Carder v. Fabius River Drainage Dist. No. 3

• Decision Date: 19 December 1914
• Docket Number: No. 17821.,17821.
• Citation: 172 S.W. 13
• Parties: CARDER et al. v. FABIUS RIVER DRAINAGE DIST. NO. 3 et al.
• Court: Missouri Supreme Court

172 S.W. 13

CARDER et al. v. FABIUS RIVER DRAINAGE DIST. NO. 3 et al.

No. 17821.

Supreme Court of Missouri.

December 19, 1914.

1. APPEAL AND ERROR (§ 518)—SCOPE OF RECORD — PLEADING — MOTION TO STRIKE — EFFECT.

Where part of a pleading is stricken, it goes out of the record, and unless preserved by bill of exceptions, the matter cannot be reviewed.

2. DRAINS (§ 40)—DRAINAGE DISTRICTS—INJUNCTION.

Rev. St. 1909, § 5496, provides for the incorporation of a drainage district on petition of the owners of a majority of the acreage of a contiguous body of swamp land. Section 5497 provides for notice to all owners who did not sign the petition, while section 5499 provides for the incorporation by order of court and hearing of objections. Section 5514 requires the court to determine whether the benefits will exceed the expenditures, and if the expenditures will exceed the benefits, to dissolve the corporation. Held, that in view of the power of the court, fraudulent statements by those who carried the petition around for signatures as to where the ditch would be located and as to its cost furnished no ground for enjoining the prosecution of the work, though such organizers became members of the board of supervisors, particularly where they did not constitute a majority of the board.

3. DRAINS (§ 16)—DRAINAGE CORPORATION— PUBLIC POLICY.

It would be contrary to public policy to permit the destruction of a drainage district corporation merely because those who were active in its creation made improvident statements as to cost and location.

4. DRAINS (§ 40)—DRAINAGE DISTRICT—VALIDITY.

In a suit to enjoin the construction of a ditch by a drainage corporation, evidence held not to show that the supervisors through a conspiracy procured its location at a point where it only benefited their land.

5. CONSPIRACY (§ 1)—ACTION—RIGHT TO ACTION.

Where a conspiracy is never consummated, it affords no right of action.

In Banc. Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Suit by Calvin Carder and others against the Fabius River Drainage District No. 3, a corporation, and D. A. Frazee and others, as the Board of Supervisors. From a judgment for defendants, plaintiffs appeal. Affirmed.

Injunction suit by Calvin Carder and 12 other taxpayers and owners of real estate in defendant drainage district, against the said district (called hereinafter for brevity the district), and D. A. Frazee and three others, as supervisors thereof. Object of the action is to enjoin defendants from constructing and maintaining its drainage ditch as proposed in the plan of drainage filed and adopted. Plaintiffs on a hearing upon the merits were cast, and have appealed, so far as we note, duly.

For a better understanding of the case and to better illustrate an alleged error based on the action of the court nisi in striking out a part of plaintiffs' petition, we copy same below, caption, descriptions of land, and alleged proper and improper ditch routes, verification, and formal parts omitted:

"Plaintiffs state that Fabius River Drainage District No. 3 is a drainage corporation organized and existing under and by virtue of the laws of the state of Missouri.

"That defendants D. A. Frazee, J. S. Barr, Geo. H. Walker, and S. R. Short are members of the board of supervisors of defendant district.

"That plaintiffs are the owners of real estate in the counties of Knox and Clark, in the state of Missouri, the same being within the limits and boundary lines of said drainage district and a part thereof, and said lands being as follows. [Here follow descriptions of the lands of plaintiffs.]

"That the board of supervisors of this district has filed, according to law, the plan for drainage, including within its scope the proposed location of the main ditch and topographical survey, the location of said ditch being as follows. [Here follows proposed route of ditch as the filed "plan for drainage" locates it.]

"[a] That the topographical survey shows, by the elevations and depressions of the land, that the location of the proposed ditch embraced in said plan for drainage is impractical and will result in no benefit, but will result in detriment to said drainage district, and will work irreparable damage to plaintiffs; that said ditch, if located as proposed in said plan for drainage, will not carry off the surplus overflow water, which will collect and stand on plaintiffs' lands; that ditch, if so located, will be on higher ground than the lands of plaintiffs and other lands in said district, will cross the old creek or river many times, which will cause said creek or river to close up and cease to flow, and by destroying the outlet, the overflow and surplus water will collect on the lands of plaintiffs, and leaving to plaintiffs no outlet for said water in lieu thereof.

