Hoskins v. Shelby County

• Decision Date: 14 April 1976
• Docket Number: No. 59246,59246
• Citation: 536 S.W.2d 1
• Parties: Hugh Dale HOSKINS and Dorothy M. Hoskins, Respondents, v. SHELBY COUNTY, Missouri, et al., Appellants, and Valley Drainage District, a corporation, et al., Respondents.
• Court: Missouri Supreme Court

Page 1

536 S.W.2d 1

Hugh Dale HOSKINS and Dorothy M. Hoskins, Respondents, v. SHELBY COUNTY, Missouri, et al., Appellants, and Valley Drainage District, a corporation, et al., Respondents.

No. 59246.

Supreme Court of Missouri, En Banc.

April 14, 1976.

Rehearing Denied May 5, 1976.

Dan Bollow, Bollow, Crist, Bollow & Wallace, Shelbina, for appellants.

Paul Brown and Patrick F. McLaughlin, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for respondents.

MORGAN, Judge.

Shelby County (defendant-appellant) seeks reversal of a judgment which directs it to construct a new bridge across a drainage ditch located in said county. Having transferred the cause from the Court of Appeals on application of the county, we decide the same as on original appeal.

The suit was initiated against the county and the Valley Drainage District by the owners (plaintiffs-respondents) of approximately 723 acres of land situated along the south side of east-west County Road No. 152. The drainage ditch, now commonly referred to as Salt River, runs generally in a northerly and southerly direction (across No. 152) through said land and divides it into two near equal tracts.

Around 1914 a bridge (which, with approaches, was approximately 140 feet long) had been constructed across the new channel, presumably by the district. In 1970 the east approach became impassable and in 1973 the entire bridge 'became so delapidated' that it fell to the bottom of the ditch. Between the latter two dates, plaintiffs had filed this action in two counts. The first sought a declaratory judgment as to which entity should replace the bridge; and, the second requested a mandatory injunction calling for that duty to be performed.

After trial, the court sustained the district's motion for dismissal and entered the judgment from which the county now appeals. It provides, in part:

. . . that the defendant county court and the judges thereof, immediately and without delay, obtain from a competent engineer a determination and estimate of the cost of a sufficient crossing of the ditch, commonly called 'Salt River', at or immediately adjacent to county road 152, said crossing to be sufficient to carry highway traffic including farm machinery of the size, width and weight used in the general area of Shelby County, and immediately thereafter obligate the Road and Bridge Funds of Shelby County, and the credit of Shelby County, if that becomes necessary, and immediately and without delay contract, in accordance with law, for the construction of such crossing and thereafter maintain such crossing in accordance with law.

Prior to considering the reasoning of the trial court, we note those statutory provisions ¹ upon which such rulings were made and the factual setting. They are, in part, as follows:

234.010--Each county court shall determine what bridges shall be built and maintained at the expense of the county . . .

242.350(3)--Any owner of land within or without the district may, at his own expense, and in compliance with the terms and provisions of section 242.010 to 242.690, construct a bridge across any drain, ditch, canal or excavation in or out of said district.

242.350(4)--All drainage districts shall have full authority to construct and maintain any ditch or lateral provided in its plan for reclamation, across any of the public highways of this state, without proceedings for the condemnation of the same, or being liable for damages therefor. Within ten days after a dredge boat or any other excavating machine shall have completed a ditch across any public highway, a bridge adjudged sufficient by the county court of said county or counties shall be constructed over such drainage ditch where the same crosses such highway, and after such bridge has been constructed it shall become a part of the road over which it is constructed and shall be maintained by the authority authorized by law to maintain the road of which it becomes a part. (Emphasis added.)

242.350(5)--When any drainage district has heretofore constructed or shall hereafter construct a bridge over a drainage ditch where the same crosses any public highway, said drainage district shall not be under obligation thereafter to further maintain or reconstruct any such bridge or bridges for more than twenty years after it first constructed or constructs such bridge at said place. If said bridge has been constructed by the drainage district and has become a part of said road and is then destroyed the authorities having control of the road are authorized, if they desire, to reconstruct such bridge, provided, however, the word corporation as used in this section shall not apply to the state or any political or civil subdivision thereof. (Emphasis added.)

