1914 Mo. LEXIS 285

• Court: Supreme Court of Missouri
• Decided: April 2, 1914
• Status: Published

Opinion

BROWN, J.

Equity in the circuit court of Buchanan county to restrain defendants from constructing a.drainage ditch through lands claimed by plaintiffs. From a judgment dismissing plaintiff’s bill they appeal to this court.

Plaintiff’s petition does not so indicate, but it is disclosed by other parts of the record, that this litigation arose out of an order of the county court of Platte county organizing Drainage District No. 1 in said county, and in attempting to cause the construction of a ditch about five miles long, which ditch is intended to straighten the channel of Sugar creek and carry the waters thereof into the Missouri river. Sugar creek is described in the petition as a stream from four to six feet wide and one foot deep. It has a crooked channel and runs from northeast to southwest through a portion of Platte county, emptying into Little Sugar lake, situated about one mile from the Missouri river in said county.

The plaintiffs in their petition have diligently avoided all reference to the fact that the county court is seeking to construct a ditch to drain or otherwise improve lands situated in the above named drainage district. Said petition merely asserts, in a general way, that defendants fire threatening and about to enter upon designated lands of plaintiffs and unlawfully and maliciously cut down the banks of Sugar creek, dig up and destroy plaintiffs’ crops, fences, hedges, houses and barns, and turn the waters of said creek upon plaintiffs ’ lands, to their damage in the sum of many thousands of dollars.

Said petition further alleges the insolvency of all the defendants, and, in appropriate language, charges the absence of any adequate remedy at law to protect the property of plaintiffs.

Defendants, by their joint answer, assert that the Missouri Yalley Construction Company is under a contract with the county court of Platte county to construct a public drainage ditch along a right of way one hundred feet wide running across some of the lands claimed by plaintiffs.

Defendants further specifically plead the condemnation of said right of way for a drainage ditch by a judgment of the county court of Platte county entered on December 11, 1911, in a proceeding begun and prosecuted under article 4 of chapter 41, Revised Statutes 1909. The aforesaid judgment purporting to condemn the right of way for a drainage ditch is copied into defendants’ answer, and purports to recite the precise boundaries of the right of way alleged to have been condemned, and also asserts the jurisdiction of the county court to enter said judgment of condemnation.

Defendants deny any intention to enter upon or disturb any lands now owned by plaintiffs, and assert that plaintffs have heretofore instituted and maintained another suit which had for its purpose the prevention of the construction of the aforesaid drainage ditch, and pray that plaintiffs be enjoined from bringing any further actions, either at law or in equity, having for their purpose the prevention of or delay in digging said ditch.

The defendant Galen B. Anderson is a civil engineer, appointed by the county court of Platte county to assist in surveying the right of way for the aforesaid drainage district; and defendant J. W. Harrington is a clerk of the county court of Platte county. They each deny any intention of doing anything about or concerning the lands of plaintiffs, except such acts as they are required to perform in their respective capacities as officers of said county court.

The reply of plaintiffs is a general denial of all allegations in defendants ’ answer.

The plaintiffs filed a motion to strike out several parts of defendants’ said answer, which motion was overruled, and thereupon defendants filed a motion to dissolve the temporary restraining order issued by the circuit court of Platte county at the time this suit was instituted, on the following grounds: (1) No equity on the face of the petition; (2) a complete defense set up in defendants’ answer; (3) and want of jurisdiction on the part of the court to determine the matters in issue.

The plaintiffs filed a motion praying for judgment on the pleadings, which motion was overruled.

When the case was called for trial the plaintiffs insisted that the answer of defendants was in the nature of a confession and avoidance, and, therefore, the burden of proof should be cast upon them. The trial court seems to have adopted the plaintiffs’ suggestion in this .respect.

The evidence of defendants tended to prove that at the November term, 1908, of the county court of Püatte county one Silas Berry and nine other persons owning lands adjacent’ to Sugar creek in said county filed a petition praying that a ditch be constructed so as to straighten the channel of said creek and turn the waters thereof into the Missouri river,- and that the cost of constructing such ditch be taxed against the lands which would be benefited by said improvement. Said petition contains all the recitals required by section 55791, Revised Statutes 1909, except that it omits to recite whether the petitioners desire the issuance of bonds to raise funds to make the contemplated improvement. This omission does not seem to be important as there has been no attempt to issue bonds.

