Chicago, B. & Q. R. Co. v. Little Tarkio Drainage Dist. No. 1

• Decision Date: 03 July 1911
• Parties: CHICAGO, B. & Q. R. CO. v. LITTLE TARKIO DRAINAGE DIST. NO. 1.
• Court: Missouri Supreme Court

139 S.W. 572

237 Mo. 86

CHICAGO, B. & Q. R. CO. v. LITTLE TARKIO DRAINAGE DIST. NO. 1.

Supreme Court of Missouri.

July 3, 1911.

Motion to Modify Opinion Denied July 15, 1911.

1. REMOVAL OF CAUSES (§ 79) — APPLICATION — TIME.

Where petition to remove a proceeding for the establishment of a drainage district to the federal court was not filed until after commissioners had filed their report, assessing damages and benefits against the various tracts of land within the district, it was too late under the rule requiring the petition to be filed on or before the day on which the moving party is required to appear and plead, which by Rev. St. 1909, § 1799, was on or before the third day of the term of the court to which the proceeding was brought.

2. JURY (§ 19) — EMINENT DOMAIN — DAMAGES.

Where the report of commissioners in proceedings to establish a drainage district, as filed, showed that they found that lands of a railroad company were necessary and were condemned for ditch right of way, and they assessed the railroad company's damages for a bridge at $9,000, and for right of way across the railroad, $250, and for delay in operation of the railroad, $750, the proceedings sufficiently indicated a taking of the railroad's property by eminent domain, entitling the railroad company to a jury trial under Const. art. 12, § 4.

3. EMINENT DOMAIN (§ 145) — TAKING PROPERTY FOR DRAINAGE DISTRICT — DEDUCTION OF BENEFITS.

Where, in proceedings to establish a drainage district, commissioners appointed to assess damages and benefits awarded a railroad company $10,000 for land taken for a bridge, for a right of way across the railroad, and for delay in operating a railroad, and assessed benefits against the railroad company amounting to $16,000, leaving a balance of $6,000 for benefits, it was error to modify the report by striking therefrom the amount allowed for damages, on the theory that that could only be considered in a condemnation proceeding, and after reducing the assessment of benefits to $10,000, confirming the report as made, and thereby establishing the right of way for the ditches across the railroad's property without awarding compensation therefor.

Kennish, J., dissenting.

In Banc. Appeal from Circuit Court, Holt County; Wm. C. Ellison, Judge.

Proceedings by the Little Tarkio Drainage District No. 1 for the assessment of damages and benefits accruing from contemplated drainage ditches. From a judgment modifying a report of commissioners and confirming the same as modified, the Chicago, Burlington & Quincy Railroad Company appeals. Reversed and remanded.

This is an appeal taken by the railroad company in the case of In re Drainage District v. Richardson, 139 S. W. 576. Richardson has appealed the case to this court twice. The opinion written on the first appeal is reported in 227 Mo. 252, 126 S. W. 1021, and the second opinion has just been handed down, not yet officially reported. Reference is here made to that case for the purpose of seeing a full statement of the facts. Counsel for this appellant present not only the questions presented by the Richardson appeal, but three additional, which are peculiar to it. We will not again discuss the questions passed upon in the Richardson Case, but will confine our considerations to the points affecting this appellant alone; and will therefore only state so much of the record as bears upon these questions.

The commissioners appointed by the court to assess the damages and benefits which would result to the landowners, for the land to be taken, or damaged for the use of the district, made their report and filed it with the clerk of the circuit court, and in so far as it is applicable to the questions presented by this appeal, is as follows:

"We herewith submit to the court a schedule list and statement of each and every of the owners of land owning land within said drainage district, with a description of the land owned by each, and the amount of benefits accruing to the same shown thereon, and have also shown the amount of damages assessed to each owner by reason of the condemnation of right of way and other damages accruing thereto separately, deducting from the total benefits the total amount of damages, and have shown in our reports separately the net benefits accruing to each tract of land, returned herewith, marked `Exhibit A,' and made a part thereof.