Factually, the record reflects that No. 152 is a dirt road. At a point two and one-half miles east of the ditch, it connects with improved Route N; and, at a point three-fourths mile west of the ditch, it connects with improved Route MM. In the latter strip, the dirt road (No. 152) crosses a bridge (with a five-ton load limit) over some part of the original channel of Salt River. Plaintiffs are residents of Illinois and purchased the land in 1959. For some period of time it has been farmed by tenants. It seems agreed that prior to the collapse of the bridge, the county had kept that part of No. 152 (east of the ditch) in 'excellent condition.' Responsibility for that part west of the ditch was that of the Clarence Road District--not a party to this action. In 1967, however, said road district and the county jointly had put a new floor on the bridge with the apparent understanding that the county was responsible for the east one-half and the road district for that to the west. When the east approach started to give way, plaintiffs and some of their farm operators contacted the county court on several occasions. Estimates were made that at that time the east approach could have been repaired for eight to nine thousand dollars; but that it would now cost over sixty thousand to make a 'new' crossing with a 'used' bridge. It seems agreed that the county court did not declare that it would never take care of the problem, but all meetings ended with the court saying the money was not then available. One solution discussed was the giving of the old bridge to plaintiffs that they might make some sort of crossing. The Presiding Judge of the county court testified that when he examined the east approach, he saw that the west abutment also was broken in two or three places; that there had been a lot of flood damage and 'we didn't feel like we could do anything'; that a farmer to the north had dug a ditch on his land that directed 'excessive water right into these approaches to the bridge'; that 'it was a risky bridge in the condition it was before the east approach washed out'; that it was 'used very little'; that 'we felt the money should be spent on a more traveled road . . . where it would do more people good'; and, that 'with the amount of damage we have this year on main and heavily traveled roads, I can't see where we can spend money on a dirt road that is traveled very little.' One tenant testified that the land (both tracts) had been farmed since the bridge fell, but that 'it wasn't the best conditions.' He stated the bridge, before it fell, was too small for most equipment. His words were: '. . . the cultivator wouldn't fit unless you took it off. The planter wouldn't fit across it. One certain type of planter would, but not all planters would. And the combine wouldn't unless you had a real small head and most of ours was bigger * * * and the disk wouldn't and the mulcher wouldn't * * * You could load it and haul it across it though. You could load them on a trailer and go through sideways and they'd fit.' Others agreed as to the 'inconvenience' to plaintiffs, but that 'it (the bridge) never had many come through.' From a financial standpoint, plaintiffs offered testimony that they had one offer to purchase at a fair price from a prospect who backed out when he saw the bridge down; and the county established that it had other bridges down and that each year all revenue, plus some of that anticipated from the next year, was spent for roads and bridges. There are eleven bridges across Salt River in Shelby County and the trial court found that: 'The average distance between crossings is approximately 2.4 miles to 5 miles and with the bridge at the locus out the distance between the nearest bridges up and down river is 6 1/4 miles.'

We turn, again, to the judgment entered by the trial court.

First, it declared that the Valley Drainage District had no duty or liability by virtue of § 242.350(5) (as amended in 1949); because the bridge in question had been constructed more than twenty years before. That finding was correct. Swisher Inv. Co. v. Brimson Drainage Dist., 362 Mo. 869, 245 S.W.2d 75 (1952).

Second, as heretofore noted, the county court was ordered to obligate the 'credit' of the county and immediately construct a bridge 'sufficient to carry highway traffic including farm machinery of the size, width and weight used in the general area.' The ruling was predicated on the following approach to the problem which can be outlined and summarized as follows: (1) Plaintiffs had standing to file the suit by virtue of their suffering a unique and special injury not common to the community in general. New v. South Daviess County Drainage Dist., 240 Mo.App. 807, 220 S.W.2d 79 (1949). (2) The county court abused the discretion granted in § 234.010, supra. (3) The duties of the county court are 'specific and mandatory' under § 242.350(4) as to maintenance of the bridge since it became a 'part of the road . . . and shall be maintained by the authority authorized by law to maintain the road . . .' (4) The county court, having failed that duty, must not only replace the entire bridge but must rebuild the same on a 'larger' scale to accommodate...