Campbell Lumber Co. v. Levee Dist. No. 4

• Decision Date: 31 December 1914
• Docket Number: No. 1286.,1286.
• Parties: CAMPBELL LUMBER CO. v. LEVEE DIST. NO. 4 et al.
• Court: Missouri Court of Appeals

172 S.W. 64

CAMPBELL LUMBER CO. v. LEVEE DIST. NO. 4 et al.

No. 1286.

Springfield Court of Appeals. Missouri.

December 31, 1914.

1. LEVEES (§ 5) — LEVEE DISTRICT — ATTACK UPON.

The corporate existence of a levee district cannot be collaterally questioned by one who did not even own lands within the district, on the ground that the notice of the landowners' meeting to vote on the doing of the work was not given according to Rev. St. 1909, § 5728, for levee districts are declared to be public corporations by section 5714, and the legality of such corporations cannot be collaterally assailed.

2. LEVEES (§ 9) — LEVEE DISTRICTS — POWERS OF COURTS — "PUBLIC CORPORATION."

Levee districts, being "public corporations" authorized to prevent overflowing of lands, have considerable discretion in determining the method of work, and the courts should not lightly interfere with their action.

3. LEVEES (§ 11) — DISTRICTS — ACTIONS — GROUNDS OF RELIEF.

Defendant levee district, which was first organized, did not run its levee across the mouth of a slough through which water backed from a river onto plaintiff's land. Thereafter a second district which included plaintiff's and other land above the defendant district, was organized; but its levee, though built across the mouth of the slough, did not quite connect with that of defendant. The two levees were constructed in a different manner. Held that, where plaintiff's lands were marshy and frequently covered with water without the overflow, defendant could not by injunction be required to change its levee, so as to connect it with the upper levee, though waters from the river flowed through the gap.

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Action by the Campbell Lumber Company against Levee District No. 4 and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is a suit to restrain the defendant levee district from constructing a levee along the east bank of the St. Francis river in the south part of Dunklin county, Mo., in the manner and at the location fixed in organizing such district. The defendant district is organized under the provisions of article 10 of chapter 41, R. S. 1909, being sections 5714 to 5763. The levee being constructed by the defendant was located in the manner provided by said article. Plaintiff's claim is that the construction of the levee, and particularly the upper or northern portion thereof, will cause its lands to be overflowed and inundated. Plaintiff's lands are not in levee district No. 4, but are in levee district No. 25, the levee of which is also being constructed along the east bank of St. Francis river in said county, but further north and upstream from district No. 4. Levee district No. 25 is the next levee district upstream from levee district No. 4. The river runs substantially north and south. The accompanying plat will show the location of plaintiff's lands with reference to the St. Francis river and the two proposed levees, No. 4 and No. 25. The levees are marked by red lines,¹ and plaintiff's land is shaded and called "Laswell Lands," because of a former owner. Levee No. 25 extends from D to A. Levee No. 4 extends from B to C.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It will be seen from this plat that plaintiff's lands, 3,800 acres, lie in the low bottoms of Varner and St. Francis rivers, where the same join, and these lands are subject to almost constant overflow in the absence of any levee. Varner river is more in the nature of a slough or bayou, and is mostly formed by overflow water from the St. Francis river. Levee No. 25 is being built across the source of Varner river or bayou, where it leaves the St. Francis river, and will dam up such source. It will be noticed that levee No. 4 does not cross the mouth of Varner river near point A. but leaves St. Francis river and follows the east bank of Varner river a distance of 4 or 5 miles. Levee district No. 4 was established some two years before levee district No. 25, and its levee was not, therefore, located with a view to connecting with levee No. 25, which was not yet proposed, but was so constructed to prevent the waters of Varner river, as well as of the St. Francis river, from overflowing the lands in district No. 4. In locating the levee of No. 25, it crosses a large part of the wide, low bottoms made at the mouth of Varner river, but does not extend far enough to connect with levee No. 4, or to prevent the backwaters from the St. Francis river overflowing the lowlands of plaintiff. There is a space of about 1,000 feet at point A on the plat, shown by the heavy black line, which is not closed by either levee. What plaintiff really wants is to compel the defendant to so change its levee as to follow St. Francis river, as shown by the heavy black line, and to thus close up this vacant space, instead of deflecting the same up the east bank of Varner river.

T. R. R. Ely and Virgil McKay, both of Kennett, for appellant. Ward & Collins, of Caruthersville, and George A. Burr, of Paragould, Ark., for respondents.

STURGIS, J. (after stating the facts as above).

The plaintiff, although alleging that the defendant "is a body corporate organized and existing under and by virtue of the laws of the state of Missouri," attacks its corporate existence and right to construct this levee because it was not "organized according to law." The specific objection is that the notice required by section 5728, R. S. 1909, in calling a meeting of the landowners to vote on the question of doing the work according to the plans and estimates made by the engineer and assessor, was not published as required by that section. From a reading of the method of organizing such corporations by the county courts, it appears to us that the corporate existence of the defendant is in no wise dependent on the regularity of this notice or the method of voting or conducting this meeting. The corporation was already formed before this landowners' meeting was called, and was merely exercising its corporate powers in calling and holding such meeting. The failure to give the notice required might affect the power of the corporation to levy and collect the taxes from the landowners in the district, and such question might be raised in a suit to collect such taxes, or even to enjoin the doing of the work, by an interested landowner; but that is not before us for decision.

We do hold, however, that...