On Monday, March 1, 1909, the county court of Platte county heard the petition of said Silas Berry et al., as well as thirteen remonstrances or exceptions to said petition, and finding that the ditch prayed for was practicable and would be of great public utility in preserving the lands of petitioners and the public health, ordered that the ditch be constructed, and that the lands to be benefited thereby should constitute Drainage District No. 1 of Platte county, Missouri, which order described the lands to be included in said district.

Said order of Mlarch 1, 1909', recited the publication of a notice in a weekly newspaper published in Platte county of the contemplated improvement and intended incorporation of said drainage district, as required by section 5581, Revised Statutes 1909'.

On August 2, 1900, the county court approved the report of the commissioners appointed by it to view, survey and locate the precise boundaries and route of the proposed drainage district; and on said last named day Ordered and directed Galen B>. Anderson, its engineer, to let a contract for the construction of said proposed ditch.

On October 1, .1909, seven of the plaintiffs in the present injunction suit, with thirteen other landowners of Drainage District No. 1 of Platte county, instituted a suit in the circuit court of that county to restrain Galen B. Anderson, the engineer, the clerk and members of the county court from letting any contract to construct the proposed drainage ditch. The petition in said suit is very similar to the one filed in the present action. It does not admit that any drainage district has been organized, but alleges, generally, the want of legal authority or power on the part of the county court of Platte county and the engineer ’to let a contract for constructing the proposed ditch; averring irreparable injury, etc. In short, the petition in that action is a collateral attach upon the drainage proceeding' before recited without referring to them or praying the dissolution or disincorporation of the district. This last mentioned suit was tried in the circuit court of Jackson county on February 6, 1911, and the following final judgment entered therein in favor of the plaintiffs:

“That the judgment and orders made by the county court of Platte county, Missouri, on July 26, 1909, and August 2, 1909;, providing for advertising for bids for letting and making contracts and constructing and digging of public ditch across the lands of plaintiffs named in their petition herein are void, and that defendants have no authority under said orders and judgments of said county court to advertise for bids, or to let, make or enter into any contract for the construction of, or to dig said public ditch across said lands of plaintiffs.

“The court orders that the defendants, and all of them, be, and they are hereby restrained and enjoined from advertising for bids for and from letting, making or entering into any contract for the construction of, and digging of said public ditch, under said judgments, orders of said county court of Platte county, Missouri, made on July 26, 1909, and August 2, 1909; and defendants are enjoined and restrained from entering upon the lands of plaintiffs, or ordering, authorizing, directing or causing other parties so to do, for the purpose of construction of, or excavating or digging said public ditch under said orders and judgments of said county court, so made on the 26th day of July, and the 2nd day of August, A. D. 1909.”

The above judgment was introduced by defendants over the objections and exceptions of plaintiffs. Neither party has pleaded said judgment in this action.

No appeal or writ of error was prosecuted front the above recited judgment, but after the rendition thereof the county court of Platte county appointed an engineer and viewers (the same parties who had theretofore served in that capacity) to resurvey and correctly locate the boundaries of Drainage District No. 1 of Platte county, and to re-survey and locate the precise boundaries of the proposed drainage district, find make a report of the benefits which would accrue to the lands in said district by the construction of said ditch, as well as the damages which would be sustained by landowners through the condemnation and appropriation of a right of way for said ditch through their lands. Said report to also contain a statement of the estimated cost of the proposed ditch.

At the May term, 1911, of said county court the viewers and engineer filed their report as directed and required by the order of the county court.

There was also introduced in evidence, but not pleaded, some memoranda concerning a suit prosecuted in the United States court to prevent the construction of the ditch over which this controversy arose, but it appears that said last mentioned suit was dismissed by mutual consent of the parties thereto, so that it need not be considered in this action.

About two months after the filing of the last report of the viewers and engineer, to-wit,' on July 3, 1911, the county clerk of Platte county issued and published a notice to landowners fixing August 7, 1911, as the date for hearing exceptions to said report and the benefits assessed and damages awarded therein. Further details of this notice will receive attention in our opinion. Upon the publication of the last mentioned notice, the proceeding's to construct the proposed ditch were continued until November 6, 1911, when the county court, without quashing the notice issued on July 3,1911, or dismissing the cause as to any person then in court, caused a new notice to be issued to landowners returnable on December 11, 1911.

