Little River Drainage District v. Tomlinson

149 S.W. 454, 245 Mo. 1, 1912 Mo. LEXIS 214

• Court: Supreme Court of Missouri
• Decided: July 2, 1912
• Status: Published

Opinion

GRAVES, J.

— The facts of this case are few and undisputed, and are correctly stated by counsel for the appellants in the- following language:

“This is a proceeding for the enlargement of the territorial limits of the Little River Drainage District, under See. 5500, R. S. 1909.

“The petition or articles of association, praying for the incorporation of the Little River Drainage District, -were first filed in September, 1905-, in the •office of the clerk of the circuit court of New Madrid county, that county having a larger area of wet and overflowed lands situated within its limits than any other county in said district.

“Afterwards, in 1906, by an order of the circuit court of New Madrid county, the venue in said cause was changed from the circuit court of that county to the circuit court of Butler county, Missouri.

“Afterwards, on the 30th day of November, 1907, the circuit court of Butler county, Missouri, duly declared and decreed the Little River Drainage District a public corporation of this State.

“Subsequent to its incorporation, the landowners ■of the district met, upon the call of the clerk of the Butler Circuit Court, organized by electing John H. Himmelberger, Alfred L. Harty, Charles W. Henderson, A. J. Matthews and S. P. Reynolds supervisors of said district.

“The supervisors organized themselves into a board by electing John H. Himmelberger, president, and A. J. Matthews, secretary. The board of supervisors then appointed a chief engineer and two assistant engineers, who in due time made a complete topographical survey of the lands within the drainage district for the purpose of ascertaining and determining the most economical, feasible and practical way of reclaiming the lands in said district from the effects of overflow and damage by water.

“After these surveys, maps and profiles were made, the board of supervisors employed Isham Randolph of Chicago, and Arthur E. Morgan of Washing City, D. C., then chief of the Bureau of Drainage •Investigation of the Department of Agriculture, as consulting engineers,. who with the chief and assistant engineers of the district formulated and submitted a plan for draining and reclaiming the lands in said district.

“After a thorough investigation of the- plan for drainage, submitted by the engineers, the board of supervisors adopted said plan and caused a copy of the same to be filed in the office of the clerk of the circuit court of Butler county, Missouri, as provided for in See. 5514, R. S. 1909', that court having incorporated said district.

“In making the surveys of the lands within the drainage district it was discovered that there were about forty thousand acres of wet, swampy and overflowed lands adjacent and contiguous to the lands embraced within the district, which were also in need of drainage and reclamation. It was also found that the greater part of these lands adjacent to the lands* in the district were made wet, swampy and unfit for cultivation by reason of the overflow and the spreading of the waters from the Castor river and other streams flowing down from the hill country, north of said drainage district. It was also discovered by these engineers that these outlying lands could be, ■and would be improved, reclaimed and made fit for agricultural purposes by preventing the headwaters of the Castor and the other hill streams from flowing 'down and over them, and that the ‘plan for drainage’ adopted by the board of supervisors would, when executed, improve or reclaim said lands from their wet, swampy and overflowed condition.

“Thereupon the board of supervisors of the Little River Draihage District, for and in behalf of said drainage district, filed in the circuit court of Butler county, Missouri, a petition bottomed upon Sec. 5500, R. S. 1909, setting up the foregoing facts and praying that the boundary lines of the Little River Drainage District, as established at the time of its organization, November 30, 1907, be extended and enlarged so as to include within the limits of the Little River Drainage District all of the outlying wet, swampy and overflowed lands that were contiguous to the lands within the district, and that the lands thus improved and benefited should be subjected to all the assessments and benefits as the lands embraced in the original district.

“Amongst the lands thus sought to be brought within the limits of the Little River Drainage District is 107.06 acres, belonging to this respondent, T. E. Tomlinson, situated in Scott county and being contiguous to and adjoining the eastern boundary of said district.

“At the return term of said cause, to-wit, January term, 1911, of said circuit court of Butler county, Missouri, the respondent, T. E. Tomlinson, appeared and filed a motion to dismiss the plaintiff’s petition and cause of action for want of jurisdiction in the circuit court of Butler county, Missouri. The motion was taken up by the trial court on the 11th day of January, 1911, and after a hearing and argument, the court sustained the respondent’s motion and dismissed the appellants’ cause of action for want of jurisdiction.

“From this ruling and judgment of the trial court, after the filing and overruling of a timely motion for a new trial, the appellants have prosecuted an appeal to this court.

“The main question that is raised by the record in this case is: ‘Which circuit court has jurisdiction to hear this petition of the Little River Drainage Distant for the enlargement of its boundaries?’ 'The circuit court of New Madrid county, in which the articles of association were first filed, or the circuit court of Butler county, to which said articles of association were subsequently sent by change df venue,, and which last court declared and organized said drainage district to be a public corporation of this State,, and still retains jurisdiction of said cause?

“The appellants contend that the. latter court! has sole jurisdiction of the Little River Drainage District without regard to where its articles of association were first filed, and without regard to county and judicial lines; that the statute vests the circuit, court organizing the district into a public corporation with jurisdiction for all the purposes that may arise under Art. 1, Ch. 41.

“If appellants are right in their contention, the judgment of the trial court must be reversed; if they are wrong? the judgment of the lower court should be affirmed.”

While several elementary propositions are stated and discussed by counsel for both the appellants and respondents, yet as a matter of fact, but one legal-question is presented to this court for determination,, and that is: Has the circuit court of Butler county the jurisdiction and authority to enlarge the territorial boundaries of the Little River Drainage District,, heretofore incorporated and established, by adding thereto the lands mentioned in this, an ancillary proceeding?

It is contended by counsel for appellants that said court possesses said authority, while iipon the other hand counsel for respondents deny its jurisdiction and authority to so do. The former contend that this proceeding to enlarge the district is an ancillary or supplemental proceeding to incorporate and establish said Little River Drainage District and consequently must be brought in the circuit court of Butler county, where the original proceeding is now pending, and being a part thereof, cannot be brought elsewhere.

The latter contend that the decree of'the circuit court of Butler county incorporating said Little River Drainage District and fixing its boundaries was a final judgment, and having fully answered the purpose and prayer of the petition filed therein, the power and authority of that court became exhausted, and possessed no further jurisdiction over the cause, or any subsequent or supplementary proceeding which might arise out of or be connected therewith. In other words, the change of venue from the New Madrid Circuit Court to the Butler Circuit Court, did not carry the entire cause to the latter court, but only the authority to incorporate- the district and fix its boundaries, and when that was done, the jurisdiction of the circuit court of Butler county ceased and that the parties should then have returned to the circuit court of New Madrid county and prosecuted all further proceedings, including this proceeding to enlarge the district, in the latter court. .

That precise question was presented to this court, in Banc, in the case of Little Tarkio Drainage District No. 1 v. Richardson, 237 Mo. 49, and after a most careful consideration of the question and all the statutes bearing on it, we hold against» the contention here of counsel for the respondents; that is, that the change of venue carried the entire cause of action to the court to which the change had been sent, and that all proceedings of every kind and character should have been had and prosecuted in the latter court.

No valid reason has been shown why we should depart from the rule there announced. We were then, and are now, of the opinion that the change of venue carried with it the entire cause, and left nothing whatever to be done by the court from which the change was taken, and that all subsequent proceedings must be had in the court to which the change of venue had been taken.

We are, therefore, of the opinion that the judgment of the circuit court dismissing appellants’ petition should he reversed, and the cause remanded. It is so ordered.

All concur, except Valliant, G. Jabsent.