Dillen v. Remley, 22931

• Decision Date: 05 October 1959
• Docket Number: No. 22931,22931
• Citation: 327 S.W.2d 931
• Parties: Garth DILLEN, Mary Dillen, Van Dillen and Ella Mae Dillen, Appellants, v. Victor N. REMLEY and Myrl R. Remley, Respondents.
• Court: Missouri Court of Appeals

Page 931

327 S.W.2d 931

Garth DILLEN, Mary Dillen, Van Dillen and Ella Mae Dillen, Appellants, v. Victor N. REMLEY and Myrl R. Remley, Respondents.

No. 22931.

Kansas City Court of Appeals, Missouri.

Oct. 5, 1959.

Robert F. Sevier, William E. Turnage, Liberty, for appellants.

Hale, Coleberd, Kincaid & Waters, Liberty, for respondents.

SPERRY, Commissioner.

Plaintiffs, the owners of certain farm lands described in their petition, sued defendants, who owned farm lands contiguous thereto, seeking an easement over defendants' lands for use in constructing drainage facilities from plaintiffs' property to an existing open drainage ditch. Defendants moved to dismiss plaintiffs petition because of lack of jurisdiction to grant any relief prayed. The following entry appears of record:

'Wherefore, it is considered, ordered and adjudged by the Court that this cause be, and the same hereby is dismissed for lack of jurisdiction, costs taxed against plaintiffs.'

Plaintiffs appealed.

Defendants have filed no brief but have filed a motion to dismiss the appeal. The first reason urged in support of the motion is that plaintiffs' notice of appeal is 'from the order dismissing cause for lack of jurisdiction' which it is, claimed, is not an appealable order under Section 512.020 RSMo 1949, V.A.M.S. They contend, and rightly, that the right of appeal is purely statutory. They say that, while the above section provides for appeal from a final judgment, it does not provide the right of appeal from an 'order dismissing cause.' The record from which this appeal was taken recites, in part, that 'it is considered, ordered and adjudged * * * that this cause be, and the same hereby is dismissed for lack of jurisdiction, * * *.'

The judgment entered, and from which the appeal was taken, is a final appealable judgment. White v. Sievers, 359 Mo. 145, 221 S.W.2d 118, 123; Douglas v. Thompson, Mo., 286 S.W.2d 833, 834. The fact that plaintiffs referred to it as an 'order' is not material, since it was an attempt, in good faith, to appeal from a final judgment. Woods v. Cantrell, 356 Mo. 194, 201 S.W.2d 311, 315.

It is next contended that plaintiffs' sole allegation of error, as stated in their brief under 'Points and Authorities,' does not meet the requirements of Court Rule 1.08, 42 V.A.M.S., because the specific reasons why it is claimed the Court erred in dismissing the cause 'for lack of jurisdiction,' are not stated.

There is but one point presented on this appeal: Whether error was committed in dismissing the cause for lack of jurisdiction. Citations appear thereunder and the argument is addressed to that proposition. This is an equity case. We will not dismiss the appeal for that reason. Reinert Bros. Const. Co. v. Whitmer, Mo.App., 206 S.W. 387; Carr v. Lincoln, Mo., 293 S.W.2d 396, 398; Mason v. Sagehorn, Mo.App., 303 S.W.2d 194, 195.

This brings us to a consideration of the appeal on its merits. Plaintiffs filed their petition in the Circuit Court of Clay County, Missouri. They alleged that the plaintiffs were the owners of certain described land located in Clay County; that their land serves as a collecting point for drainage of water from many acres adjacent thereto; that, pursuant to the provisions of Chapter 244, RSMo 1949, V.A.M.S., they sought to establish private drainage facilities to protect their property, for sanitary or agricultural purposes, by constructing an open ditch through or across a tract of land situated between the described property and an artificial drainage ditch into which the waters from plaintiffs' property can be drained. The petition then described the property belonging to defendants and alleged that the plaintiffs were the owners of an easement across the land but that the ditch on said easement had been filled up; that such ditch would no longer drain plaintiffs' land; that plaintiffs and defendants have been unable to agree as to the best method for drainage or protection of plaintiffs' land, or to agree on the location of a ditch to drain plaintiffs' land; that defendants will not allow plaintiffs to enter on defendants' land for the purpose of deepening the ditch covered by the alleged easement; that they and the defendants have been unable to agree as to the value of the land to be used to construct a ditch or to deepen the existing ditch or as to the amount of damages, if any, that will result from constructing said ditch; that the petition was accompanied by a rough plat of all the land that will in any way be affected by the proposed improvements, indicating the approximate location and the course of the ditch sought; that they tendered to the defendants the sum of $300 which, in the estimation of the plaintiffs, seemed just compensation for the amount of the value of the land to be taken or to be used in constructing the ditch, plus the damages that will accrue to the land and the cost of crossings; that the defendants have failed and refused to accept the tender.

The prayer was that commissioners be appointed, according to the provisions of Chapter 244, RSMo 1949, V.A.M.S., to consider any and all matters not agreed upon by the landowners and to make a report and recommendation for the adjustment of such disagreements.

Defendants filed their objections and plaintiffs amended their petition, by interlineation, to allege that the existing easement is totally inadequate and insufficient to drain plaintiffs' land because it covers a strip of ground six feet wide at the top and three and one half feet wide at the bottom, without specifying any specific depth and that, due to the narrowness of said easement and the fact the ditch has been filled in, plaintiffs' land will not drain; that, without the permission of the defendants, the easement was too narrow and uncertain for plaintiffs to enter in an attempt to clean or deepen the ditch without trespassing on defendants' property and that, in this action, the plaintiffs seek a means of drainage across defendants' land which will be definitely described in a sufficient size to serve the purpose for which it is intended.

Defendants...