Carder v. Fabius River Drainage District No. 3

• Decision Date: 19 December 1914
• Citation: 172 S.W. 13,262 Mo. 542
• Parties: CALVIN CARDER et al., Appellants, v. FABIUS RIVER DRAINAGE DISTRICT NO. 3, D. A. FRAZEE et al
• Court: Missouri Supreme Court

172 S.W. 13

262 Mo. 542

CALVIN CARDER et al., Appellants, v. FABIUS RIVER DRAINAGE DISTRICT NO. 3, D. A. FRAZEE et al

Supreme Court of Missouri

December 19, 1914

Appeal from Knox Circuit Court. -- Hon. Charles D. Stewart, Judge.

Affirmed.

J. C Dorian and J. A. Whiteside for appellants.

The board of supervisors alone has power to locate the ditch. R S. 1909, sec. 5512. But the board of supervisors has no right to so locate the ditch that the actual damages will be maximized and the actual benefits minimized to the extent of making the actual damages exceed the actual benefits. Laws 1911, p. 212, sec. 5518a. True this section furnishes a remedy where the estimated cost exceeds the benefits. But in this case appellants alleged and offered to prove that the estimate was false and fraudulent and that the item of the construction of the ditch would alone cost half as much again as it was estimated to cost; and where it is apparent and can readily be shown that the cost will exceed the benefits, the many trials, in this case about forty, of exceptions to assessments of damages and benefits are expensive and useless trials. The estimated cost would not be found to be inadequate until the work had progressed, irreparable damage done, and surely, then, there would be no adequate remedy. If the work was left unfinished great damage would be done. If it was finished it would have to be done by levying assessments in excess of the benefits, which the law does not warrant. Such a proceeding would be confiscatory, which is not authorized under any law of the land. The only adequate remedy is to restrain them, and that is the proper remedy. Sears v. Hatchkiss, 25 Conn. 171; Zable v Harshman, 68 Mich. 270; Mayor v. Meserole, 26 Wend. 140; Wright v. Shanhan, 16 N.Y.S. 785; Realty Co. v. Haller, 128 Mo.App. 66; Williams v. Harrison, 135 Mo.App. 152; Hartwell v. Armstrong, 19 Barb. (N.Y.) 166; Winkleman v. Drainage Dist., 170 Ill. 37; Brush v. Carbondale, 78 Ill. 74; Mt. Carmel v. Shaw, 155 Ill. 37; Railroad v. Drainage Dist., 129 Ill. 417; Bridge v. Drainage Dist., 140 Ill. 53; People ex rel. v. Myers, 124 Ill. 95; Hosmer v. Drainage Dist., 135 Ill. 51; School Dist. v. Young, 152 Mo.App. 304. If the allegations of the petition which were stricken out by the court are true, and the proof offered by plaintiffs could have been made, then the defendants are guilty of misfeasance, are violating the plain and manifest intent of the statute under which they are acting and are not proceeding in good faith, and the court should have heard the proof and granted the relief sought. What appellants alleged and offered to prove would have made a case such as entitled them to the relief sought. This conduct of the board will, if allowed to continue, bankrupt the district and the improvements will be a detriment to the district, and not a benefit as intended by the statute, and appellants and other landowners of the district will be required to expend a large sum of money for work which will be of no benefit, but an injury to them. If the board cannot be restrained, appellants and other landowners of the district are, truly, at the mercy of the board. Their holding of office will continue until they have carried out their plans. No election can be held without their calling it, and it is fair to presume that none will be held, until they have carried out their plans, judging the future by the past.