"We find that the Chicago, Burlington & Quincy Railroad Company has and owns a right of way running through sections 13 and 24, township 62, range 40, and sections 19, 20, and 29, township 62, range 39, Holt county, Missouri, in said drainage district with a railroad roadbed in said railroad right of way.

"In the performance of our duties, and in the assessment of the benefits and damages aforesaid, we took into consideration in connection therewith all other drains, dykes, ditches, or levees heretofore constructed within the boundaries of said drainage district, and we have also examined all streams, water courses, ditches, ponds, lakes, and bayous within the district, which are partly within and partly without said drainage district, and we have also examined all railroad rights of way, culverts, bridges, and grades, and all other railroad property in said drainage district, and we have also inspected and examined all other improvements, highways, and bridges belonging to any county or corporation which may be affected by the proposed drainage and reclamation works and improvements; and we have also prepared a statement of the estimated cost of the works and improvements to be made in said drainage district for the protection and reclamation of the properties above named, situated and being in said drainage district; and we have also assessed all damages which will accrue or may accrue to the county for the taking of any right of way necessary for the construction and completion of said drainage work.

"Our estimate of the cost of the whole work proposed in the plan of drainage aforesaid is as follows:

                Main drainage ditch .... 350,000 cubic yards
                Lateral No. 1 ..........   2,066 cubic yards
                Lateral No. 2 ..........     700 cubic yards
                                        ________
                In all ................. 352,766 cubic yards $31,832 00
                Two bridges across public highways .........   1,500 00
                Levee on west boundary of drainage
                district, 5,720 cubic yards ................     600 00
                Railroad bridge ............................   9,000 00
                Right of way for main drainage ditch
                across railroad ............................     250 00
                Delay in operation to the railroad company .     750 00
                Engineer's salary, first year ..............     100 00
                Engineer's salary, second year .............     600 00
                Attorney's fees first year .................   1,250 00
                Attorney's fees second year ................   1,250 00
                Salary of secretary and treasurer, first
                 and second year ............................    250 00
                Salary secretary and treasurer, 18 years ....    350 00
                Court costs .................................  1,000 00
                Expense of commissioners ....................    150 00
                Organization and other incidental expenses 
                 ............................................  2,500 00
                Cleaning brush and debris out of Big and
                 Little Tarkio in and bordering upon
                 drainage district ..........................  2,500 00
                                                             __________
                                                             $53,882 00
                

"We further report to the court that the following described tracts of land belonging to the parties respectively named were found necessary to be taken and were taken and condemned for right of way for main drainage ditch and laterals aforesaid, to wit: [Then follows a detailed description of the various ditches which were to be dug, which is not here material, except as follows:]

"Chicago, Burlington & Quincy R. R. Company. — A strip 50 feet wide on each side of, parallel to and measured at right angles to the center line of the main ditch as shown on the plan of drainage of said district, across the right of way of said railroad in the northwest quarter of section 29, township 62, range 39.

"Lateral ditch number two. — Commencing at the end of a private ditch at the intersection of the wagon road and the Chicago, Burlington & Quincy Railroad, on the half section line running north and south through section 19, township 62, range 39; thence southeasterly along the north boundary of the railroad right of way to a railroad bridge or culvert; thence southwesterly through said bridge and across the right of way of said railroad; thence in a southerly direction along slough to the Big Tarkio river.

"Landowners and description of land taken belonging to each for the right of way for Lateral Ditch No. 2.

* * * * * * *

"Chicago, Burlington & Quincy Railroad. — A strip of 10 feet wide on each side of, parallel to and measured at right angles to the center line of said lateral ditch, where the same crosses the right of way of the railroad, through said section 19, township 62, range 39.

"So much of `Exhibit A' of commissioners' report as is pertinent to this appeal is in words and figures as follows: Name of Owner. Chicago, Burlington & Quincy Railroad Co. Real estate. A right of way for railroad over strip of northwest corner of section 19, township 62, range...