Hausgen v. Elsberry Drainage Dist.

• Decision Date: 18 September 1922
• Docket Number: No. 17365.,17365.
• Citation: 245 S.W. 401
• Parties: HAUSGEN v. ELSBERRY DRAINAGE DIST.
• Court: Missouri Court of Appeals

245 S.W. 401

HAUSGEN v. ELSBERRY DRAINAGE DIST.

No. 17365.

St. Louis Court of Appeals. Missouri.

September 18, 1922.

Rehearing Denied October 3, 1922.

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

"Not to be officially published."

Action by Charles W. Hausgen against the Elsberry Drainage District and others. Judgment for defendants on demurrer, and plaintiff appeals. Affirmed.

Sutton & Huston, of Troy, for appellant.

Avery & Killam, of Troy, and Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondents.

ALLEN, P. J.

This is an action against a drainage district and the members of the board of supervisors thereof by the owner of lands lying within the district to recover for damage alleged to have been caused to plaintiff's land by reason of the alleged negligence of the defendants in and about the construction of the district's levees or dams. Demurrers of the defendants to plaintiff's amended petition were sustained. Plaintiff declined to plead further, and from a final judgment entered upon the demurrers plaintiff appeals.

We set out below in full the amended petition, to which these demurrers were sustained, as follows:

"Plaintiff, for amended petition, states that the defendant Elsberry drainage district is. and since the 13th day of April, 1911, has been, a corporation, duly and legally organized and incorporated and existing under and by virtue of the provisions of article 1 of chapter 41 of the Revised Statutes of Missouri of 1909, and the Acts of the Legislature of Missouri, amendatory thereof, and an act of the Legislature of Missouri, approved March 24, 1913, entitled `An act to repeal article 1 (entitled "Organization of Drainage Districts by Circuit Courts") of chapter 41 (entitled "Drains and Levees") of the Revised Statutes of Missouri of 1909, and to repeal an act amending and adding to said article 1, enacted in 1911 and found on pages 205 and 222 of the Laws of Missouri of 1911, and to enact a new act in lieu thereof to be known as article 1 (pertaining to the organization of drainage districts by circuit courts) of said chapter 41, with an emergency clause,' and since said 13th day of April, 1911, the said corporation has proceeded under and exercised the authority granted such corporations by the statutes and acts of the Legislature aforesaid, and that said corporation was and is so organized by proceedings had in the circuit court of Lincoln county, Mo., and embraces within its limits lands situated in the counties of Lincoln and Pike; that the defendants John M. Gibson, James C. Welch, J. F. Miller, and Joseph K. Palmer now are, and were at all the times hereinafter mentioned, members of the board of supervisors of the said Elsberry drainage district; that the defendant John M. Gibson now is, and was at all the times hereinafter mentioned, the president of said board of supervisors; that the defendant James C. Welch now is, and was at all the times hereinafter mentioned, the secretary of said board of supervisors; that the plaintiff now is, and was at all the times hereinafter mentioned, the owner of a tract of land situate in the county of Lincoln and state of Missouri, in surveys 1679 and 1678, which tract of land was and now is incorporated within the boundaries of said Elsberry drainage district, and is designated as lots 2, 3, 4, 5, 3, and 11, survey 1679, and lot 2, survey 1678, on the plat for taxation purposes of said drainage district; that the said tract contains 223.9 acres; that pursuant to the powers and duties devolved upon them by the statutes and laws aforesaid, the board of supervisors of said district proceeded to adopt a plan for drainage and reclamation of the lands within the boundaries of said Elsberry drainage district, and pursuant thereto provided for the erection and building of a dike or dam, designated as a protection levee, along the outer boundaries of said district, and caused to be assessed by and through commissioners appointed by the judge of the said court, and by and through the report of said commissioners duly approved and confirmed by said court, large benefits against the lands of this plaintiff, situated within said district as aforesaid, which said assessments against plaintiff's said lands, so far as they have fallen due, the said plaintiff has fully paid off and discharged; that the plan for reclamation adopted by said board of supervisors provided for the building and erection of an adequate dike or levee along the outer boundaries of said drainage district so as to fully protect the lands within said district, including plaintiff's lands, from overflow from the flood waters of the Mississippi river and other streams and from the waters being or flowing upon the lands outside of the boundaries of said district; and that it became and was the duty of the defendants to properly construct an adequate and sufficient levee or dam along the outer boundaries of said district so as to fully protect the lands within said district, including plaintiff's lands, from overflow by the waters aforesaid; that the plaintiff's lands and the other lands within said district were assessed with benefits and maintenance taxes with the understanding and upon the consideration that a suitable, adequate and sufficient dam or levee would be constructed along the outer boundaries of said district so as to protect the lands within said district, including plaintiff's lands, from overflow by the waters aforesaid; but the plaintiff alleges that the defendants negligently failed to construct a suitable, adequate, and sufficient dam or levee along the outer boundaries of said district so as to protect the plaintiff's lands from overflow by the waters aforesaid, and plaintiff alleges that the defendants so negligently and carelessly constructed the dam or levee on the eastern side of said district and along the north and east sides of plaintiff's lands that the flood waters of the Mississippi river and other streams and other waters flowing upon the lands outside the boundaries of said drainage district percolate and flow through and under the said dam or levee and thence over and upon plaintiff's lands located within said drainage district, and upon which lands the said defendants have levied benefit assessments as aforesaid; that it was necessary to a proper construction of said dam or levee, so as to protect the lands within said district from overflow by the waters of the Mississippi river and other waters flowing upon and through the lands outside of said district, and to prevent said waters from percolating through and under said levee, and thus overflowing the lands within said district, that a muck ditch at least 8 feet wide and 8 feet deep be dug in the earth along the space upon which said levee was to be built, and that the same be filled with earth so as to form a bond or union between said dam or levee and the earth upon which the same was to be built, and that a berm at least 20 feet in width be left along the outer edge of the base of said levee, and that said levee be built and constructed of earth free and clear of stumps, logs, trees, weeds, and other vegetation, and that lie ground where said levee was to be built should be clear of all stumps, logs, trees, weeds, and other vegetation; that it was the duty of the defendants, and the officers, agents, and servants of said corporation, and of the agents and servants of said defendants, to so construct said levee, but that said defendants and their said officers, agents, and servants negligently failed to so construct said levee, and negligently failed to dig or provide any muck ditch under said levee in the earth along the space upon which said levee was built, and negligently failed to leave or provide any berm...