Lemon v. Garden of Eden Drainage Dist.

• Citation: 275 S.W. 44
• Decision Date: 30 July 1925
• Docket Number: No. 24670.,24670.
• Parties: LEMON et at. v. GARDEN OF EDEN DRAINAGE DlST. OF CHARITON COUTY et al.
• Court: United States State Supreme Court of Missouri

275 S.W. 44

LEMON et at. v. GARDEN OF EDEN DRAINAGE DlST. OF CHARITON COUTY et al.

No. 24670.

Supreme Court of Missouri, Division No. 1.

July 30, 1925.

Appeal from Circuit Court, Chariton Comity; Fred Lamb, Judge.

Suit by Gertrude Lemon and others against the Garden of Eden Drainage District of Chariton County and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Kitt & Marshall, of Chillicothe, for appellants.

F. C. Sasse, of Brunswick, and S. J. & G. C. Jones, of Carrollton, for respondents.

LINDSAY, C.

A general demurrer was sustained to the petition of plaintiffs, who sought to enjoin the defendant drainage district and its supervisors and the contractor from constructing a levee, which, pursuant to the plan of drainage adopted, would bisect plaintiffs' lands, leaving part thereof between such levee and Grand river, and a part on the opposite side of the levee from the Grand river.

The petition alleged that the defendant drainage district is a drainage corporation, incorporated by decree of the circuit court of Chariton county under provisions of article 1, c. 28, It. S. 1919; that part of the lands of plaintiffs were attempted to be included in said district; alleges ownership by plaintiffs of 210 acres of land; that the levee to be constructed will run north and south upon the east side of Grand river, and will divide plaintiffs' land, leaving 85 acres east of said levee and within said drainage district, and leaving 125 acres on the west side of said levee and outside of said drainage district—that is, between said levee and said river—that plaintiffs' home and improvements are located on said 125 acres, and that no means are provided under the plan adopted for connection between said lands so to be divided.

However, in setting forth the facts charged, those just indicated and those as to the proceedings had by the circuit court and by the commissioners in the assessment of damages, we use the language of the petition, which upon that subject runs as follows:

"That defendant drainage district was organized for the purpose of draining and leveeing certain lands in Chariton county, Mo., in which district part of the lands of plaintiffs aforesaid were attempted to be included.

"Under the plan of reclamation adopted by said district for improving the lands in said district, a large levee is provided and ordered constructed to prevent and keep the overflow waters from Grand river and other streams from coming on the lands in said district. A large part of the lands of plaintiffs aforesaid are and will be located and placed outside of said levee and between said levee and Grand river, and under the plan for reclamation as adopted by defendant drainage district, the said levee will run north and south through plaintiffs' said lands aforesaid and divide said lands on each side of said levee, placing about 85 acres thereof on the inside and east of said levee and within said drainage district, and about 125 acres of plaintiffs' said lands, on which is situated and located the home and other improvements, on the outside and west of said levee and drainage district, and between said levee and Grand river, with no means provided for connection between said lands so described.

"That by dividing and separating plaintiffs' lands as aforesaid by the said proposed levee, plaintiffs' lands will be greatly damaged and depreciated in value. That the commissioners appointed to assess the value of lands to be taken for right of way of said levee, and to assess the damages to the lands by reason of putting the plan for reclamation into effect, did not consider or determine or find whether such lands of plaintiffs were damaged or not nor did they allow plaintiffs or their said lands any prejudicial or consequential damages on account of the construction of said levee over and across said lands and the dividing of said lands as aforesaid, although said lands will be, as stated aforesaid, greatly damaged on account of said levee and the putting into operation the said plan for reclamation and the improvements therein, the fact of such damages was not found or determined by them either way; nor did the court in confirming said commissioners' report allow any such damages which will accrue to plaintiffs' said lands as aforesaid, nor did the court in rendering its judgment in confirming said commissioners' report hear any evidence on the question of whether there were any such damages; nor was that fact presented to, heard, passed upon, or determined by the court on the hearing and determination of such report.

"Plaintiffs say the only damages allowed to plaintiffs and their said lands on account of the constructing of said levee and other improvements in defendant district was for the land actually taken for the right of way for the said levee, but no prejudicial division or consequential damages were considered or allowed by reason of the constructing and location of said levee over plaintiffs' said lands, when, as alleged, said lands will necessarily be greatly damaged and the value depreciated by reason of being so divided and cut into by said levee, and on account of the greater part and most valuable land, with the improvements thereon, being placed outside of the levee and between the levee and the river; as a result of which the said land will be ruined for agricultural purposes, and the market value thereof so greatly reduced that it cannot be sold; in fact it will have no market value or rental value whatever after said levee and other improvements called for in said plan for reclamation adopted by defendant district is constructed and put into operation."

After alleging that defendant McWilliams Dredging Company under its contract with the defendant drainage district is preparing to enter upon plaintiffs' land to construct the levee, the petition continued:

"Plaintiffs say that under the statute and laws under which the defendant drainage district was organized and is now operating, it was and is the duty of defendant district to provide for and pay, not only for the land actually taken for the said levee, but to also allow, provide for, fix, and pay all the other damages which would accrue to plaintiffs' said lands by reason of the taking of said lands for said levee and other improvements therein.

"Plaintiffs say under section 21, article 2, of the Constitution of Missouri, it is provided that private property shall not be taken or damaged for public use without just compensation, and until such compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.

"Plaintiffs say, under the said laws aforesaid and the above provision of the Constitution, that neither of the defendants can go in and on said lands of plaintiffs until the said consequential and prejudicial damages which will accrue to plaintiffs' said lands shall have been fixed and paid to plaintiffs; that not only the value of the lands taken shall be first fixed and paid, but also all the damages which will accrue to said lands shall be fixed, determined, and paid before the said land or the proprietary rights therein of plaintiffs can be divested or taken.

"Plaintiffs say that if defendants or either are permitted to go on said lands of plaintiffs and construct said levee and other improvements thereon, as called for by the said plan for reclamation, irreparable injury and damage will be done to and accrue to plaintiffs' said lands."

Plaintiffs have brought the case here upon appeal on the theory that, under the Constitution (section 21, article 2), damages resultant from the taking of their land for a public use must be ascertained and paid before their proprietary rights in the land are divested or can be disturbed; that there are consequential damages incident to the taking and construction of the levee which have not been assessed or paid to them; that therefore, title has not passed, and that payment of all damages being a condition precedent to divesting the plaintiffs' right in the lands, and to the right of the district to take possession, the district, as the condemning party, may be restrained from taking possession until such damages are determined and paid. There is no allegation that the damages which were allowed have not been paid in for the use of plaintiffs.

Where no part of the property of the landowner is taken for a proposed public use, and his property rights...