‘ On December 11, 1911, the county court of Platte county, after reciting that it had acquired jurisdiction over all the persons owning lands in Drainage District No. 1, rendered judgment approving and confirming the last report of the viewers and engineer condemning the right of way for the ditch, and directing the letting of a contract for its construction. It is under and pursuant to this last mentioned judgment that defendant Missouri Valley Construction Company is threatening to dig the ditch about which plaintiffs complain.

In the finding of fact by the honorable circuit court of Jackson county, where this cause was heard on a change of venue, it is recited that the notice issued on July 3,1911, to landowners, was sufficient to confer jurisdiction upon the county court to render the judgment of December 11, 1911, and accordingly the plaintiffs’ bill was dismissed.

The plaintiffs’ motion for new trial assigns, in general terms, sundry errors of the trial court, all of which may be considered under the assignments that the judgment is for the wrong party, and that the trial court “disregarded and failed to consider either the law or the evidence in rendering the judgment.”

OPINION.

Municipal I. Quite a mass of the thousand pages of evidence introduced by plaintiffs was directed toward overturning or showing the invalidity of the order 0f the county court of Platte county organizing Drainage District No. 1 of .said county, where defendants threaten to construct the proposed ditch.

Said drainage district being a municipal corporation of this State, the legality of its organization cannot be collaterally assailed, nor even inquired into at tbe suit of an individual. This doctrine is -supported by tbe following cases: State ex rel. Coleman v. Blair, 245 Mo. 680; State v. Fuller, 96 Mo. 165; The Catholic Church v. Tobbein, 82 Mo. 418; Burnham v. Rogers, 167 Mo. 17; and School District No. 35 v. Hodgin, 180 Mo. 70, l. c. 78.

Former Adjudication. II. The plaintiffs strenuously objected to the introduction of the judgment entered by Judge Powell of the Jackson circuit court sustaining the first injunction suit brought by soihe of. the plaintiffs and others to restrain the county court and its officers from letting a contract to construct the proposed ditch. At the time of the trial plaintiffs did not think enough of that judgment to plead it as an estoppel to the defenses set up in the answer, yet in their briefs and argument ore terms plaintiffs lean heavily on the decree of Judge Powell to secure a reversal of this case, and even assert that Judge Powell’s decree dissolved the drainage district.

The most casual inspection of Judge Powell’s decree, copied in our statement, will demonstrate that it only purports to restrain the advertising for and the letting of a contract to construct the ditch. "Whether that judgment could be given an effect beyond the power of the court to grant in a suit instituted and maintained by individuals, we need not decide, because it did nothing beyond what it purported to do. It restrained the letting of a contract to construct the ditch, and while the particular reasons for granting that relief are not recited in the decree, it is most probable that the decree rests upon the insufficiency or inaccuracy of the first survey of the proposed ditch; or the invalidity of the judgment entered by the county court in 1909 ordering said ditch constructed and attempting to condemn the right of way therefor. All of said defects may be and we hold that they were, cured by a subsequent survey of tbe right of way and a decree of the county court entered on December 11, 1911, which decree is now pleaded by defendants as their authority for constructing the ditch.

DeadAMannSt III. We will now consider such errors as defendants think they have found in said drainage proceedings. First, it is contended that the c°unty court acquired no jurisdiction over the owners of a certain tract of land in the drainage district reported by the viewers as belonging to one D. W. Hutson, because said Hutson was dead long prior to the filing of the petition to organize the drainage district. Granting that a suit begun and prosecuted against a dead man is void as to him, yet under the facts hereinafter recited we think appellants’ contention is unsound. The defendants have introduced deeds establishing the fact that the title of D. W. Hutson in and to lands in the drainage district was divested out of him during his lifetime, and invested in other parties, some of them plaintiffs in this action. The notice issued to landowners on July 3, 1911, by the county clerk of Platte county was directed to some of the plaintiffs in this action and generally to all other persons owning lands to be affected by the proposed drainage ditch. That notice complied with section 5587, Revised Statutes 1909, and was sufficient to give the court jurisiction over each and every person owning. lands within the drainage district, and the appellants, who were then part owners of the D. W. Hutson lands, were accorded every opportunity required by law to appear in the county court and resist the judgment condemning the right of way for the proposed ditch. ■

