Hamilton v. Big Medicine Drainage Dist. No. 1

• Decision Date: 05 May 1924
• Docket Number: No. 15015.,15015.
• Citation: 217 Mo. App. 247,261 S.W. 940
• Parties: HAMILTON v. BIG MEDICINE DRAINAGE DIST. NO. 1 (LINDBLOM, Interpleader).
• Court: Missouri Court of Appeals

261 S.W. 940

217 Mo. App. 247

HAMILTON v. BIG MEDICINE DRAINAGE DIST. NO. 1 (LINDBLOM, Interpleader).

No. 15015.

Kansas City Court of Appeals, Missouri.

May 5, 1924.

Appeal from Circuit Court, Sullivan County; J. E. Montgomery, Judge.

Action by John J. Hamilton against the Big Medicine Drainage District No. 1, in which R. A. Lindblom was interpleaded. Judgment for plaintiff, and interpleader appeals. Reversed and remanded, with directions.

D. M. Wilson, of Milan, and C. H. Ewald and Mertsheimer & O'Donnell, all of Kansas City, for appellant.

Calfee & House and A. L. Burns, all of Milan, for respondent.

BLAND, J.

This is an action brought by plaintiff against defendant to recover the amount of damages awarded by a condemnation jury, the damages also being claimed by the interpleader Lindblom. The district filed an answer requesting the court to require the parties and one Stoltzman to interplead, which was done; Stoltzman disclaimed any interest in the fund and a decree was entered adjudging the money to plaintiff. Interpleader Lindblom has appealed.

The facts show that defendant, the Big Medicine Drainage District No. 1 was organized in 1920 and in due time proceeded to lay out, survey, condemn, and appropriate a certain right of way for a drainage ditch across lands owned by plaintiff. The commissioners assessed damages in the sum of $1,212 in favor of plaintiff, which assessment was confirmed by the circuit court while plaintiff was the owner and in possession of the land. Thereafter on April 1, 1922, plaintiff conveyed the property to Stoltzman, who on October 16, 1922, conveyed it to the interpleader Lindblom. These deeds contained no reservation of the damages assessed or awarded in the condemnation proceeding. This suit was brought on June 5, 1923. The money was not paid into court for the benefit of the parties entitled to it until July 24, 1923. During the month of May., 1923, the drainage district entered upon the land for the purpose of constructing a drainage ditch upon and across it. However, prior to the time of the deed by plaintiff to Stoltzman, the district went upon the land and surveyed the route and fixed the location where the drainage ditch was to run.

Interpleader Lindblom claims the fund because he was the owner of the land at the time of the entrance upon it by the drainage district to construct the ditch, at which time it is claimed the actual damage occurred, and the deed conveying the land to him did not reserve the damages assessed. On the other hand, plaintiff claims the fund on the ground that when the assessment of damages was made by the commissioners its approval by the court amounted to a final judgment unappealed and personal to plaintiff.

Section 4405, R. S. 1919, which appears in the drainage act, provides as follows:

"The board of supervisors of drainage districts organized under this article shall not have the right to enter upon or appropriate any land for rights of way, holding basins or other works of the districts until the prices awarded to the owners of such land shall have been paid to such owners or into the hands of the circuit clerks of the courts organizing such districts for the use of such owners; and if the sums awarded be not so paid within five years from the date of filing the commissioners' reports, all proceedings as to the taking of such property for rights of way, holding basins and other works not so paid for shall abate at the cost of said district. Whenever any land is acquired by any district under the provisions of this article and the price of such property has been paid the owner by the district, the title, use, possession and enjoyment of such property shall pass from the owner and be vested in the district, and subject to its use, profit, employment and final disposition. The price awarded for all land acquired by any district for rights of way, holding basins, or other works and the amount of damages assessed by the board of commissioners and confirmed by the court to any tract or parcel of land or other property in the district, shall be paid in cash to the owner thereof or to the clerk of the court for the use of such owner, and that portion of any tract or parcel of land or other property not taken for use of the district shall be assessed for the benefits accruing in accordance with the provisions of previous sections in this article."