"That when the old creek or river is closed up, as it will be if said ditch is located as proposed in said plan for drainage, there will be no outlet for the waters of Long branch, Betram branch, Vernon branch, and other streams which come into the creek or river from the south, thereby causing the waters from said streams to overflow and remain on the lands of the landowners in said district and those of plaintiffs.

"That said ditch, if so located, will be much more expensive to construct, and will cause the damage to plaintiffs' and other lands in said district to be much greater than if said ditch was properly located as aforesaid.

"That there will be no benefits accrue to plaintiffs or other landowners in said district; it will render worthless much of the lands of plaintiffs, and will be a detriment and damage to the lands of plaintiffs and not a benefit.

"That said topographical survey shows that the proper location for said ditch would be as follows. [Here follow plaintiffs' personal views of the proper route for the proposed ditch.]

"That if said ditch is located as last above described, it will be the more practical and beneficial location, and be of the most benefit to said district and to plaintiffs and will benefit the landowners in said district and plaintiffs far in excess of the damages and cost of construction; that the benefits will be greater, the damages less, and the cost of construction much less, so that the ditch will be a benefit to the district, and the benefits will exceed the damages.

"Plaintiffs state that if said ditch is located as proposed in said plan for drainage, irreparable damage will be done plaintiffs, as above set forth, and the expenses, damages, and cost of constructing said plan for drainage will exceed the benefits derived therefrom and will cause said district to become insolvent and unable to meet its liabilities. [b]

"Plaintiffs further state that when the petition for the organization of said district was circulated, it was fraudulently represented to the plaintiffs that the ditch would be located on low grounds, on a route similar to the one hereinbefore described, as the most practical, beneficial, and proper route, where it would be the most benefit and the least damage to plaintiffs and to the district, where the cost of construction of the ditch, it was represented, would not exceed seven cents per yard; that plaintiffs signed said petition relying upon said false and fraudulent statements made to them, and believing the same to be true; that after the said district was organized and defendants D. A. Frazee, J. S. Barr, George Walker, and S. R. Short were elected on the board of supervisors, the said defendants fraudulently conspired with each other to locate the ditch where they thought it would be most beneficial to themselves, without regard to the interests of the plaintiffs and the rest of the landowners in said district, and by so conspiring together did locate the ditch where the same, in their opinion, would be most beneficial to themselves, regardless of the interests of the plaintiffs and the other landowners in the district, and that said ditch, as located by them, by fraudulently conspiring together as aforesaid, is against the interests of plaintiffs and the other landowners of said district, will cause the said ditch to be a damage and not a benefit to plaintiffs and the landowners of said district, will cause the damage to exceed the benefits, thereby rendering the district insolvent and unable to pay its liabilities, and will do to the lands of the plaintiffs great and irreparable damage, for which they would have no adequate remedy at law.

"Wherefore plaintiffs pray the court to enjoin the defendants from constructing and maintaining the said ditch as proposed in said plan for drainage."

Defendants moved to strike out all that part of plaintiffs' petition which we may aptly designate as being included between [a] and [b], marked on the above petition, for the reasons: (a) That it failed to state facts which constitute a cause of action against defendants; (b) that there is no equity stated in the part asked to be stricken from the petition; and (c) that plaintiffs have an adequate remedy at law for all of the matters set out in the said part of the petition.

The court sustained the motion to strike out the portion of plaintiffs' petition above indicated, but no exception was properly saved by plaintiffs to this action. Defendants' answer was a general denial. The case was tried by the court upon the issues of fraud remaining in plaintiffs' petition, and judgment rendered for defendants dismissing plaintiffs' bill.

The facts shown upon the trial of the case, as we have with much difficulty gathered them from a meager and most unsatisfactory record, are substantially that defendant district is organized under the provisions of article 1 of chapter 41 of the Revised Statutes of 1909, as amended by the act of 1911; that plaintiff Calvin Carder, and defendants D. A. Frazee, J. S. Barr, George H. Walker, and S. R. Short compose the board of supervisors of said district, and that plaintiff...