Anderson v. Inter-River Drainage and Levee Dist.

Decision Date23 May 1925
Docket NumberNo. 24856.,24856.
Citation274 S.W. 448
PartiesANDERSON et al. v. INTER-RIVER DRAINAGE AND LEVEE DIST.
CourtMissouri Supreme Court

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Andy Anderson and others against the Inter-River Drainage and Levee District, a quasi municipal corporation. Judgment for defendant, and plaintiffs appeal. Affirmed.

J. L. Fort, of Dexter, G. W. Munger, of Bloomfield, and Theodore Remley and Haff, Meservey, German & Michaels, all of Kansas City, for appellants.

Atkinson, Rombauer & Hill, of St. Louis, William . N. Barron, of Poplar Bluff, and Oliver & Oliver, of Cape Girardeau, for respondent.

LINDSAY, C.

The plaintiffs Andy Anderson and Edith Anderson, as owners of 262 acres of land lying in Stoddard county, along the east bank of the St. Francis river, sued defendant Inter-River drainage and levee district, a district organized under a decree of the circuit court of Butler county, and alleged to be located in Butler county. The Phœnix Mutual Life Insurance Company is the holder of a lien under a deed of trust upon said land, securing the payment of a loan. The plaintiffs asked judgment for $30,000, as the damages alleged to have been sustained by them through the construction by defendant of a levee upon the west bank of said river, which it is alleged caused the waters of said river to be thrown over and upon plaintiff's land, rendering it unfit for cultivation. The St. Francis river forms the boundary line between Stoddard county on the east, and Butler county on the west.

The trial court sustained a general demurrer to plaintiffs' amended petition, and, plaintiffs declining to plead further, judgment was entered for defendant, and the plaintiffs have appealed. The issues presented here are those arising upon the demurrer to said amended petition. Certain matters touching the question of jurisdiction of the circuit court of Stoddard county over the defendant, and touching procedure and practice, discussed in the brief for plaintiffs, are not referred to in the brief of defendant, and require no more at this time than a word of explanation, It appears from the printed transcript of the whole record, and of the minutes of the trial judge, that the original petition was filed by plaintiff Andy Anderson against this defendant and also against Mingo drainage district, a district organized and located in Stoddard county. In the original petition the plaintiff sought a recovery against both districts for damages caused through overflow of his land, which is not situated in either district, by the improvements respectively constructed by Mingo drainage district, in Stoddard county, east of the St. Francis river, and by defendant in Butler county, west of said river. Process issued. Both of said districts appeared and took time to plead. Afterward the Mingo district filed its demurrer, and this defendant filed answer, and the cause was continued by agreement. At the next term the plaintiff dismissed the cause as to the Mingo drainage district, and filed the amended petition against this defendant alone, and therein there were joined as coplaintiffs Edith Anderson and Phœnix Mutual Life Insurance Company. Afterward the defendant filed its plea to the jurisdiction of the court over the defendant, based upon the nature of the prior proceedings referred to, and alleging that the process of the court had been abused to bring defendant within its jurisdiction. The plea was overruled. Then followed the defendant's demurrer to said amended petition, upon the ground that the petition "fails to state facts sufficient to constitute a cause of action against this defendant." The plaintiffs, perhaps in anticipation that defendant would press here the question of jurisdiction and certain other questions having to do with appellate procedure, have gone at some length into these questions, and have cited numerous authorities thereon, but defendant's attorneys have raised no issue here as to the venue, or as to jurisdiction over the defendant, or as to the steps taken in the appeal, but have confined their statement, brief, and argument to the issues raised by the demurrer — the question whether the petition states a cause of action.

The petition alleges that defendant district was incorporated, "for the purpose of drainage from its territory, by means of ditches and drains, the water that may fall within said territory, and likewise to prevent, by means of levees and embankments, waters from outside of said territory from flowing into said territory." After setting forth the status of the respective parties, and describing the land, the same being situated in Stoddard county, and lying east of the St. Francis river, the plaintiffs continued as follows:

"Aver that no part of said real estate lies within, or constitutes any part of, the territory of said drainage district, neither has said real estate, or any part thereof, been assessed with benefits, or awarded damages, on account of the location and construction of the improvements of said district hereinafter described.