Section 4416, R. S. 1919, among other things, provides that the court may change the boundary lines of the district so as to include other lands ; it may amend its former decree of incorporation and the decree confirming the report of the commissioners by correcting the name of the landowner and making other corrections and may amend the plan of reclamation to correct mistakes, etc.

The general rule is stated by Corpus Juris as follows:

"Where land is sold subsequent to the award, but before payment is made or security given by the condemnor, and the conveyance is silent as to the right to damages, such right passes to the purchaser." 20 C. J. 862.

This is a good statement of the law, at least so far as this case is concerned, in view of the provisions of the drainage act. That act contemplates that the judgment confirming the report of the commissioners assessing damages shall not be final for the reason that it provides that the district shall have five years after the filing of the report to determine whether it desires to pay the damages awarded, and section 4416 provides for changing the district plan so as to extend the boundary line, and amending the decree of incorporation. The whole proceeding might have been abandoned and the land of plaintiff not acquired or damaged even after the proceeding had reached the point it had attained at the time of the entry of the judgment confirming the commissioners' report. State ex rel. Harrison v. Hill, 212 Mo. App. 173, 253 S. W. 448. Section 4405, R. S. 1919, also provides that the title, use, possession, and enjoyment of the property, shall not pass from the owner and be vested in the district until the price of such property has been paid the owner by the district, which price shall be paid in cash to the owner or to the clerk of the court for his use. It also provides that the district shall not enter upon or appropriate any land for rights of way, holding basins, or other works of the district until the price awarded to the owners of the land shall have been paid to such owners or is in the hand of the circuit clerk. The Constitution of the state (article 2, § 21) provides that the property shall not be disturbed or the proprietary rights of the owner therein divested until compensation shall be paid to the owner or in court for his use.

It is quite apparent that at the time plaintiff conveyed the property, as well as at the time his grantee conveyed it to the interpleader, the title to or possession of the property had not been disturbed, and, the damages awarded under the pending proceedings not having been reserved by plaintiff or his grantee in their deeds, the interpleader is entitled to such damages. Land & Improvement Co. v. Kansas City, 293 Mo. 674, 239 S. W. 864; Silvester v. City of St. Louis, 164 Mo. 601, 65 S. W. 278; State ex rel. v. Hug, 44 Mo. 116; City of St. Joseph v. Hamilton, 43 Mo. 282 ; Simpson v. Kansas City, 111 Mo. 237, 242, 20 S. W. 38; Kansas City v. R. Co., 189 Mo. 245, 258, 259, 88 S. W. 45 ; Whyte v. City of Kansas, 22 Mo. App. 409 ; Kiebler v. Holmes, 58 Mo. App. 119.

It is not necessary for us to hold whether the right to the damages became fixed at the time the money was paid into court or at the time of the entry by the drainage district upon the land for the purpose of constructing the drainage ditch, for the reason that both of these occurred after the interpleader became the owner. The fact that, during the time that plaintiff was the owner, the drainage district went upon the land and fixed a route for the location of the drainage ditch, did not constitute a taking of the property. Of course, this was before any condemnation proceedings were started, and, if any damages occurred to plaintiff by reason of this entry upon his premises, he could recover the same in a suit brought by him for that purpose, if the entry was unlawfully made without his consent.

It seems to be plaintiff's theory that the judgment confirming the commissioners' report was a final judgment, personal to him and he was entitled to the amount of damages awarded therein regardless of any ether consideration. Such a judgment is not final in the sense that plaintiff insists. Silvester v. St. Louis, supra, loc. cit. 608, 315 S. W. 278, quotes approvingly from Dillon on Municipal Corporations, commenting upon an act permitting the city of Baltimore to procure a...