Elsberry Drainage Dist. v. Harris

• Decision Date: 21 December 1915
• Docket Number: No. 18617.,18617.
• Citation: 184 S.W. 89,267 Mo. 139
• Parties: ELSBERRY DRAINAGE DIST. v. HARRIS et al. (two cases).
• Court: Missouri Supreme Court

184 S.W. 89

267 Mo. 139

ELSBERRY DRAINAGE DIST. v. HARRIS et al. (two cases).

No. 18617.

Supreme Court of Missouri. Division No. 1.

December 21, 1915.

Rehearing Denied February 29, 1916.

Appeal from Circuit Court, Lincoln County; E. B. Woolfolk, Judge.

Proceedings by the Elsberry Drainage District against Lottie Patton Harris and others for the extension of the boundaries of the district to include lands of the objectors. From a judgment including certain of the lands, but not all of them, the petitioner and the objectors whose lands were included appeal. Reversed in so far as the judgment includes lands of the appellant objectors, and affirmed as to the exclusion of the lands of the other objectors.

F. J. Duvall, of Clarksville, and Pearson & Pearson, of Louisiana, Mo., for appellants. J. D. Hostetter, of Bowling Green, and Avery, Young, Dudley & Killam, of Troy, for respondents.

BROWN, C.

This is a proceeding begun August 26, 1913, in the Lincoln county circuit court under the act of March 24, 1913, relating to the organization of drainage districts by the circuit courts. It was instituted by the supervisors of the Elsberry drainage district for and in behalf of said district for the purpose of extending the boundaries so as to include lands of objectors who are appellants and respondents here, and to amend the "plan of reclamation" which had been adopted by the district. The petition states that it is necessary and desirable to include these additional lands, all of which are in Pike county, because the supervisors propose to amend the plan for reclamation already adopted so as to completely reclaim the lands in the northern end of the district by means of certain improvements, so that these lands would be greatly improved and benefited, and should be made to bear their just proportion of the burden. The main and controlling feature of these improvements consists of the construction of a levee completely surrounding these lands with other lands in Pike county lately annexed to the district and called in the record the "Annada Annex." The petition states that this levee was to extend five feet above high-water mark of 1858, a flood in which the river attained a height never since equaled. All the lands then included in this annex had been annexed by order of the Lincoln circuit court made August 8, 1912, in a proceeding which was still pending on objection to the assessment of benefits to 1,700 acres of the land owned by one R. C. Jefferson. The petition in that case alleged, as required by the act then in force, that the land proposed to be annexed was "a contiguous body of swamp and overflowed land contiguous to the said Elsberry district," and —

"that it is necessary for the complete protection of the lands now embraced in the said Elsberry drainage district that the lands herein sought to be added to said district be embraced in said district for the purpose of having not only the lands sought to be added to said Elsberry district, but also the lands in said district contained fully reclaimed and protected from the effects of water. And if said extension of the said Elsberry drainage district is made as petitioned for herein, it will greatly increase the value of all of said lands for agricultural purposes, and will largely add to the sanitary condition of the persons owning and residing on said lands."

The objectors who are here as appellants are owners of lands not included in the original Annada Annex. Those who are respondents are the owners of a large tract of land included in the petition for that annex, and which was, upon issue joined, adjudged not to be wet and overflowed land, and was therefore not included.

The act of March 30, 1911, under which the proceeding for the original Annada Annex had been instituted and conducted, provided only for the organization into drainage districts of swamp and overflowed lands, from which class the lands of the objecting respondents were excluded by the order of August 8, 1912. At the next session of the Legislature an amendment was enacted (Acts 1913, p. 233, § 2) by which lands "subject to overflow" was added. This act was approved March 24, 1913, and on the same day Mr. Jefferson entered into a written agreement with Harmon, chief engineer of the district on behalf of the supervisors, to the effect that his objections to the assessment were to be withdrawn on condition that the supervisors adopt a plan agreed upon for complete reclamation of the land in the annex by levee against overflow and a system of drainage shown in "plans on file." It also contained the following paragraph:

"It is further agreed that if any reductions in assessments be made between the supervisors and any parties in the annex, the assessments shall be proportionately reduced on the Jefferson lands in said annex."

