Trickett v. Kaw Valley Drainage Dist.

Citation25 F.2d 851
Decision Date29 March 1928
Docket NumberNo. 7757.,7757.
PartiesTRICKETT et al. v. KAW VALLEY DRAINAGE DIST. OF WYANDOTTE COUNTY, KAN., et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

C. W. Trickett, of Kansas City, Kan. (Fred Robertson and R. J. Higgins, both of Kansas City, Kan., and James A. Reed, of Kansas City, Mo., on the brief), for appellants.

Thomas A. Pollock, of Kansas City, Kan., for appellee Kaw Valley Drainage Dist.

L. S. Harvey, of Kansas City, Kan. (C. C. Glandon and John O'Brien, both of Kansas City, Kan., on the brief), for appellee Kansas City, Kan.

Before WALTER H. SANBORN and LEWIS, Circuit Judges, and PHILLIPS, District Judge.

LEWIS, Circuit Judge.

This is a proceeding in contempt. It was brought October 3, 1924, by the Kaw Valley Drainage District and the City of Kansas City, Kansas, against appellants, who are attorneys at law residing at Kansas City, Kansas, and David Buckland, Samuel Clark and Peter Kramer who constituted the board of county commissioners of Wyandotte County, Kansas. The petition was filed in Equity Cause No. 339-N, pending in the court below, entitled "Kansas City Railways Company, a Missouri corporation, v. The Board of County Commissioners of Wyandotte County, Kansas, and the Kaw Valley Drainage District of Wyandotte County, Kansas;" and it alleged that the United States District Court for the District of Kansas, in which said Cause No. 339-N was brought and was still pending, had on February 10, 1923, entered its decree therein providing for the reconstruction of the public bridge of Wyandotte County across the Kansas River at Twelfth Street in the City of Kansas City, Kansas, and requiring the board of county commissioners of Wyandotte County to let a contract for the reconstruction of said bridge and to issue negotiable bonds of said county to pay therefor; that the district court in said decree reserved to itself full jurisdiction, power and authority to make such other and further orders, judgments and decrees as might be necessary to the full completion and carrying out of the work of repairing, altering and reconstructing said Twelfth Street bridge; that thereafter the said five named persons in contemptuous disregard of the authority of the United States District Court and its decree, although knowing said court had prior and exclusive jurisdiction to litigate and determine all matters relating to the construction of said bridge and the issuing of bonds therefor, and had so decreed on February 10, 1923; nevertheless, with intent to hinder, delay and prevent the reconstruction of said bridge as provided in said decree, they the said Trickett and Baird instituted two suits, one in the State district court of Wyandotte County on September 27, 1924, entitled "Cause No. 21, 146-A, State of Kansas, ex rel. Justus N. Baird, County Attorney of Wyandotte County, Kansas, plaintiff, v. The Board of County Commissioners of Wyandotte County, Kansas, and Samuel Clark, David Buckland, and Peter Kramer as county commissioners of Wyandotte County, Kansas, N. A. Turner as auditor of the State of Kansas, George R. Griffith as county treasurer of Wyandotte County, and William Beggs as county clerk of Wyandotte County, defendants;" and the other in Kansas Supreme Court on September 30, 1924, Cause No. 26,045, entitled the same as the one in the State district court.

The petition prayed that the persons named be enjoined from prosecuting said suits and from attempting to litigate in any other court than the United States District Court any question as to the right, power, duty or authority of the board of county commissioners to reconstruct said Twelfth Street bridge or issue bonds of the county to pay therefor, and that they be ordered to show cause why they should not be committed for contempt for failure to comply with the decree of the United States court dated February 10, 1923, and for obstructing, hindering and delaying the construction of said bridge as decreed. The appellants and the three county commissioners answered and the court, without objections from any one, appointed a master to take the proof on the charges of contempt, directed him to report the testimony into court and his conclusions therefrom. The hearing before the master was at great length. He found that each of the five persons named was guilty of civil contempt. The three individuals composing the board of county commissioners filed no objections to the report. Trickett and Baird took many exceptions thereto. They were all overruled. The court approved the report of the master, adopted his conclusions and found that appellants (as also the three members of the board of county commissioners) were guilty of civil contempt, as charged. A fine of $1,000 was assessed against each commissioner, a fine of $2,000 against appellant Baird and a fine of $5,000 against appellant Trickett. The compensation of the master was fixed at $7,500. It was adjudged that his expenses in taking the proof and making report amounted to $1,926.30, that the drainage district and the city of Kansas City, the moving parties for the rule to show cause, should pay the costs, expenses and allowance to the master, but that they should be reimbursed by the contemnors in the proportions as between them represented by the fines imposed on them, and each should be credited on his fine for the amount thus paid.

