Houck v. Little River Drainage Dist.

• Decision Date: 17 September 1938
• Citation: 119 S.W.2d 826,343 Mo. 28
• Parties: Mary H. G. Houck, Appellant, v. Little River Drainage District
• Court: Missouri Supreme Court

119 S.W.2d 826

343 Mo. 28

Mary H. G. Houck, Appellant, v. Little River Drainage District

Supreme Court of Missouri

September 17, 1938

Appeal from Butler Circuit Court; Hon. Robert I. Cope Judge.

Reversed and remanded.

Giboney Houck and Benson C. Hardesty for appellant.

(1) The petition is not rendered insufficient by Section 10768, Revised Statutes 1929 as alleged in the demurrer, but its sufficiency is confirmed by that very section. Secs. 10768 10773, R. S. 1929; Laws 1907, p. 346; Art. 1. Ch. 64, R. S 1929; Laws 1913, pp. 232-267, sec. 30; State ex rel. McWilliams v. Little River Drain. Dist., 269 Mo. 444, 190 S.W. 897; State ex rel. Gagnepain v. Daues, 15 S.W.2d 818, 322 Mo. 376. (2) The petition meets all the requirements of the Missouri Condemnation Code and its sufficiency is further confirmed by both State and Federal constitutional provisions with which said Code harmonizes. Art. II, Ch. 7, Sec. 1347, R. S. 1929; State ex rel. McWilliams v. Little River Drain. Dist., 269 Mo. 457, 190 S.W. 900; State ex rel. Caruthers v. Little River Drain. Dist., 271 Mo. 435, 196 S.W. 1117; Gorman v. Railroad Co., 255 Mo. 483, 164 S.W. 509; Ver Steeg v. Railroad Co., 250 Mo. 61, 156 S.W. 689; Lockwood v. Railroad Co., 122 Mo. 101, 26 S.W. 698, 24 L. R. A. 516, 43 Am. St. Rep. 547; Schopp v. St. Louis, 117 Mo. 131, 22 S.W. 898, 20 L. R. A. 783; Cranley v. Boyd County, 99 S.W.2d 737, 266 Ky. 569; Peeples v. Smith Bros., 65 S.W.2d 777; Harris v. Elliott, 10 Peters, 25; Smith v. Railroad Co., 98 Mo. 24, 11 S.W. 259; Robinson v. Railroad Co., 143 Mo.App. 270, 126 S.W. 994; Morgan County v. Goans, 198 S.W. 69; Eminent Domain, 20 C. J., pp. 689-690, sec. 152. (3) The petition includes its accompanying map and is sufficient on its face and is immune against any objection available under demurrer. Railway v. Fowler, 113 Mo. 459; Cory v. Ry. Co., 100 Mo. 282, 13 S.W. 346; State ex rel. Siegel v. Grimm, 284 S.W. 496, 314 Mo. 242; Fox v. Joplin, 297 S.W. 449; Art. II, Ch. 7, Sec. 1347, R. S. 1929. (4) The conclusion is inevitable that the court (instead of rendering final judgment against plaintiff on the demurrer as it did do) should have overruled the demurrer which necessarily means that the petition for the appointment of commissioners should have been granted. Custer v. Kroeger, 280 S.W. 1037, 313 Mo. 130; St. Joseph Term. Railroad Co. v. Railroad Co., 94 Mo. 541, 6 S.W. 691; sec. 1347, R. S. 1929.

Oliver & Oliver for respondent.

(1) The court correctly refused to appoint commissioners and dismissed the plaintiff's petition. No showing was made that plaintiff sustained any damages because of setting back the levee 300 feet. The woods land located on the north side of district's right of way had previously been condemned and all severance damages compensated for. No showing was made that plaintiff was entitled to damages because of the setting back of the road 300 feet. Secs. 10768, 11014, R. S. 1929; State ex rel. v. Little River Drain. Dist., 269 Mo. 444; State ex rel. v. Little River Drain. Dist., 271 Mo. 429. (2) Plaintiff's claim for damages, if any she has at all, is sought to be bottomed upon severance damage, that is to say, destruction of access to the old Rock Levee road. There can be no damage because there could be no access from plaintiff's wooded lands to the road. Plaintiff cannot bottom a claim for damages upon her own trespass. A plaintiff cannot base a claim for damages upon plaintiff's own tort. Plaintiff could, in the first place, have no access from her woods land to the old road because of physical barriers, namely, a deep ditch 130 feet wide and a levee 18 feet high. In the second place, she could not cross either the ditch or the levee as a matter of law without committing a crime. The statute makes it a crime to fill up, injure, impair or destroy the usefulness of any drain, levee, ditch or other work constructed by a drainage district; "it shall also be unlawful . . . to use any such levee for road purposes by driving or riding any ass, horse, mule or oxen on the top or on the side of any levee at any time. Any person violating the foregoing or any one of the foregoing provisions shall be guilty of a misdemeanor. . . ." Sec. 11014, R. S. 1929; Carroll v. Little River Drain Dist., 208 Mo.App. 537, 237 S.W. 207. (3) The control of the State highways is vested in the State and the counties. There is no showing that either the State or Scott County, where the half-mile stretch of road complained of is located, is making any complaint to the shifting of the road 300 feet to the south and west. (4) The statute expressly authorizes a drainage district "in order to affect the drainage protection and reclamation of the land and other property in the district . . . to construct any and all of said works and improvement (including ditches and levees) across, through or over any public highway. . . ." Sec. 10768, R. S. 1929.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Plaintiff filed petition under Section 1347, Revised Statutes 1929 (Mo. Stat. Ann., sec. 1347, p. 1550), to have damages ascertained for the alleged wrongful taking of her land by defendant. A demurrer to the petition was sustained, the petition dismissed and plaintiff appealed.

