In re Little River Drainage Dist.

• Decision Date: 03 July 1911
• Citation: 139 S.W. 330,236 Mo. 94
• Parties: In re LITTLE RIVER DRAINAGE DIST.
• Court: Missouri Supreme Court

139 S.W. 330

236 Mo. 94

In re LITTLE RIVER DRAINAGE DIST.

Supreme Court of Missouri.

July 3, 1911.

1. DRAINS (§ 14) — ESTABLISHMENT OF DRAINAGE DISTRICT — PETITION — SUFFICIENCY.

Since Rev. St. 1909, §§ 5496-5763, relating to the establishment of drainage districts provides that, if the district is incorporated and the supervisors have been selected and the board organized, engineers shall then survey the district and submit a plan for reclamation, the petition cannot anticipate the action of the engineers, and it is not necessary that it should state the manner of draining the district and describe the commencement, line, and termination of the proposed drains.

2. DRAINS (§ 14) — ESTABLISHMENT OF DRAINAGE DISTRICT — PETITION.

A petition asking for incorporation of a drainage district for the purpose of reclaiming

land by ditches, levees, dykes, or otherwise, and for this purpose to dig the necessary ditches and trenches and throw up the necessary dykes and levees, is not insufficient for failure to state what ditches, etc., are necessary, or where and how they are to be constructed or to state more specifically the purpose of the formation of the district, as the Drainage Law (Rev. St. 1909, §§ 5496-5763) does not require such details to be set out in the articles of association.

3. DRAINS (§ 14) — ESTABLISHMENT OF DRAINAGE DISTRICT — OBJECTIONS.

Under Rev. St. 1909, § 5499, providing that nonpetitioning owners of land in a proposed drainage district, when brought into court, may file their objections, stating why the drainage district should not be organized or why their land or any part thereof will not be benefited by the proposed drain, a nonpetitioning owner, appearing and objecting against the sufficiency of the petition and articles of association and objecting that its lands would not be benefited and should not be included, but not objecting as to why the district should not be incorporated, was not in a position to complain of the rulings of the court in excluding testimony on that issue.

4. CONSTITUTIONAL LAW (§ 309) — ESTABLISHMENT — NOTICE.

It is not necessary to the constitutionality of a statute providing for incorporation of drainage districts, that any notice whatever should be given to the landowner in laying out and determining the district.

5. DRAINS (§ 2) — ESTABLISHMENT OF DRAINAGE DISTRICT — NOTICE.

Since a statute which does not require notice to landowners of the proposed formation of a drainage district is not unconstitutional for that reason, a statute which does require such notice cannot be assailed because it does not require that the landowner be fully informed of the details of the plans of drainage before the district is formed.

6. EVIDENCE (§ 34) — JUDICIAL NOTICE — ESTABLISHMENT OF DRAINAGE DISTRICTS.

It is not necessary that the drainage law should recite the public benefits to be effected by a drain, as the court will take judicial notice of the grant to the state by the act of Congress of the lands sought to be drained that the state might "construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, and that the next General Assembly passed an act appointing a board of commissioners to devise plans for the reclaiming of the land.

7. DRAINS (§ 1) — ESTABLISHMENT OF DRAINAGE DISTRICTS.

The state may, in the exercise of its police power, drain lands in order to render them fit for use, productive, and habitable.

8. APPEAL AND ERROR (§ 1011) — FINDINGS BY THE COURT — REVIEW.

The Supreme Court will not review findings of fact by the court below when the evidence is conflicting.

9. DRAINS (§ 15) — ESTABLISHMENT OF DRAINAGE DISTRICTS — LAND INCLUDED — BENEFITS.

Under Rev. St. 1909, § 5516, the extent to which a tract of land will be benefited does not affect the propriety of including it in a drainage district, but rather the amount of benefits to be assessed against it as compared with the other lands, and lands are not to be excluded because damaged by water only in high and unusual freshets.

10. DRAINS (§ 15) — ESTABLISHMENT OF DRAINAGE DISTRICT — LANDS TO BE INCLUDED.

That land is part of an existing drainage district and has paid benefits therein is not a valid objection to including it in a proposed district.

