Barnes v. Missouri Valley Construction Co.

Decision Date02 April 1914
PartiesELISHA B. BARNES et al., Appellants, v. MISSOURI VALLEY CONSTRUCTION COMPANY et al
CourtMissouri Supreme Court

Appeal from Buchanan Circuit Court. -- Hon. Thomas J. Seehorn Judge.

Affirmed.

James H. Hull, James W. Boyd and Perry A. Brubaker for appellants.

The decree and judgment rendered by the circuit court in this case dissolving the temporary writ of injunction and finding in favor of the respondents is erroneous, not sustained by the law or the facts in the case, and should be reversed. (1) The order made by the county court on December 11, 1911, was and is without authority of law, and said court had no jurisdictional right to make said order. (a) On November 2 1908, Silas Berry and others filed what they claim to be a petition asking for the formation of a drainage district and the digging of a ditch. Thereafter some proceedings were had in the county court and some notices, not legal, were given and the county court, under said petition and notices, did on August 2, 1909, make and enter what purported to be a final order and judgment establishing a district and ordering a ditch to be dug. (b) Thereafter, and on the 30th day of September, 1909, William T. Hutson and others brought a suit to obtain a writ of injunction. A writ of temporary injunction was issued on October 5, 1909. This case was fully heard in the circuit court of Jackson county, and every feature of the drainage proceeding was considered, and said circuit court, after a full hearing, held and decided that the county court on August 2, 1909, had no jurisdiction; and the order made then was held to be null and void. It was held null and void on the ground that the county court had no jurisdiction to make it. All anterior matters and proceedings of the county court were adjudicated by that decision. Donnell v. Wright, 147 Mo. 646, 199 Mo. 308; Emmert v. Aldridge, 231 Mo. 130; Cantwell v Johnson, 236 Mo. 603. (c) Up to that time from August 2 1909, no order was made in the county court of Platte county. The said county court could not proceed on February 6, 1911, without a new petition. It had no right to reverse or ignore the judgment of the circuit court of Jackson county. (d) Even if the county court had the right to set aside the final decree of the circuit court, still it had no right to make the order of December 11, 1911, for the reason that the pretended notice issued on November 6, 1911, was not in accordance with the statute and was not effective, and was null and void. Said notice as respondents claim it to have been made and published, only purports on its face to give notice to such persons as were returned by the viewers and engineer in their report. Sec. 5587, R. S. 1909. (e) The county court had no right to make the order of November 6, 1911, setting the time there for the hearing of said matter, because if any person could make an order at that time that person was the clerk of the county court, and he never made any order fixing the time of hearing or of publication. Sec. 5587, R. S. 1909. The pretended publication gave notice to a time during the same term of court when it was issued. The statute says that the hearing of the same shall be set for some day of the next regular term of the county court. Sec. 5587, R. S. 1909. (f) The said pretended notice, given without authority of law, and without any order made on the part of the county clerk, does not describe the lands contained in said alleged district. It does not contain a tabulated description of said lands. The statute says there must be a definite description of the lands. Sec. 5587, R. S. 1909. (g) The part of the said notice directed to D. W. Hutson, who was dead four years before Silas Berry and others filed their petition, and owned an undivided interest in many tracts of land at the time of his death was insufficient to give notice to him if said tracts had been properly described. (2) The county court exhausted all of its power when it undertook to make a final order on August 2, 1909. The viewers had done all they could do under their appointment. The engineer had exhausted his authority. All they had done up to August 2, 1909, was void under the decision by the circuit court. (3) While it is not necessary to show that the judgment and decree of the circuit court of Jackson county was correct, still we call the court's attention to the fact that the original petition of Silas Berry, filed in the county court in November, 1908, does not state any facts authorizing the county court to take the lands of the appellants herein for drainage purposes, and to turn the waters of Sugar creek on and across them by a ditch or otherwise. That petition proceeds upon the basis that, as alleged therein, it was necessary to cut down the bank of Sugar creek and turn the waters thereof on plaintiffs in order to protect the fields, lots, yards, gardens, pastures, crops and lands of the petitioners. Before the