City of Hardin v. Norborne Land Drainage Dist. of Carroll County

• Decision Date: 11 September 1950
• Docket Number: No. 41524,No. 2,41524,2
• Parties: CITY OF HARDIN et al. v. NORBORNE LAND DRAINAGE DIST. OF CARROLL COUNTY et al
• Court: Missouri Supreme Court

Page 921

232 S.W.2d 921

360 Mo. 1112

CITY OF HARDIN et al. v. NORBORNE LAND DRAINAGE DIST. OF CARROLL COUNTY et al.

No. 41524.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

Oct. 9, 1950.

Harry A. Hall, Kansas City, Wilson D. Hill, Richmond, for appellants.

W. A. Franken, John Franken, Carrollton, Francis G. Hale, Robert E. Coleberd, Liberty, for respondents.

ELLISON, Presiding Judge.

The plaintiff city of Hardin and a large number of landowners appeal from a judgment of the Ray county circuit court denying their petition to enjoin the defendant-respondent Norborne Land Drainage District of Carroll county, its supervisors and contractor, from constructing and maintaining what we shall call for convenience a 'new' levee of greater height alongside an existing levee in the district. Respondents say it is merely an extension of the original levee. Appellants assert the new levee would block the natural drainage of overflow water and cause it to inundate their publicly and privately owned realty, none of which is in the district, to a depth of five feet, and would damage the same in excess of $1,000,000, without just compensation, in violation of Secs. 10 and 26, art. 1, Const. Mo. 1945.

Appellants further contend: (1) that art. 1, Chap. 79, R.S. 1939, Mo.R.S.A. Secs. 12324-12389A, under which respondent district was reorganized in 1917, require the new levee to be sanctioned by its plan for reclamation; (2) that it is neither sanctioned nor contemplated by that plan; (3) that in 1944 in a proceeding in the Carroll county circuit court the district sought to have its plan for reclamation amended so as to permit the construction of the new levee, and such permission was refused, thereby making the matter res judicata; (4) that the district has no right to dam and collect the flood waters from the Missouri and Crooked rivers by means of the levee, and force them in destructive quantities on appellants' lands; (5) and that injunction is the proper remedy to prevent it.

The respondent district and co-appellants maintain: (1) that they have that right to construct the new levee under the statutes above cited; (2) that the new levee is merely a lateral extension of the existing levee and will be built to protect the land in the district in furtherance of the intent and purpose of the existing plan for reclamation; (3) that the denial by the Carroll county court in 1944 of the respondent district's petition for a change in the plan for reclamation was not res judicata of its right to construct the new levee as a part of the old; (4) that the district has already acquired by condemnation the land upon which the new levee is to be built, that condemnation proceeding being entirely different from the Carroll county drainage district proceedings, in consequence of which there was no adjudication common to both, and no res judicata between the two; (5) that the raising of the elevation of the levee system will not interfere with any natural watercourse; (6) and that the denial of the injunction was proper bacause appellants' lands are outside district and they therefore have no legal interest in the building of the levee.

The facts, stated as briefly as possible, are that the respondent drainage district contains 40,000 acres in the southeast part of Ray county and the southwest part of Carroll county. In 1924 it built, and has since maintained, a levee in accordance with its plan for reclamation, as approved by the circuit court of Carroll county. That levee runs south and east of the city of Hardin, and its elevation is about 2 1/2 feet below that of the city. Hence it did not cause overflow there under the conditions existing in former years. The top of the levee is graveled and used as a public road for about 1 1/4 miles. The new levee involved here parallels and abuts the existing levee. It is admitted that its elevation will be about 5 1/2 feet above that of the old levee. One of appellants' witnesses said it would be 9 feet higher. And it is concededly higher than is provided in the district's plan for reclamation. This additional height could not be superimposed on the existing levee without destroying the graveled road therealong. As shown by appellants' photographs, Exhibits 7, 8 and 9, a part of the new levee had been built before this case was tried.

