Drainage District No. 4 v. Wabash Railroad Company
| Decision Date | 25 February 1909 |
| Parties | DRAINAGE DISTRICT NO. 4 v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court. -- Hon. John P. Butler, Judge.
Affirmed.
James L. Minnis, James C. Wallace and Crawley & Rucker for appellant.
Upon the record appellant maintains: 1. That the Act of March 5 1903 (Laws 1903, p. 234), does not apply to the Chariton River. 2. That the drainage proceedings in the county court are nullities. 3. That the persons appointed as viewers were not competent to assess damages and benefits for property condemned by them, and that in so far as section 8285 undertakes to empower them to make such assessment it violates article 3 of the State Constitution. 4. That the judgment of the circuit court is void on its face.
J. A Collet for respondent.
If appellant desired to challenge the action of the county court in organizing the drainage district, it should have done so at the time pointed out by the statute, and having failed to make timely objection, it will not now be heard to complain. Sec. 8283, R. S. 1899; Clark v. Brotherhood of Locomotive Firemen, 99 Mo.App. 687. It was entirely proper for the county court to conclude the organization of the drainage district under the provisions of the law as amended by the Act of 1905. State ex rel. v. Chariton Drainage District, 192 Mo. 517. The objections filed by appellant were filed under the provisions of the law as amended by the Act of 1905, which law contemplated that the objections filed at the stage of the proceedings at which these were filed should only go to the question of apportionments made by the viewers in relation to benefits and damages. There being no complaint as to assessment of damages, the only question raised by appellant was whether or not the assessment of benefits levied against his property was fair and just. Sec. 8292, R. S. 1899; Laws 1905, p. 185. The only issue tendered by appellant's objection filed with the county court being the question as to whether the benefits assessed against its property were fair and just, and the law making the judgment of the county court final as to the assessment of benefits, there was nothing presented to the circuit court upon appellant's appeal for determination. Sec. 8292, R. S. 1899; Laws 1905, p. 185. It is the settled rule of practice that only such questions as are tendered by the litigants in the trial court will be considered by the appellate courts on appeal. Benton Land Co. v. Zeitler, 182 Mo. 251; Dice v. Hamilton, 178 Mo. 81.
James L. Minnis, James C. Wallace and Crawley & Rucker for appellant in reply.
(1) The decisions hold that whenever the State or any municipal agency undertakes either to condemn private property or to impose a burden upon it for an alleged public use, the owner has a right to insist that every step in the proceedings shall literally comply with the requirements of the law. This rule is the same where property is merely assessed with benefits as where it is actually appropriated. St. Louis v. Koch, 169 Mo. 587; St. Louis v. Brinckwirth, 204 Mo. 280. (2) Although appellant's exceptions filed in the county court only related to the question of benefits, yet when those exceptions were overruled, its application and affidavit for appeal to the circuit court was drawn in exact conformity to the statute as it then stood (Laws 1905, p. 185, sec. 8292) "specifying therein the matters appealed from," which are the very same matters now being urged against the county court's jurisdiction. By the terms of the act (Laws 1905, p. 186, sec. 8293), the case in the circuit court was triable "as other appeal cases are tried in the circuit court." In other words, so far as this appellant's property was involved, the whole matter in the circuit court stood for trial de novo. Bennett v. Hall, 184 Mo. 407; Wilhite v. Wolf, 179 Mo. 472; Seafield v. Bohne, 169 Mo. 537; Kings Lake Drainage Dist. v. Jamison, 176 Mo. 557. Before the circuit court could legally try the question of benefits to appellant's property, it was bound to determine whether or not the petition and notice were sufficient to confer jurisdiction of the subject-matter; and if not sufficient there was nothing for the circuit court to act upon. Authorities last cited. But appellant was under no obligation to raise this jurisdictional question in the county court or in the circuit court; because, lying at the very foundation of the entire proceedings, it may be raised at any time and in any court. Railroad v. Campbell, 62 Mo. 585; City of Hopkins v. Railroad, 79 Mo. 100; Kings Lake Drainage District v. Jamison, supra.
This is a proceeding under article IV, chapter 122, Revised Statutes 1899, and the amendments thereto, for the establishment of a drainage district and the construction of drainage ditches. The proceeding was begun by filing a petition in the county court of Chariton county May 2, 1904. On the same date the petitioners gave bond as required by the statutes to cover the cost of the proceedings. On the filing of the petition and bond the county court, in conformity to section 8280, Revised Statutes 1899; Mo. Ann. Stat. vol. 4, p. 3917, made an order which was duly entered on the record appointing viewers (as they are called in the statute) and a civil engineer, with directions to them to view and survey the route and make report to the court at its next session. It was also at the same time ordered that notice be published as required by section 8281, Revised Statutes 1899, which was done. Although no point is made by appellant on the sufficiency of the notice we deem it proper to note here, lest what we say of the notice might be misleading, that the order of publication was made before the filing of the report of the viewers and was in effect notice to all parties in interest that the petition was pending in the county court and that the viewers would report on the first day of July. That was in conformity to what the statute then required; afterwards in 1905 the statute was amended requiring the notice to be published after the viewers had made their report and the notice then required was that the petition was pending, that viewers had been appointed and had made their report, descriptive of the route, and the day appointed by the court for the hearing.
The viewers and the civil engineer qualified as the statute prescribed, and entered upon their work, which they completed and filed their report July 1, 1904. The substance of the report was that having done as they were directed to do they found the proposed improvement "necessary and practicable and will be conducive to the public health, convenience or welfare," and the route given was as proposed in the petition, referring also to a map on file in court with the petition. On filing the report the court postponed the further hearing of the matter until July 23rd, and on that day again postponed it to the August term. At that term the court approved the report, designated the district as Drainage District No. 4 of Chariton County, ordered the construction of the work as prayed in the petition, and appointed the same men as viewers and engineers as had been appointed in the preliminary order, as provided in section 8284. In that order the court gave a more particular description of the route, following in detail the map on file which had been made by the engineer. The viewers made their final report to the county court April 13, 1905, in which they assessed the Wabash Railroad Company $ 1,375 for benefits. On May 6, 1905, that company, the appellant herein, filed its exceptions to the report, on the grounds, first, that the assignment of benefits against it were excessive; second, the size of the proposed ditch was not sufficient; third, because of the frequent interruptions of its traffic it had theretofore suffered by reason of overflows it had at great expense built a large embankment and trestle which fully protected it from overflow and therefore it was not at all benefited by the proposed ditch. The court overruled the exceptions, but on the same day of its own motion, made an order reducing the assessment of appellant to $ 825. Appellant then filed an affidavit for appeal to the circuit court and it was allowed. The county court entered final judgment approving the final report of the viewers as awarded and carrying the scheme into effect.
After the cause was lodged in the circuit court it came on for trial September, 1905, whereupon a jury was empannelled to try the issues. The judgment of the court contains a recital that the plaintiff introduced in evidence the record of the county court in relation to the matter etc.
From that judgment the defendant, the Wabash Company, has appealed to this court. The record shows that there was a bill of exceptions filed, but the bill does not appear in this record, and was intentionally omitted by appellant for the reason as stated in its brief "no point is made here as to any matter of exception, since the abstract presents nothing but...
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