In the case of State ex rel. Coleman v. Blair, recently decided by this court (245 Mo. 680), it was held not necessary in the notice to landowners of the' assessment of benefits and awarding of damages arising ont of tbe constrnotion of a proposed drainage ditch to designate every person appearing by the deed records to own lands within the district. The names to be inserted in the aforesaid notice are usually obtained by the viewers while inspecting and locating the right of way for the ditch, and such notice should, in addition to the names returned by the viewers, also designate generally all other persons whose lands will be affected by the proposed improvements. Such notice, when duly published, is due process of law. [State ex rel. Coleman v. Blair, 245 Mo. l. c. 696-7, and cases there cited.]

survey IY. A further contention of plaintiffs is that the last survey of the right of way of the proposed ditch is inaccurate, in that it does not describe eorrectly the 100-foot strip of land upon which defendants are threatening to enter and construct the ditch. At the trial the plaintiffs introduced a surveyor and civil engineer by the name of Steininger, who testified that he had gone over the survey of the right of way for the proposed ditch as copied into defendants’ answer, and that at one point in said survey there was a break or lack of continuity, whereby a strip of land twenty feet wide on the boundary of the right of way and narrowing to a point at the center of such right of way, was never surveyed or condemned; also that at another point, for a distance of 200 feet, the right of way was 150 feet wide, instead of only 100 feet as claimed by defendants. The plaintiffs’ .witness further stated that he did not consider this last defect to be serious, and that it was probably caused by the fact that the section of land where the ditch is to be constructed is longer than it was thought to be by the viewers appointed to condemn the right of way. When this evidence came in the defendants requested, and were granted, permission to amend their answer to conform to the proofs, and the answer was accordingly amended, but the amendment is not definitely set out in the record.

We do not consider the defects complained of in this paragraph to be of snch a serious nature as to justify an injunction against the construction of the ditch. If the final report of the commissioners and engineer appointed to survey and locate the right of way is correct the judgment entered by the' county court can be amended nunc pro tunc, and, at any event,, as the right of injunction is a matter of grace rather than of right, we are constrained to hold that the defects mentioned are not of such a grave character as to justify the reversal of the judgment. [Johnson v. United Railways Co., 227 Mo. 423, l. c. 450.]

If there be any fragment of the land over which' the defendants are about to construct the ditch whiclr has not been condemned, there would be nothing to prevent the owner of such fragment from maintaining an action against the drainage district for his damages after the ditch has been constructed. [Secs. 5598 and 5599, R. S. 1900.]

Under section 5583, Revised Statutes 1909, the drainage district may sue and be sued, and- it cannot, be considered as insolvent, as power is expressly conferred on the county court to levy taxes to pay the-expenses of condemning or purchasing such additional lands as the district may need for a right of way. [Sec. 5588, R. S. 1909, as amended by Laws of 1913, p. 274.]

owners*0 Land second Notice. V. Plaintiffs’ resourceful .counsel further contend that by causing to be issued a new notice to landowners on November 6,1911, the county court nullified the notice issued by its clerk on July 3rd of that year, but we find that contention cannot be sustained. If the landowners were brought into court through the July notice there is no reason for contending, that they were released by an additional notice which need not have been given. [Burnes v. Burnes, 61 Mo. App, 612.] We find nothing in the evidence indicating an intention on the part of the county court to release its jurisdiction over any landowner who was served by the notice issued in July and returnable in August, 1911. The continuance of the cause to furnish time to publish another unnecessary notice gave the appellants additional time to appear and contest the assessment of benefits and the awarding of damages by the viewers,' and the appellants cannot be heard to complain of a mere irregularity which did not prejudice them in any way'

The plaintiffs have not pointed out any defect in the notice to landowners issued on July 3, 1911, and we have not found any error therein which would impair the jurisdiction of the county court to render the judgment which it did enter on December 11, 1911, condemning the right-of-way for the proposed ditch. Warrants were issued by the county court and tendered to such of the appellants as could be found in Platte county for the damages which were awarded to them by the commissioners who-surveyed the right of way, and the refusal by plaintiffs to accept the warrants tendered to them is not a matter of which they have a right to complain.

