Carroll v. Little River Drainage Dist.

• Decision Date: 06 December 1921
• Docket Number: No. 16166.,16166.
• Citation: 237 S.W. 207,208 Mo. App. 537
• Parties: CARROLL v. LITTLE RIVER DRAINAGE DIST.
• Court: Missouri Court of Appeals

237 S.W. 207

208 Mo. App. 537

CARROLL v. LITTLE RIVER DRAINAGE DIST.

No. 16166.

St. Louis Court of Appeals. Missouri.

December 6, 1921.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

Action by William N. Carroll against the Little River Drainage District. Judgment for defendant, and plaintiff appeals. Affirmed.

Ralph E. Bailey, of Sikeston, and Gallivan & Finch, of New Madrid, for appellant.

Oliver & Oliver, of Cape Girardeau, for respondent.

ALLEN, P. J.

Plaintiff is the owner of a tract of land in Stoddard county lying within the boundaries of the defendant, the Little River drainage district, a drainage district incorporated in 1907 by a decree of the circuit court of Butler county under the provisions of an act of the Legislature of 1905 (Laws 1905, p. 180). The right of way for one of the ditches of the defendant district, ditch No. 37, was condemned through the southeastern part of Plaintiff's land. Little river flows approximately from north to south ill this locality; and plaintiff's land lies west thereof. Ditch No. 37 begins on the west side of Little river, at a point a short distance north of the southern boundary of plaintiff's land, and extending in a southwesterly direction, crosses plaintiff's south line, where it intersects a road, extending east and west, upon which plaintiff's land abuts on the south. It appears that the land lying east and south of said ditch, and west of Little river, now belongs to one Marshall. After this ditch had been dug plaintiff fenced his land, which was woodland. On the south of his land this fence, beginning at the southwest corner of the tract, extended due east to ditch No. 37, where it crossed the ditch, immediately north of a bridge on the road mentioned above, and then extended northeast, along the western edge of the right of way of the ditch, to a point near Little river, where it recrossed the ditch and extended north along the west side of the river. It appears that this was a "three-wire fence"; and according to the evidence for plaintiff it was in such condition as to turn cattle. But defendant's evidence is that there was a large gap in the fence near the head of ditch No. 37, and other openings therein along Little river.

On or about September 1, 1916, the defendant district was engaged in constructing a dam across ditch No. 37, at a point near Little river. It appears that plaintiff refused to permit defendant's employés to camp upon his land while engaged in this work, as did likewise Marshall, the owner of the land on the other side of the ditch. Thereupon the engineer in charge of the work for the district established a camp on the road mentioned above, a short distance east of the bridge over said ditch. In order to go from this camp to the location of the dam, defendant's employés crossed the bridge and proceeded along the west or north side of the right of way. In so doing it was necessary to pass through plaintiff's said fence, which had been constructed across the ditch immediately north of the bridge, and defendant's employés cut the fence at that point. It appears that defendant's engineer gave orders to its employés "to restore this fence every night," and that this was done "most of the time." The evidence for plaintiff, however, is to the effect that on the morning of September 1, 1916, the gap thus made in the fence was left down, and that through the same plaintiff's cattle escaped and some of them became lost in the swamps near by.

The action is brought under section 4243, Rev. Stat. 1919, the pertinent provisions of which are as follows:

"If any person shall voluntarily throw down or open any doors, bars, gates or fences, and leave the same open or down, other than those that lead into his own enclosure, or shall voluntarily throw down, open or remove any partition fence, without giving six months' written notice to the person owning the adjoining fields, if they are cultivated lands, he shall pay to the party injured the sum of five dollars, and double the amount of damages he shall sustain by reason of such doors, bars, gates and fences having been thrown down or opened, with costs."

The damages, including the expense alleged to have been incurred by plaintiff in searching for the cattle that escaped and the alleged value of the cattle ultimately lost, are laid at $681; and judgment is prayed for double that amount, and for a penalty of $5, under the statute aforesaid. The pleadings need not be specially noticed.

The cause was tried before the court and a jury, resulting in a verdict and judgment for the defendant district, from which plaintiff prosecutes this appeal.

The assignments of error relate to the giving of certain instructions on behalf of the defendant, which, it is said, rendered the instructions conflicting, contradictory, and misleading to the jury.

The instructions, indeed, appear to be conflicting in certain respects; but we are met with the broad proposition asserted by defendant, respondent here, that plaintiff made out no case, and that the court below erred in refusing to peremptorily direct a verdict for the defendant. And, If this contention be sound, then it matters not what instructions were given at the trial.

It appears to be conceded by appellant that the district, possessing the character of a municipal corporation, is not liable in double damages under the statute supr...