Little Tarkio Drainage Dist. No. 1 v. Richardson

CourtUnited States State Supreme Court of Missouri
Citation139 S.W. 576,237 Mo. 49
PartiesLITTLE TARKIO DRAINAGE DIST. No. 1 v. RICHARDSON et al.
Decision Date03 July 1911

Const. art. 2, § 21, provides that private property shall not be taken or damaged without compensation, ascertained by a jury or commissioners in such manner as may be prescribed by law. Rev. St. 1909, § 5513, after requiring drainage commissioners to file their report with the circuit clerk, provides that thereafter the same shall be proceeded with in the same manner as provided by sections 2360-2369 for the appropriation of land for railroad and other purposes, and section 5518, after authorizing landowners to file exceptions to the commissioners' report, declares that the exceptions shall be heard and determined in a summary manner, and shall condemn land needed for right of way or materials, following as nearly as possible the procedure in cases of condemnation of rights of way for railroads. Const. art. 12, § 4, and Rev. St. 1909, § 2364, provide in express terms that when a railroad company condemns land or where its property is being condemned, either party is entitled to a trial by jury. Held that, where, in drainage proceedings, an assessment is made under the taxing power for benefits the circuit court may try exceptions thereto without a jury, but when the exceptions challenge the assessment of the cash value of land taken or damages to land a jury trial must be granted if demanded.

4. DRAINS (§ 88) — DAMAGES AND BENEFITS — ASSESSMENT.

A judgment assessing benefits in drainage proceedings should be suspended until the value of the land taken for the ditch and the damages done to the remainder in consequence thereof have been ascertained in the manner prescribed by law, and then, if one exceeds the other, judgment should be rendered for the difference.

5. EMINENT DOMAIN (§ 71)DRAINAGE DISTRICT — ESTABLISHMENT — STATUTORY PROVISIONS.

Rev. St. 1909, § 5516, relating to the establishment of drainage districts, prescribes the duties of commissioners appointed to assess damages and benefits, but does not expressly require them to consider damages to lands not taken. Section 5513, however, requires damages for land taken in drainage proceedings to be assessed as prescribed by sections 2360-2369, providing for the appropriation and valuation of lands taken for railroad and other like purposes, which article refers to statutes providing machinery by which damages to landowners in consequence of the improvement, including damages to land not taken, may be assessed. Held, that such sections should be read together, and when so read the statutes relating to drainage are not unconstitutional as limiting the landowners' damages to the value of lands taken.

6. EMINENT DOMAIN (§ 145)DRAINAGE DISTRICT — ESTABLISHMENT — DAMAGES AND BENEFITS — PAYMENT.

Rev. St. 1909, § 5516, providing that the compensation awarded to a landowner for land appropriated for a drainage ditch and the damages allowed for injury done to the remainder in consequence of the improvement shall be deducted from the benefits assessed against the land, was not violative of Const. art. 2, § 21, providing that private property shall not be taken or damaged for public use without just compensation, etc., since, under such section, the state or any public corporation, under the taxing power, may assess against property special benefits from public improvements, and such benefits may be considered in fixing the compensation for property taken or damaged for such improvement.

7. CONSTITUTIONAL LAW (§ 233) — EQUAL PROTECTION OF LAW.

Rev. St. 1909, § 5516, providing for the assessment of damages and benefits in proceedings to establish a drainage district, is not in conflict with Const. U. S. Amend. 14, § 1, as denying the landowner equal protection of the laws because he is required to pay his assessment of benefits, so far as his damages are concerned, at once, while the person assessed for benefits, but who is not entitled to damages, is entitled to pay his assessment in 20 annual installments.

Kennish, J., dissenting.

In Banc. Appeal from Circuit Court, Holt County; Wm. C. Ellison, Judge.

In the matter of proceedings to establish the Little Tarkio Drainage District No. 1. From a judgment assessing damages and benefits, John D. Richardson and others appeal. Reversed and remanded.

This is the second appeal of this case to this court, the opinion delivered when the case was formerly here is reported in 227 Mo. 252, 126 S. W. 1021, which is referred to as forming a part of the statement of this case. The case was begun in the circuit court of Holt county in 1908, by T. G. Quinby and others against the appellants and others, by which they sought to have a certain body of land situated in that county incorporated into a drainage district. The appellants owned several hundred acres of land in that vicinity, a part of which was embraced within the boundaries of said district. Appellants appealed from the award of the commissioners and filed a motion for a change of venue from Hon. Wm. C. Ellison, judge of that court, alleging prejudice on his part against them. Subsequent to the filing of that motion, but prior to any action having been taken thereon, appellants also filed objections to the granting of a decree of incorporation as prayed. A change of venue was granted and the Honorable F. H. Trimble, judge of the Seventh circuit, was called in to try the cause. A trial was had before the latter judge, which resulted in a decree incorporating the district. From that decree the appellants here were also the appellants in the former appeal. After the incorporation of the district the parties interested duly elected a board of supervisors, as provided by law. In due time this board filed in the circuit court of said county a petition, asking the Honorable Wm. C. Ellison to appoint commissioners to assess damages and benefits which would result to the property owners by reason of said improvements. After Judge Ellison had appointed the commissioners to assess the damages and benefits aforesaid, the board of supervisors undertook to enlarge the district, and instituted proceedings to that end also in the circuit court of Holt county. Thereupon the appellants filed, as I understand the record, a second application for change of venue from Judge Ellison, because of his prejudice. This application was granted, and this branch of the cause was sent to the circuit court of Andrew county, which proceeding for the enlargement of the district was heard and determined in that court, before Hon. A. D. Burnes, judge thereof. Certified copies of the proceedings had in the Andrew county circuit court were transferred and filed in the cause in the circuit court of Holt county. On July 18, 1910, Judge Ellison, in vacation, appointed C. G. Bostwick, E. L. Gaffney, and Joseph Kite commissioners to assess the damages and benefits for the original and the enlarged district. The commissioners, after having qualified as by statute provided, viewed the premises, assessed the damages and benefits, and duly reported their action to the court. We omit the formal parts of the report, as they are not questioned. The total cost of the improvements was, by the commissioners, estimated to be $53,882.

The following quotation is taken from the statement of the case made by counsel for appellants, viz.: "The report and exhibits showed that the proposed ditch would be one hundred to one hundred twenty feet wide, would run in a general north and south direction, passing through appellant's land described as the north half of section twenty, township 62, range 39. This ditch would enter these lands on the north line thereof, west of the north and south line of the section, and then pass southeasterly till it reached the north and south line and then passed south along the line into other lands within the district; thence beyond the southern line of the district and empty into Big Tarkio river, a mile or so south of the southern limits of the district. The report among other things, recited the following: `We went upon and over all the lands in said drainage district and we were accompanied by the secretary of the board of supervisors and assistant engineer of said district, and we have examined same, * * * and we have made a calculation of the amount of land necessary to be taken and condemned for a right of way for the main drainage ditch, and for the laterals to be...

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