We turn to a consideration of the causes which brought about the institution of suit No. 339-N in the court below by the Kansas City Railways Company, and other suits in the State courts concerning the bridge. Twelfth Street is intersected by the Kansas River. The bridge over it at that point was destroyed by flood in 1903, and thereafter reconstructed in that and the following year by Wyandotte County under a special legislative act. After it was constructed the street railway cars of the Kansas City Railways Company passed over the bridge, as well as public traffic of all kinds. The cars of its predecessor in title had also passed over it and the bridge that was destroyed in 1903. The Kansas River is a navigable stream from its mouth up to the bridge and for some distance above it. In June, 1910, the War Department established harbor lines along its banks. In the following month the Kaw Valley Drainage District, organized under Session Laws of Kansas 1905, chapter 215, and thereby invested with broad and extensive powers to protect from floods in water courses within the district, also established harbor lines along the stream, through the City of Kansas City, which coincide with those established by the War Department. At Twelfth Street the distance between the harbor lines so established is 876 feet. The bridge as reconstructed in 1903-4 did not clear the harbor line on the north bank. In August, 1919, the board of directors of the Kaw Valley Drainage District, acting within its powers and after full hearing, found that the bridge as it then stood was an obstruction to the flow of the stream and a flood menace and by resolution ordered the northerly approach removed from within the harbor lines, including therein the steel structure, pedestals and piling supporting the same, also the north channel pier, and declared such removal necessary to prevent overflow; and it specified the character, elevation, grade and length of the new spans and approaches. It also ordered that the removal and reconstruction should be done by the board of county commissioners of the county. Whether that was a duty incumbent on the county under State law was one of the controversies in some of the litigation.

The board of county commissioners failed to comply with the resolution and order of the drainage board and thereafter the latter brought suit, referred to as Cause No. 12,283, in the district court of Wyandotte County, to compel compliance with its order. While that suit was pending the drainage board on January 9, 1920, found that the entire bridge constituted a flood menace and by resolution it ordered its removal by the county and the reconstruction of a new bridge at Twelfth Street by the county. On that day the Kansas City Railways Company instituted in the court below its said suit in equity No. 339-N, in which it sought an injunction against the removal and reconstruction of the bridge. In its original complaint, and in its amended complaint filed September 29, 1921, receivers of the railways company having been appointed in the meantime, it alleged that it was a Missouri corporation and a resident and citizen of that State, also, that its receivers were citizens and residents of Missouri, hence there was diverse citizenship between it and its receivers and the defendants; that long prior to January, 1916, the Metropolitan Street Railway Company was the owner of and had possessed various legal and equitable rights and interests in and to the Twelfth Street bridge, that at that time the railways company purchased and there was transferred to it all property and interests of the Metropolitan Company and it thereupon became the legal and equitable owner of all of the property of that company, including the rights and title of the former in and to said bridge and had ever since been such owner, that the bridge was constructed in 1903-4 under a contract between the Metropolitan Company and the board of county commissioners entered into in July, 1903, to be used in common by the public as a highway bridge and as a street railway bridge, and because of payments made by said Metropolitan Company under said contract the Metropolitan Company and the county became common owners of the structure, and by virtue of the sale to the railways company the latter in 1916 became the owner in common with the county and was entitled to the use of the bridge in perpetuity for street railway purposes, that also by virtue of certain ordinances of Kansas City it obtained a right to use the bridge, that it had continued to use the same until its receivers were...

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2 cases
  • Walker v. City of Birmingham
    • United States
    • United States Supreme Court
    • June 12, 1967
    ...360 U.S. 932, 79 S.Ct. 1452, 3 L.Ed.2d 1546. 5. Brougham v. Oceanic Steam Navigation Co., 2 Cir., 205 F. 857; Trickett v. Kaw Valley Drainage Dist., 10 Cir., 25 F.2d 851, cert. denied, 278 U.S. 624, 49 S.Ct. 26, 73 L.Ed. 544; O'Hearne v. United States, 62 App.D.C. 285, 66 F.2d 933, cert. de......
  • THE UNITED STATES v. Schine
    • United States
    • U.S. District Court — Western District of New York
    • August 12, 1954
    ...against this motion to dismiss the criminal contempt. And see Locke v. United States, 5 Cir., 75 F.2d 157; Trickett v. Kaw Valley Drainage Dist., 8 Cir., 25 F.2d 851; Kreplik v. Couch Patents Co., 1 Cir., 190 F. 565; Brougham v. Oceanic Steam Navigation Co., 2 Cir., 205 F. 857; United State......

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