Anderson v. Interriver Drainage and Levee District

• Decision Date: 23 May 1925
• Citation: 274 S.W. 448,309 Mo. 189
• Parties: ANDREW ANDERSON, EDITH ANDERSON and PHOENIX MUTUAL LIFE INSURANCE COMPANY OF HARTFORD, Appellants, v. INTERRIVER DRAINAGE & LEVEE DISTRICT
• Court: Missouri Supreme Court

274 S.W. 448

309 Mo. 189

ANDREW ANDERSON, EDITH ANDERSON and PHOENIX MUTUAL LIFE INSURANCE COMPANY OF HARTFORD, Appellants, v. INTERRIVER DRAINAGE & LEVEE DISTRICT

Supreme Court of Missouri

May 23, 1925

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

Affirmed.

J L. Fort, G. W. Munger and Haff, Meservy, German & Michaels for appellants.

(1) The court erred in sustaining defendant's general demurrer to plaintiffs' first amended petition. Art. 2, sec. 21, Mo Constitution; Bruntmeyer v. District, 196 Mo.App 360; Schalk v. District, 226 S.W. 277; D'Arcourt v. District, 245 S.W. 397; Bradbury v. District, 236 Ill. 36, 19 L. R. A. (N. S.) 991; Tarkio v. Richardson, 237 Mo. 49; Inter-River v. Ham, 275 Mo. 384; Greenwell v. Wills & Sons, 239 S.W. 583. The allegations show that plaintiffs' lands were damaged for a public use, and that they have a right of action against the district, under the Constitution of Missouri, for such damages. See authorities above cited. (2) The power to drain swamp and overflowed lands is referable to the police power of the State and is a legislative function, and the State may exercise this power through the agency of drainage districts. D'Arcourt v. District, 245 S.W. 396. But the police power is always subject to the rule that the Legislature may not exercise any power that is expressly or impliedly forbidden by the Constitution. City v. Commission, 207 S.W. 801; State v. Julow, 129 Mo. 163; State v. Railway Co., 242 Mo. 339; Ives v. Company, 201 N.Y. 271; Smith v. Farr, 46 Colo. 364; Belleville v. Company, 234 Ill. 438; State v. Company, 124 Iowa 323; State v. Hyman, 98 Md. 596; Black v. Schwartz, 27 Utah 387; State v. Donald, 160 Wis. 21. (a) Police regulations must not extend beyond that reasonable inference which tends to preserve and promote enjoyment generally of those inalienable rights with which all men are endowed and to insure which governments are instituted among men, and must not violate any express prohibition or requirement of the State or National constitution. Bonnett v. Vallier, 136 Wis. 201. (b) The exercise of police power cannot be made a cloak under which to overthrow or destroy constitutional rights. State v. Railroad, 242 Mo. 339; State v. Earl, 152 Mo.App. 235. (c) However broad the scope of police power, it is always subject to the rule that the Legislature may not exercise any power that is expressly or impliedly forbidden to it by the State Constitution. 12 C. J. 930, 934; State v. Ashbrook, 154 Mo. 375; State v. Julow, 129 Mo. 163; State v. Smith, 233 Mo. 242. (d) And whether it has, or has not, done this is a judicial question. 12 C. J. 933; State v. Railroad, 242 Mo. 339. The Constitution expressly forbids the damaging of private property for public use without just compensation, and if the Legislature should expressly provide that drainage districts should not be sued by owners of private property damaged for the use of the district the law would be unconstitutional. (3) To show that plaintiffs' property has been damaged for a public use, we cite the following cases: Houck v. District, 248 Mo. 373; State ex rel. v. District, 269 Mo. 458; Morrison v. Morey, 146 Mo. 543; Carter v. District, 262 Mo. 556; State ex rel. v. District, 236 S.W. 849; State ex rel. v. District, 236 S.W. 15; Arnold v. District, 209 Mo.App. 220; Greenwell v. Wills, 239 S.W. 578; Tant v. District, 238 S.W. 848; Hausgen v. District, 245 S.W. 401. The question of whether or not plaintiff's lands have been damaged for a public use is a judicial question. State v. West, 198 S.W. 1111. (4) To show that the constitutional provision above quoted is self-enforcing and that damages may be recovered in any appropriate common-law proceeding, we cite the following cases: Hickman v. City, 120 Mo. 116; Clemens v. Company, 184 Mo. 58; McGrew v. Railroad, 230 Mo. 560; McGrew v. Paving Co., 247 Mo. 560; Smith v. Sedalia, 244 Mo. 124; Markowitz v. Kansas City, 125 Mo. 485; Greenwell v. Wells & Sons, 239 S.W. 578; Thurston v. St. Joseph, 51 Mo. 510; Householder v. Kansas City, 83 Mo. 488, 21 F. 257. (a) The words "or damaged" placed in the Constitution after the word "taken" broaden the field of consequential damages where there is no physical taking of the owner's property. St. Louis v. Railroad, 272 Mo. 80. (b) There may be a violation of the constitutional guaranty without a physical taking. 12 C. J. 1215; In re Jacobs, 98 N.Y. 98; Janesville v. Carpenter, 77 Wis. 288; In re Marshall, 102 F. 325. (5) Respondent appeared in this case, obtained leave to answer and answered, and after answering, filed its plea to the jurisdiction of the court, and its plea was overruled. Granting that respondent was right in its contention that it had been sued in the wrong venue in this case, how can its contention prevail against the solemn judgment of the trial court deciding its plea to the jurisdiction against it? Baisley v. Baisley, 113 Mo. 550. The respondent waived its right to attack the venue in which it was sued by obtaining leave to answer and by answering. State v. Southern, 214 S.W. 103. (6) The general demurrer went to the merits of the case and a judgment sustaining the same, appealed from, would be a bar to a subsequent suit between the same parties touching the same cause of action. Wells v. Moore, 49 Mo. 229; Insurance Co. v. Smith, 117 Mo. 261. (7) The demurrer reaches only matters which appear on the face of the petition. City v. Upham, 211 S.W. 882. (a) A demurrer admits all well-pleaded facts. Brennan v. Church, 192 S.W. 982; Master v. Jones, 226 S.W. 885. A demurrer does not admit conclusions of law alleged. State v. Harty, 276 Mo. 583; Harelson v. Tyler, 281 Mo. 383; Musser v. Musser, 281 Mo. 649. (b) In determining the legal effect of the demurrer, the whole petition should be looked to, for the demurrer does not admit a fact which the petition contradicts. Searcy v. County, 176 Mo. 493. (c) In distinguishing between facts and conclusions of law it must be borne in mind that an ultimate fact which is a corollary from other facts is still a fact, and the means by which its existence is to be established need not be proved. Jones v. Co., 187 Mo.App. 602.