In pursuance of this stipulation the objections of Jefferson were dismissed, the present proceeding was instituted to carry it into effect, and Mr. Harmon "found a buyer" for the entire tract, and also for a Patton tract of some 1,100 acres. Using Mr. Harmon's own language:

"Before those sales were made, an agreement was made in this court, or at the time that the Patton sale was made, an agreement was made in this court with those that then owned this land that this should be done, it was a part of that stipulation or settlement with him on the other assessment, and at that time the Patton land was sold at the time and while court proceedings were pending, and the Jefferson land was sold afterwards, and that was agreed with Mr. Jefferson as a part of the settlement in this court of the previous assessments, that the entire area should be reclaimed."

The Elsberry drainage district was organized in the Lincoln county circuit court on March 13, 1911, and included about 25,000 acres of land, all being in Lincoln county, with the exception of a strip a mile or two wide on the north end, which was in Pike county. Its north line ran westerly from a point in the west bank of the Mississippi river corresponding with the center of section 26, township 52, range 2 east, substantially along the present line of Bryant's creek to the Chicago, Burlington & Quincy railroad near the village of Annada. About 2½ miles north of this, Ramsey creek, another stream from the bluffs having a drainage area of about 60 square miles, flows east across the railroad into the Mississippi. It is between these streams that the land annexed, and that proposed in this proceeding to be annexed, is situated. The entire tract contains about 6,500 acres and was, to a great extent, made of deposits from the overflow of Guinn's creek, a stream having a drainage area of about 40 square miles, which ran all over it in an unstable channel until some 20 or 30 years ago, when it was confined to the south side of a levee built by the King's Lake drainage and levee district from the bluffs easterly across the railroad where it joins the present converted channel of Bryant's creek. The village of Annada as well as the adjacent lands to the north had been protected by this old levee, which was adopted as a part of the inclosing levee of the annex.

Mr. Harmon now states in his testimony that the district wants to take in the land of the respondent objectors to get a better, cheaper, and safer place to build the levee and ditch necessary to carry out the Jefferson agreement.

His plan of reclamation of the original district contemplated a pumping plant near Apex, 10 or 12 miles from its north line, and the new scheme involves a concrete culvert 200 feet long, by which the water is expected to be transferred from the inclosed annex, under the bed of Bryant's creek at a depth not stated, and released into the main ditch of the company on the other side, along which it would flow 12 or 13 miles to the contemplated pumping plant, which, together with the main ditch, was to be enlarged to take care of it. He states that one or more of these pumping plants, under private ownership, was already at work in the annex at the time of the trial.

The court refused in this proceeding to include in the district the lands of the respondents J. H. and W. F. Patton, Carson E. Jamison, and W. A. Richards, which had been excluded in the former proceeding, on the ground that upon the facts the previous judgment was conclusive. From this the drainage district has appealed. All the appellants whose lands are annexed to the district by the terms of the judgment appealed from are appealing on the grounds: (1) That the court by its publication, which was the only notice attempted to be given the landowners, acquired no jurisdiction to impose upon such lands the burdens consequent to their annexation to the district; and (2) that the record does not disclose facts sufficient to authorize the annexation of these lands to the drainage district under the terms of the act of 1913, even though the notice was sufficient to confer jurisdiction upon the court to act.

1. While statutes providing for the reclamation of waste lands are, in some respects, highly remedial, they necessarily involve such radical interference with the control of property by the owner, and such a liberal exercise of the taxing power, as to call for the utmost care in their preparation and execution. There is no governmental function in the exercise of which the control which ordinarily pertains to the management and preservation of one's own must be more liberally surrendered in the interest of all. On the other hand, the great increase in values attending the redemption of our swamps from pestilence, and clothing them with fertility, has a tendency to excite the speculative instincts of those who wait upon opportunity to acquire property without adequate investment. In avoiding errors incident to these conditions it is frequently found that we have committed errors even more serious than those we have escaped. In this way it has happened that of late years the...