county court can acquire jurisdiction there must be a petition filed therein alleging that the contemplated drainage would be conducive to the public health, convenience or welfare, or where it would be of public utility or benefit, and the facts necessary to show that said ditch would be necessary for public health, convenience or welfare must be stated in the petition. No such facts are stated; and the circuit court of Jackson county was correct when it held that the county court had no jurisdiction in the matter of Silas Berry et al. That petition does not state where the contemplated ditch should start or where it should end. It does not say whether it was desired to issue bonds or not. Secs. 5579-80, R. S. 1909. The rule is universal that the petition must set forth every jurisdictional fact. The petition filed by Silas Berry and others on November 2, 1908, fails of this in every particular. St. Louis v. Gleason, 89 Mo. 67; Hopkins v. Railroad, 79 Mo. 98; Jefferson County v. Cowan, 54 Mo. 234; School District v. Oeillien, 209 Mo. 464; Railroad v. Storey, 96 Mo. 620; Cory v. Railroad, 100 Mo. 288; Railroad v. Townsite Co., 103 Mo. 569; Railroad v. Swan, 120 Mo. 30; Whitely v. Platte County, 73 Mo. 30; Zimmerman v. Snowden, 88 Mo. 218; Railroad v. Railroad, 94 Mo. 542. This petition contains no description of the ditch. It contains no description of the lands to be embraced in the proposed district. It gives no names of landowners other than the petitioners. It does not give the width of the strip of land to be condemned. It does not give a true description of the beginning, route, or terminus of the ditch. It does not show that the petitioners possessed the statutory qualifications. Township v. Probate Judge, 53 Mich. 130. The law is and has ever been in condemnation proceedings that the petition must set forth the specific purpose for which the exercise of eminent domain is sought, and that it is necessary to take the property condemned for the specific purposes stated in the petition. 14 Cyc. 1031, note 43; Ib., 1030, note 40; Patterson v. Behr, 161 Mo. 513; Mattias v. Drainage Com., 49 Mich. 465; Frost v. Leatherman, 55 Mich. 33; Whiteford Twp. v. County, 53 Mich. 133. Whereever property is sought to be taken for public use the petition should either give the names of the land owners or a description of the lands. Seifener v. St. Louis, 141 Mo. 586; Miller v. Graham, 17 Ohio St. 1; Railroad v. Railroad, 94 Mo. 542. (4) The pretended notices given by the county court before August 2, 1909, did not in any material respect comply with the statutory requirements, did not contain a tabulated description of said lands, did not give the name of the person owning certain particular lands as described, did not purport to notify any person or persons except those mentioned in the viewers' report. It did not give notice to those who were or might have been ascertained to own said lands or a part thereof or any interest therein, as the statutes provide. In said pretended notice, given in April, 1909, the lands are not described. Said pretended notice does not mention the names of any persons who are supposed to own any part, parcel or tract of said lands. That notice was jurisdictional. State ex rel. v. Taylor, 224 Mo. 463; State ex rel. v. Wilson, 216 Mo. 215. Hence, we again say that the county court had exhausted its right if it had any under said original petition when, on August 2, 1909, it made the final order. The suggestions are not necessary, but are made in order to show that judgment of the circuit court on July 20, 1910, was correct. (5) On February 6, 1911, the county court undertook to overrule the circuit court. No other order was ever made continuing the proceedings in the county court, or keeping the proceedings alive in the county court, or undertaking so to do before November 6, 1911. Hence, even if the county court had the right to overrule the circuit court, still its proceedings thereafter are null and void. (6) While the appellants contend that the county court had no right or authority of law or jurisdiction to make the order of December 11, 1911, still on other grounds the appellants are entitled to have the temporary writ of injunction perpetrated, and not dissolved. (a) Before a ditch 100 feet wide and 15 feet deep, necessitating, as the county court held and has been repeatedly stated in the proceedings, the space of ground 100 feet wide, such right-of-way must be legally condemned and the damages for the condemnation actually paid to the owners. No right-of-way across the lands of the plaintiffs has ever been legally or properly condemned, or appropriated for said purpose. (b) The evidence of D. W. Hutson's death was conclusive, and not disputed. The notice given by the county court upon which the order of December 11, 1911, purports to...

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    • Missouri Court of Appeals
    • September 18, 1922
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