Evidence VI. During the trial the plaintiffs offered to prove that their lands would be injured by the construction of the proposed ditch, but this evidence was excluded. We do not see how the trial court collld have ruled otherwise. The General Assembly has confided to the county court the power to pass upon such question, as well as the propriety or wisdom of organizing the drainage district, and while no appeal has been provided for from its decision declaring a district organized, if more appeals are needed the Legislature alone can grant that relief. [Millar v. Transit Co., 216 Mo. l. c. 103.] The appellants were given due notice and an ample opportunity to present their grievances to the county court, and if they have failed to do so the fault must rest upon their shoulders. A defendant cannot choose the forum where his contentions shall be litigated; he must use the forum which the General Assembly has provided, and into which he has been summoned.

Not¡ce°f Yll. It is also contended by plaintiffs that the publication to landowners issued on July 3-, 1911, is void, because not issued immediately upon ^ie the final report of the viewers and engineer. Said notice was in fact not issued until about two months after the report of the viewers was filed.

Publication or voluntary appearance are the only methods of obtaining jurisdiction of landowners in a proceeding to drain lands under article 4, of chapter 41, Revised Statutes 1900. The names included in the notice were the names of the persons designated in the report of the viewers as owning the several tracts of land in the drainage district. If the plaintiffs in this cause had purchased their lands after the report of the viewers was filed, and before the notice was published, they might be in a better position to complain of the delay in issuing'and publishing the notice, because a notice directed to former landowners might not be as likely to reach or command the attention of the present owners as if it were directed to such present owners by name as designated in the viewers’ report.

The notice now under consideration should have been, and was, directed by name to the persons owning lands in the drainage district as reported by the viewers and engineer. It was also directed generally to those having: lands which would be affected by the proposed ditch, and as it does not appear that any of the plaintiffs purchased their lands in the district after the report of the viewers and engineer was filed they were in no way prejudiced by the clerk’s failure to issue and publish the notice more promptly.

The filing of the report of the viewers occupies a very similar position in law to the filing of an affidavit alleging the nonresidency of a defendant in an action against such nonresident. In that class of cases it is a general rule in this State that where the order of publication is in fact issued upon a proper affidavit, and is published in accordance with the requirements of the statutes, a judgment based on such order of publication is not invalid because the order was not issued and published at the very time it was applied for. [Whinnery v. Missouri Lumber & Mining Co., 231 Mo. 262; Kane v. McCown, 55 Mo. 181; Johnson v. Gage, 57 Mo. 160.]

Section 2119', Revised Statutes 1909, ordains that “judgments shall not be . . . impaired, or in any way affected by reason of . . . any default or negligence of any clerk or officer of the court . . . by which neither party shall have been prejudiced.” This is the rule to be applied when judgments are assailed by appeal or writ of error, and there are stronger reasons why it should be applied when, as in this case, the judgment of a court of competent jurisdiction is subjected to collateral attack. The delay in issuing and publishing the notice did not constitute such error so as to deprive the county court of jurisdiction.

AffUav'trS Yin. A further insistence of plaintiffs is that there is no competent evidence that the notice to landowners was ever published, there being a defect i-11 the jarat to the affidavit of the printer, whereby it was made to appear that such affidavit was sworn to before the notice was published. This insistence cannot be sustained for the reason that the county court made a specific finding that due and legal notice had been given to all persons owning lands within the drainage district except those who had voluntarily entered their appearance. That court was not restricted to the printer’s affidavit, but could receive oral evidence that the notice was published in a newspaper in the manner required by law. It is presumed to have heard such oral evidence when its judgment is assailed collaterally. [Robbins v. Boulware, 190 Mo. 33; Raley v. Guinn, 96 Mo. 263.]

IX. After a laborious inspection of a voluminous record we are convinced that the judgment of the circuit court was for the right party and should be affirmed. It is so ordered.

Lamm, G. J., and Woodson, Graves, Faris and Walker, JJ., concur; Bond, J., concurs in the result.