Atkinson, Rombauer & Hill, William N. Barron and Oliver & Oliver for respondent.

(1) It is conceded that the St. Francis River overflowed its banks and that the Inter-River Drainage District built the levee on the west side of the river to protect the lands within the district from the overflow waters. Such waters are surface waters. Goll v. Railroad, 271 Mo. 668; I. R. D D. v. Ham, 275 Mo. 384; Adair Drainage District v. Railroad, 280 Mo. 244; Abbott v. Railroad, 83 Mo. 271; Wells v. Payne, 235 S.W. 488; Vanlandingham v. Railroad, 206 S.W. 399; Brown v. Railroad, 248 S.W. 15. (2) The common-law doctrine as to surface water obtains in Missouri. Surface water is to be treated as a common enemy and the lower proprietor may rightfully protect his property therefrom by any means available. Adair Dr. Dist. v. Railroad, 280 Mo. 252; Goll v. Railroad, 271 Mo. 668; I. R. D. D. v. Ham, 275 Mo. 384; Abbott v. Railroad, 83 Mo. 271; Thompson v. Railroad, 137 Mo.App. 69; Thoele v. Planing Mill Co., 165 Mo.App. 707; Mehonray v. Foster, 132 Mo.App. 229; Appelgate v. Franklin, 109 Mo.App. 293; Johnson v. Leazenby, 202 Mo.App. 232; Hoester v. Hemsath, 16 Mo.App. 485. (3) In order to constitute an actionable wrong two factors must concur; first, a wrongful act; second, injury resulting therefrom. Rex v. Commrs., 8 Barn & C., 362; 1 C. J. 937, and notes; Lamb v. Reclamation Dist., 73 Cal. 125; Bruner v. Martin, 76 Kan. 862. The building upon the bank of a river by defendant of a levee upon its own land to protect itself against overflow water escaping from such river, is lawful in itself. There was no invasion of a right possessed by plaintiff. Hence no wrong or actionable act has been committed. Abbott v. Railroad, 83 Mo. 283; McCormick v. Railroad, 57 Mo. 433; Thompson v. Railroad, 137 Mo.App. 69; Goll v. Railroad, 271 Mo. 668; Mehonray v. Foster, 132 Mo.App. 231; Railroad v. Schneider, 30 Mo.App. 620; Adair Drainage Dist. v. Railroad, 280 Mo. 244. (4) The levee was built in the usual and ordinary manner. It did not unnecessarily injure plaintiff. There is no allegation that it was built otherwise. The only injury complained of is increased height of the water on the east side which necessarily resulted from building the levee. That increase in height affected all lands on the east side of the river. Such an injury is consequential and indirect, and is damnum absque injuria. Inter-River D. D. v. Ham, 275 Mo. 384; Goll v. C. & A. Railroad, 271 Mo. 655; Adair D. D. v. Railroad, 280 Mo. 252; Jackson v. United States, 230 U.S. 1; Hughes v. United States, 230 U.S. 24; Cubbins v. Mississippi River Comm., 204 F. 303; Tenn. v. Board Directors, 249 U.S. 588, 63 L.Ed. 790; McCoy v. Plum Bayou Levee Dist., 95 Ark. 345; Gray v. Reclamation Dist., 163 P. 1031; Indian Creek D. D. v. Garrott, 85 So. 312; St. Louis-S. W. Railroad v. Miller Levee Dist., 207 F. 338; Lamb v. Reclamation Dist., 73 Cal. 125, 14 P. 625; Board of Levee Commrs. v. Harkleroads, 62 Miss. 807. (5) There was no obstruction of the channel of the St. Francis River by the defendant. Defendant's levee is alleged to have been built on the west bank of the river. The channel is the depression in the earth's surface between the banks through which the water of the stream usually flows. It is the sunken or eroded bed of the stream between the banks. It is the depression in which the waters of the stream are confined when unaffected by drouth or flood. The plaintiffs' theory that there are two channels, one a normal channel such as above described, and the other a "flood channel" of undefined extent and dependent solely on...