The sources of the flood water are Crooked river and the Missouri river. The former comes from the northwest and loops around the south side of the city of Hardin, within 1/2 mile thereof at the nearest point. Thence it swings in a southerly direction and discharges into the Missouri river about four miles south of Hardin. There is a rather extensive flood area of low farm land southeast of the city. Three other levee or drainage districts have coverage and levees there. These exclude flood water from the protected parts, but reduce the area of the unprotected part and raise its flood water level. It appears also that a navigation levee has been built along the Missouri rever, having the same effect. In the 1943 flood the respondent district[360 Mo. 1116] and 800 soldiers placed sandbage on the Missouri river levee. In 1946 one of the other levee districts raised its levee, and the next year high water overflowed the respondent district's original levee and submerged 20,000 acres of farm land therein.

The respondent district thereupon, that same year, filed a condemnation suit in the circuit court of Ray county to appropriate strips of land for the new levee. The old levee abuts the boundary line of the district and the new levee is built against the old one. In other words, both levees border on but are just outside the district boundary. This condemnation suit was resisted by two of the servient landowners, who applied to this court for a writ of prohibition, which was denied without opinion.

The district then proceeded with its condemnation suit, paid the damages assessed, took possession of the condemned strips, and resumed construction of the new levee. They were ejected from the land by the landowners, and the district then brought a suit in the circuit court of Ray county to enjoin the landowners from obstructing the construction of the new levee. That court issued its restraining order and the landowners brought prohibition in the Kansas City Court of Appeals. After a hearing on the merits that court quashed its preliminary writ and denied relief. State ex rel. Stratton v. Maughmer, Mo.App., 214 S.W.2d 754. Accordingly, the drainage district resumed construction of the new levee, but the city of Hardin and associated landowners brought the instant suit against the district, its supervisors and contractor, in November, 1948 to enjoin the construction of the levee.

Appellants' basic contentions are that the construction of the new levee is not authorized or contemplated by the respondent district's old 1924 plan for reclamation; that the circuit court drainage act, cited at the beginning of this opinion, specifies the only method of changing the district levee scheme; that the district has not followed that procedure, but is attempting to construct the new levee under the old plan for reclamation: in consequence its action is and will be ultra vires.

In so contending appellants quote the statement found in many decisions of our appellate courts, that the Drainage Act cited at the beginning of this opinion is 'a code within itself'--a fact which no one disputes. They also cite Sec. 12349 thereof, which enumerates the broad powers of the board of supervisors, but says nothing about a change in plan; and Sec. 12367, which specifies the procedure by which the board may petition for a decree of the circuit court authorizing a change in the plan for reclamation, after a hearing of which public notice must be given, and at which the landowners may appear and object. No such proceeding was had here.

But these are not the only sections of the Act applicable to the present controversy. Respondents cite Sec. 12339 which provides that the board of supervisors 'shall have full power and authority to build, construct, excavate and complete all or any works and improvements which may be needed to carry out, maintain and protect 'the plan for reclamation." Likewise, Sec. 12349 [also cited by appellants, supra] authorizes the board to 'concentrate, divert or divide the flow of water in or out of (the) district,' and to construct and maintain main and lateral levees; and to condemn for the use of the district land or property within or without the district.

Still further, Sec. 12350 provides that after the plan for reclamation has been filed in the office of the circuit clerk, and work has progressed thereunder, if it be found that some of the ditches or other improvements called for by the plan are inadequate, and do not afford substantially equal protection to all the land in the district equally taxed, the board on recommendation of the chief engineer may enlarge the inadequate ditches, construct such additional levees as are necessary; and file a description of the added improvements with the secretary of the board and a certified copy with the circuit clerk, whereupon it shall become a part of the plan for reclamation. The section does not require any court action. But the cost of the added works is paid out of benefit assessments.

Sec. 12370 provides that 'To maintain and preserve the ditches, drains, levees or other improvements made pursuant to this article and to strengthen, repair and restore the same, when needed'--(Italics ours)--the district may levy maintenance taxes. And Sec. 12374 provides that when the works set...