Carder v. Fabius River Drainage Dist. No. 3
Decision Date | 19 December 1914 |
Docket Number | No. 17821.,17821. |
Citation | 172 S.W. 13 |
Parties | CARDER et al. v. FABIUS RIVER DRAINAGE DIST. NO. 3 et al. |
Court | Missouri Supreme Court |
Rev. St. 1909, § 5496, provides for the incorporation of a drainage district on petition of the owners of a majority of the acreage of a contiguous body of swamp land. Section 5497 provides for notice to all owners who did not sign the petition, while section 5499 provides for the incorporation by order of court and hearing of objections. Section 5514 requires the court to determine whether the benefits will exceed the expenditures, and if the expenditures will exceed the benefits, to dissolve the corporation. Held, that in view of the power of the court, fraudulent statements by those who carried the petition around for signatures as to where the ditch would be located and as to its cost furnished no ground for enjoining the prosecution of the work, though such organizers became members of the board of supervisors, particularly where they did not constitute a majority of the board.
3. DRAINS (§ 16)—DRAINAGE CORPORATION— PUBLIC POLICY.
It would be contrary to public policy to permit the destruction of a drainage district corporation merely because those who were active in its creation made improvident statements as to cost and location.
4. DRAINS (§ 40)—DRAINAGE DISTRICT—VALIDITY.
In a suit to enjoin the construction of a ditch by a drainage corporation, evidence held not to show that the supervisors through a conspiracy procured its location at a point where it only benefited their land.
5. CONSPIRACY (§ 1)—ACTION—RIGHT TO ACTION.
Where a conspiracy is never consummated, it affords no right of action.
In Banc. Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.
Suit by Calvin Carder and others against the Fabius River Drainage District No. 3, a corporation, and D. A. Frazee and others, as the Board of Supervisors. From a judgment for defendants, plaintiffs appeal. Affirmed.
Injunction suit by Calvin Carder and 12 other taxpayers and owners of real estate in defendant drainage district, against the said district (called hereinafter for brevity the district), and D. A. Frazee and three others, as supervisors thereof. Object of the action is to enjoin defendants from constructing and maintaining its drainage ditch as proposed in the plan of drainage filed and adopted. Plaintiffs on a hearing upon the merits were cast, and have appealed, so far as we note, duly.
For a better understanding of the case and to better illustrate an alleged error based on the action of the court nisi in striking out a part of plaintiffs' petition, we copy same below, caption, descriptions of land, and alleged proper and improper ditch routes, verification, and formal parts omitted:
Defendants moved to strike out all that part of plaintiffs' petition which we may aptly designate as being included between [a] and [b], marked on the above petition, for the reasons: (a) That it failed to state facts which constitute a cause of action against defendants; (b) that there is no equity stated in the part asked to be stricken from the petition; and (c) that plaintiffs have an adequate remedy at law for all of the matters set out in the said part of the petition.
The court sustained the motion to strike out the portion of plaintiffs' petition above indicated, but no exception was properly saved by plaintiffs to this action. Defendants' answer was a general denial. The case was tried by the court upon the issues of fraud remaining in plaintiffs' petition, and judgment rendered for defendants dismissing plaintiffs' bill.
The facts shown upon the trial of the case, as we have with much difficulty gathered them from a meager and most unsatisfactory record, are substantially that defendant district is organized under the provisions of article 1 of chapter 41 of the Revised Statutes of 1909, as amended by the act of 1911; that plaintiff Calvin Carder, and defendants D. A. Frazee, J. S. Barr, George H. Walker, and S. R. Short compose the board of supervisors of said district, and that plaintiff...
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