11. DRAINS (§ 14) — ESTABLISHMENT OF DRAINAGE DISTRICTS — OBJECTIONS — AMENDMENTS.

Where nonpetitioning landowners had filed objections to the petition for formation of a drainage district nearly two years before trial, and after the issues had been made up a change of venue was awarded on their application, leave to amend, not asked for until petitioners had objected to certain testimony as not within the issues, was properly refused, the proposed amendment being such as to materially change the issues.

In Banc. Appeal from Circuit Court, Butler county; J. C. Sheppard, Judge.

In the matter of the petition for the organization and incorporation of the Little River Drainage District, in which objections were filed by the St. Louis, Memphis & Southeastern Railroad, now the St. Louis & San Francisco Railroad Company, and others. From a judgment for petitioners, the objectors appeal. Affirmed.

W. F. Evans and Moses Whybark, for appellants. Oliver & Oliver, for respondents.

KENNISH, J.

This is an appeal from a judgment of the circuit court of Butler county, ordering, adjudging, and decreeing the incorporation of the Little River Drainage District, a corporation organized under the provisions of article 1, c. 41, of the Revised Statutes of 1909, for the reclamation of about 500,000 acres of swamp and overflowed lands in the southeastern part of this state. The lands sought to be reclaimed are in the counties of Bollinger, Cape Girardeau, Stoddard, Scott, New Madrid, Dunklin, and Pemiscot. They form a contiguous body of land from 1 to 11 miles in width, extending in a southerly direction for a distance of about 90 miles, from Cape Girardeau on the north to the boundary line between Missouri and Arkansas. Streams and water courses heading in the higher adjacent territory carry their waters to these lowlands where, because of insufficient channels, the waters overflow and render much of the land uncultivatable and uninhabitable. This land has a uniform fall to the south or about one foot to the mile, and therefore is susceptible of drainage. A larger area of the lands in the proposed district being situated in New Madrid than in any other county, the petition, in accordance with the statute, was filed in the office of the clerk of the circuit court of that county. All of the nonpetitioning landowners, except those who had waived service and entered their appearance, were duly summoned to appear before the circuit court of New Madrid county at the March term, 1906.

Among other objectors, appellants, the St. Louis, Memphis & Southeastern Railroad Company, St. Louis & Gulf Railway Company, and John V. Filley, trustee under several mortgages upon the said railroads, appeared at the March term of said court, and jointly filed objections to the petition and articles of association. On the application of one of the individual objectors a change of venue was awarded to the circuit court of Butler county, in which court, upon the _____ day of November, 1907, upon a hearing of the issues made by the petition and the objections thereto, the court sustained the objections in part on the ground that some of the lands of the objectors would not be benefited by the proposed drainage and excluded such lands from the proposed district. The other objections were overruled, and the court ordered and adjudged the district duly incorporated, from which order and judgment the appellants herein appealed to this court.

The petition and articles of association are of too great length to be set out in this opinion. A careful examination has satisfied us that in form they are in accord with the statute, and, under the law as declared by this court in the case of Mound City Land & Stock Company v. Miller, 170 Mo. 240, 70 S. W. 721, 60 L. R. A. 190, 94 Am. St. Rep. 727, they must be held sufficient unless some of the objections, which counsel for appellants contend are now made for the first time against such a proceeding, are well founded. The objections, as made in the trial court and urged on this appeal against incorporating the district, will be taken up and considered in the order and as stated in appellants' brief.

(1) It is first contended that: "The petition for articles of association of the Little River Drainage District fails to state the mode and manner of draining the district, and fails to contain a plain description of the commencement, the line and termination of the drains proposed, and the proceedings are void for that reason."

This objection is more in the nature of an attack on the law than upon the sufficiency of the petition. The law (section 5496, R. S. 1909) expressly provides what facts shall be stated in the articles of association, all of which are set forth with particularity in the petition and articles in this case. Therefore, if the law is valid, the petition and articles, being in full compliance therewith, must be upheld against appellants' attack.

The law under which petitioners are proceeding provides that after the district is incorporated and the supervisors have been selected and the board organized, an engineer or board of engineers shall be appointed, and such engineer or board of engineers shall then, for the first time, make a survey of the district, and submit to the board of supervisors a plan for the reclamation and drainage of the lands; not the lands described in the articles of association, as filed with the circuit clerk and to which the objections are filed, but the lands remaining and included in the district as incorporated by the order and judgment of the court. It is plain from these provisions that the petitioners were not required to anticipate the orderly course thus...