"Aver that about the year 1919 said district constructed a levee from 10 to 15 feet high along, and on the west bank of St. Francis river, from a point on said river known as Hodge's Ferry, in the county of Butler and state of Missouri, in a general southern direction for a distance from said ferry of about 25 miles, and to the dividing line between the state of Arkansas and the state of Missouri; that from the beginning point of said levee, at said ferry, to the ending point thereof at said state line, said river forms the dividing line between said Butler county, on the west side of said river, and Dunklin county and Stoddard county, in the state of Missouri, on the east side of said river.

"Aver that the lands in said Butler county which constitute the west bank of said river, between said ferry and said state line, were and are lower than the lands in the counties of Dunklin and Stoddard aforesaid which constitute the east, or opposite, bank of said river, from said ferry to said state line.

"Aver that the lands lying on the east side of said river, between said ferry and said state line, or most of said lands, slightly or gradually fall eastwardly from the eastern bank of said river, between said ferry and said state line, and that plaintiffs' said land lies adjacent to and borders along and near the east bank of said river, between said ferry and said state line, and at a distance of about 100 feet from the center of the main channel of said river, and on the opposite side thereof from said levee, and being distant eastwardly from said levee from a quarter of a mile to three-quarters of a mile; that the natural banks of said river, on the western side thereof, where the river flows along said levee, is lower than the opposite, or eastern, bank thereof, where plaintiffs' said lands are located; that said river runs through a low, flat, and practically level country, and is a winding stream; that the lands upon which said levee was built were frequently under water before the same was built, and during a portion of the year the lands last mentioned formed a part of the bed of said river, and the waters of said river escaped and passed down the river at frequent intervals, and at various seasons of the year, over the lands upon which said levee was built, thereby enabling said waters to escape and pass off and down said river without obstruction and more rapidly than they otherwise would.

"Aver that said levee constitutes an obstruction to said river and the flow of the waters therein, and diverts the waters of said river from the west side thereof out of their natural water channel and over, to, and upon plaintiffs' said lands to their great damage.

"Aver that the construction of said levee narrowed the channel of said river, and caused the water in said river to pile up and flow over the eastern bank of said river, from said levee, to and upon plaintiffs' said lands to their great damage.

"Aver that the building and construction of said levee has entirely closed, cut off, and obstructed the high water channel, or flood channel, of said river or the west side thereof, thereby causing the waters of said river to be thrown over and upon plaintiffs' said lands;. that, before the location and construction of said levee, plaintiffs' said lands were dry and tillable and had been used for farming and agricultural purposes; that the location and construction of said levee has destroyed said lands for said purposes; that said destruction and loss resulted from throwing or casting the waters of said river over and upon said lands, and as a consequence of obstructing the channel of said river as aforesaid; that said waters have been, and still are, so cast over and upon said lands, for such periods of time, and at such seasons of the year, as to render them unfit for cultivation, and without value for agricultural purposes, and to the damage of the plaintiffs in the sum of $30,000, for which, with costs of suit, plaintiffs pray judgment."

There is no negligence charged, nor want of lawful authority in defendant. The plaintiffs' case is bottomed on the theory that their property has sustained damage in consequence of the construction of the levee along and on the west bank of the river; that this damage is for a public use within the meaning of section 21, of article 2 of the Constitution of this state; that this constitutional provision is self-enforcing; and that the damages are recoverable thereunder in any appropriate common-law proceeding. There is controversy between the parties over the effect of the facts, as charged in the petition, and admitted by the general demurrer, and whether the defendant may invoke the rule applicable to overflow and surface water.

The demurrer admits the truth of all facts properly pleaded, and carries admission of all...

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