Plaintiff alleged that the taking of her land in the manner alleged violates her constitutional rights under Section 21 (taking or damaging private property for public use) and Section 30 (due process clause), Article 2, Constitution of Missouri. Also, it is alleged that plaintiff's rights (due process and equal protection of the law) under the Fourteenth Amendment, Constitution of the United States, have been violated.

It is alleged that defendant is a public corporation organized as a drainage district November 30, 1907, in the Butler County Circuit Court; that plaintiff is the owner of the S 1/2 of the NW 1/4 and the SW 1/4 of Section 30, Township 30, Range 14, Scott County, subject to the easements of the rights of way of the Rock Levee road, the Ramsey Creek Diversion levee, and the Ramsey Creek Diversion channel; that the two last mentioned rights of way parallel the Rock Levee road and are on the east side thereof, and that said two rights of way are used as a part of defendant's drainage plan; that by the execution of defendant's original drainage plan her lands were damaged, and that said damage was paid by defendant; that now in pursuance to an amendment and change of defendant's drainage plan, defendant is moving the Ramsey Creek Diversion levee from the east side of the Rock Levee road, which her lands adjoin and have access to, and is constructing in lieu of the Ramsey Creek Diversion levee, a new levee on the west side of said road; that plaintiff's land does not adjoin the new levee site, and will not have access to said road after construction of the new levee and relocation of the road; "that defendant is constructing said new levee so that same will rest on and occupy said road's right of way for its entire width of 60 feet and its entire length (about one-half mile) through plaintiff's said lands and so as to destroy said road for road purposes and completely sever all connection and access of all of plaintiff's lands with any road whatever;" that her lands lie outside defendant district, and will be damaged by being wholly severed from said road.

In her petition, plaintiff refers to a certain map (of defendant's amended plan) on file in the Butler County Circuit Court, which map shows the locus in quo, and makes the map (copy of which is in the abstract) a part of her petition.

Plaintiff alleges that as a result of the amended plan, being performed and to be performed, her lands have been and will be damaged; that under the amended plan, defendant "is trenching upon the private rights of plaintiff and devoting said public right of way (of the road) to a use so incompatible with said easement for road purposes as to destroy said easement and wholly destroy said road for road purposes for which the same was originally constructed and is now existing across plaintiff's said lands, and that defendant is thereby imposing a new and additional servitude on and wholly appropriating plaintiff's servient estate in her land lying in said road's right of way, such appropriation of and damage to said servient estate in the land lying in said road right of way and such damage to the said remaining lands of plaintiff, all being done by defendant without making any compensation to plaintiff or seeking any judicial proceeding for compensation to plaintiff and for public use, to-wit: The public use of maintaining the works and improvements provided for in its (defendant's) plan for drainage and in order to prevent the lands in said drainage district from being subject to overflow by the flood waters of the Mississippi River; that plaintiff has made a diligent effort to agree with the defendant as to what is proper and reasonable compensation for the plaintiff's said land lying in said roadway that defendant is appropriating and taking, as aforesaid, and for damages to plaintiff's remaining land consisting of over 212 acres in said Section 30, that is by defendant now about to be cut off and severed from said Rock Levee road, as aforesaid, but that plaintiff has been unable to agree with the defendant upon the proper compensation to be paid to plaintiff."

It is further alleged "that defendant has not heretofore attempted to condemn plaintiff's said land lying in said Rock Levee road nor to have plaintiff's said damages to her said remaining land assessed in any judicial proceeding and that this suit is brought for the purpose of having a judicial assessment and award of all such damages from such taking and damaging of plaintiff's said lands."

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