F. H. McCullough and W. T. Rutherford for respondents.

(1) All motions which have formed a basis of exceptions must be set out in the bill of exceptions, or where it appears in the record proper (as here) a call must be made in the bill for the motion itself. Martin v. Est. of Nichols, 63 Mo.App. 346; Pearson v. O'Connor, 151 Mo.App. 171; Dienen v. Pub. Co., 232 Mo. 425; Ashton v. Penfield, 233 Mo. 419; Shohoney v. Railroad, 231 Mo. 142. (2) Matter in a pleading that does not state a caues of action or defense is open to a motion to strike out as well as to a demurrer. Shohoney v. Railroad, 231 Mo. 148; Sapington v. Jeffries, 15 Mo. 631; Niedelet v. Wales, 16 Mo. 215; Bailey v. Cannon, 17 Mo. 597; Robinson v. Lawson, 26 Mo. 71; Ming v. Suggett, 34 Mo. 365; Howell v. Stewart, 54 Mo. 407. (3) When a motion is to all intents and purposes a demurrer dispositive of the whole case on a matter of law, the rules relating to a demurrer may then be applied to such a motion. Shohoney v. Railroad, 231 Mo. 149; Austin v. Lohring, 63 Mo. 21; O'Connor v. Koch, 56 Mo. 258. (4) Where a new right or means of acquiring it is given, and an adequate remedy for violating it is given, in the same statute, then the injured parties are restricted to the statutory remedy. Hickman v. Kansas City, 120 Mo. 110; State v. Bittinger, 55 Mo. 596; Baker v. Railroad, 36 Mo. 543; Soulard v. St. Louis, 36 Mo. 546; Leary v. Railroad, 38 Mo. 486; Railroad v. Bebout, 15 Am. & Eng. Ann. Cases, 1145, and notes on page 1150. (5) The rule is that an injunction will not be granted where there is an adequate remedy at law. 22 Cyc. 769; Planet Co. v. Railroad, 115 Mo. 613; McKee v. Allen, 204 Mo. 674. (6) An injunction is a matter of grace, and not of right. Johnson v. Railroad, 227 Mo. 450; 22 Cyc. 746, 749. (7) Plaintiffs have an adequate remedy provided by statute for such injury and damages as they or any of them may sustain. Secs. 5517, 5518, R. S. 1909; Sec. 5518a, Laws 1911, p. 213; Secs. 15, 16, 29, 36, Laws 1913, pp. 240, 241, 250, 253; Drainage Dist. v. Richardson, 237 Mo. 49; Railroad v. Drainage Dist., 237 Mo. 86; Laws 1913, pp. 233-267.

OPINION

In Banc

FARIS J.

-- Injunction suit by Calvin Carder and twelve 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:

"Plaintiffs state that Fabius River Drainage District No. 3 is a drainage corporation, organized and existing under and by virtue of the laws of the State of Missouri.

"That defendants D. A. Frazee, J. S. Barr, Geo. H. Walker and S. R. Short are members of the board of supervisors of defendant district.

"That plaintiffs are the owners of real estate in the counties of Knox and Clark, in the State of Missouri, the same being within the limits and boundary lines of said drainage district and a part thereof, and said lands being as follows:"

[Here follow descriptions of the lands of plaintiffs.]

"That the board of supervisors of this district has filed, according to law, the plan for drainage, including within its scope the proposed location of the main ditch and topographical survey, the location of said ditch being as follows:"

[Here follows proposed route of ditch as the filed "plan for drainage" locates it.]

[a] "That the topographical survey shows by the elevations and depressions of the land that the location of the proposed ditch embraced in said plan for drainage is impractical and will result in no benefit, but will result in detriment to said drainage district, and will work irreparable damage to plaintiffs; that said ditch, if located as proposed in said plan for drainage, will not carry off the surplus overflow water, which will collect and stand on plaintiffs' lands; that ditch, if so located, will be on higher ground than the lands of plaintiffs and other lands in said district; will cross the old creek or river many times, which will cause said creek or river to close up and cease to flow, and by destroying the outlet, the overflow and surplus water will collect on the lands of plaintiffs and leaving to plaintiffs no outlet for said water in lieu thereof.

"That when the old creek or river is closed up, as it will be if said ditch is located as proposed in said plan for drainage, there will be no outlet for the waters of Long Branch, Betram Branch, Vernon Branch and other streams which come into the creek or river from the south, thereby causing the waters from said streams to overflow and remain on the lands of the landowners in said district and those of plaintiffs.

"That said ditch, if so located, will be much more expensive to construct and will cause the damage to plaintiffs' and other lands in said district to be much greater than if said ditch was properly located as aforesaid.

"That there will be no benefits accrue to plaintiffs' or other landowners in said district; it will render worthless much of the lands of plaintiffs and will be a detriment and damage to the lands of plaintiffs and not a benefit.

"That said topographical survey shows that the proper location for said ditch would be as follows:"

[Here follow plaintiffs' personal views of the proper route for the proposed ditch.]

"That if said ditch is located as last above described, it will be the more practical and beneficial location, and be of the most benefit to said district and to plaintiffs and will benefit the landowners in said district and plaintiffs far in excess of the damages and cost of construction; that the benefits will be greater, the damages less and the cost of construction much less, so that the ditch will be a benefit to the district, and the benefits will exceed the damages.

"Plaintiffs state that if said ditch is...