Barnes v. Missouri Valley Const. Co.

Decision Date10 February 1914
PartiesBARNES et al. v. MISSOURI VALLEY CONST. CO. et al.
CourtMissouri Supreme Court

Bill by Elisha B. Barnes and others against the Missouri Valley Construction Company and others. From a judgment dismissing their bill, plaintiffs appeal. Affirmed.

Equity in the circuit court of Buchanan county to restrain defendants from constructing a drainage ditch through lands claimed by plaintiffs. From a judgment dismissing plaintiffs' bill, they appeal to this court.

Plaintiffs' petition does not so indicate, but it is disclosed by other parts of the record that this litigation arose out of an order of the county court of Platte county organizing drainage district No. 1 in said county, and in attempting to cause the construction of a ditch about five miles long, which ditch is intended to straighten the channel of Sugar creek and carry the waters thereof into the Missouri river. Sugar creek is described in the petition as a stream from four to six feet wide and one foot deep. It has a crooked channel and runs from northeast to southwest through a portion of Platte county, emptying into Little Sugar Lake, situated about one mile from the Missouri river in said county.

The plaintiffs in their petition have diligently avoided all reference to the fact that the county court is seeking to construct a ditch to drain or otherwise improve lands situated in the above-named drainage district. Said petition merely asserts, in a general way, that defendants are threatening and about to enter upon designated lands of plaintiffs and unlawfully and maliciously cut down the banks of Sugar creek, dig up and destroy plaintiffs' crops, fences, hedges, houses, and barns, and turn the waters of said creek upon plaintiffs' lands, to their damage in the sum of many thousands of dollars. Said petition further alleges the insolvency of all the defendants, and, in appropriate language, charges the absence of any adequate remedy at law to protect the property of plaintiffs. Defendants, by their joint answer, assert that the Missouri Valley Construction Company is under a contract with the county court of Platte county to construct a public drainage ditch along a right of way 100 feet wide, running across some of the lands claimed by plaintiffs. Defendants further specifically plead the condemnation of said right of way for a drainage ditch by a judgment of the county court of Platte county, entered on December 11, 1911, in a proceeding begun and prosecuted under article 4, c. 41, R. S. 1909. The aforesaid judgment, purporting to condemn the right of way for a drainage ditch, is copied into defendants' answer, and purports to recite the precise boundaries of the right of way alleged to have been condemned, and also asserts the jurisdiction of the county court to enter said judgment of condemnation. Defendants deny any intention to enter upon or disturb any lands now owned by plaintiffs, and assert that plaintiffs have heretofore instituted and maintained another suit which had for its purpose the prevention of the construction of the aforesaid drainage ditch, and pray that plaintiffs be enjoined from bringing any further actions, either at law or in equity, having for their purpose the prevention of or delay in digging said ditch. The defendant Galen B. Anderson is a civil engineer, appointed by the county court of Platte county to assist in surveying the right of way for the aforesaid drainage district, and defendant J. W. Harrington is clerk of the county court of Platte county. They each deny any intention of doing anything about or concerning the lands of plaintiffs, except such acts as they are required to perform in their respective capacities as officers of said county court. The reply of plaintiffs is a general denial of all allegations in defendants' answer. The plaintiffs filed a motion to strike out several parts of defendants' said answer, which motion was overruled, and thereupon defendants filed a motion to dissolve the temporary restraining order issued by the circuit court of Platte county at the time this suit was instituted, on the following grounds: (1) No equity on the face of the petition; (2) a complete defense set up in defendants' answer; (3) and want of jurisdiction on the part of the court to determine the matters in issue. The plaintiffs filed a motion praying for judgment on the pleadings, which motion was overruled. When the case was called for trial the plaintiffs insisted that the answer of defendants was in the nature of a confession and avoidance, and therefore the burden of proof should be cast upon them. The trial court seems to have adopted the plaintiffs' suggestion in this respect.

The evidence of defendants tended to prove that at the November term, 1908, of the county court of Platte county one Silas Berry and nine other persons owning lands adjacent to Sugar creek in said county filed a petition, praying that a ditch be constructed so as to straighten the channel of said creek and turn the waters thereof into the Missouri river, and that the cost of constructing such ditch be taxed against the lands which would be benefited by said improvement. Said petition contains all the recitals required by section 5579, R. S. 1909, except that it omits to recite whether the petitioners desire the issuance of bonds to raise funds to make the contemplated improvement. This omission does not seem to be important, as there has been no attempt to issue bonds. On Monday, March 1, 1909, the county court of Platte county heard the petition of said Silas Berry, et al., as well as 13 remonstrances or exceptions to said petition, and, finding that the ditch prayed for was practicable, and would be of great public utility in preserving the lands of petitioners and the public health, ordered that the ditch be constructed, and that the lands to be benefited thereby should constitute drainage district No. 1 of Platte county, Mo., which order described the lands to be included in said district. Said order of March 1, 1909, recited the publication of a notice in a weekly newspaper published in Platte county of the contemplated improvement and intended incorporation of said drainage district, as required by section 5581, R. S. 1909. On August 2, 1909, the county court approved the report of the commissioners appointed by it to view, survey, and locate the precise boundaries and route of the proposed drainage district; and on said last-named day ordered and directed Galen B. Anderson, its engineer, to let a contract for the construction of said proposed ditch. On October 1, 1909, 7 of the plaintiffs in the present injunction suit, with 13 other landowners of drainage district No. 1 of Platte county, instituted a suit in the circuit court of that county to...

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