In re Birmingham Drainage District v. Chicago, Burlington & Quincy Railroad Company

Decision Date08 April 1918
Citation202 S.W. 404,274 Mo. 140
PartiesIn re BIRMINGHAM DRAINAGE DISTRICT v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY et al., Plaintiffs in Error
CourtMissouri Supreme Court

Error to Clay Circuit Court. -- Hon. Frank P. Divelbiss, Judge.

Writ dismissed.

James L. Minnis, H. J. Nelson, N. S. Brown, Fred S. Hudson, M. G Roberts and H. L. Moore for plaintiffs in error.

(1) Under the undisputed and uncontradicted facts shown in this record, the amounts severally assessed as benefits against each of the railroad companies respectively on account of the construction of the levee are so palpably and grossly excessive and out of all proportion to the decreased cost of maintenance and the increased physical efficiency of the roadbeds that the contributions in cash and the outlay of work and material exacted are, as a matter of law conficatory, arbitrary and constitute a flagrant abuse of the rights of property in contravention of the Fourteenth Amendment to the Federal Constitution and the provisions of the State Constitution. The same general principles of law guiding a court in determining whether damages awarded are excessive, arbitrary or unreasonable, as a matter of law must of necessity be applied to ascertain the excessiveness or the unreasonableness of the amounts of benefits assessed. The courts have uniformly held that the contribution exacted from the owner of realty on account of a public improvement must not exceed the actual benefit received and any assessment in excess of the actual benefit is pro tanto an unconstitutional taking of private property for public use without just compensation. In other words, the sum assessed must be in proportion to the special benefit conferred upon the owner to the property and must be limited to the amount of benefit received. Where damages from overflow to a railroad track, for example, during a period of fifty years did not exceed the sum of $ 750, an assessment of benefits upon such a railroad track in the sum of $ 18,000 in cash and $ 25,000 in outlay of labor and materials is nothing less than a pure case of flagrant confiscation and spoliation. 10 Am. & Eng. Ency. Law (2 Ed.), pp. 254-6, also vol. 25, p 1172; 2 Page & Jones on Taxation by Assessment, sec. 665, p. 1139; vol. 1, sec. 78, p. 131; vol. 1, sec. 86, p. 143; vol. 1, sec. 118, pp. 197, 198, 199 and 200; Theilen v. Board of Supervisors, 160 N.W. 915; Railroad v. Board of Supervisors, 153 N.W. 110; Levee Dist. v. Dunbar, 155 S.W. 96; Realty Co. v. Granite Co., 240 U.S. 58; Drainage Dist. v. Livingston, 110 N.E. 806; Carson v. Sewerage Com. 182 U.S. 403; Moore v. Yonkers, 235 F. 491; Wagner v. Baltimore, 239 U.S. 220; Houck v. Drainage Dist. 239 U.S. 262, 265; White v. Tacoma, 109 F. 32, l. c. 34. (2) Remote, contingent, speculative and uncertain benefits are not regarded in determining the amount of local assessments. Where a railroad track has been in existence for a long period of years and credible proof is available as to the amount of damages caused by the overflow of the river to the track during that period, the amount of future benefits to the track by the erection of a levee along the river may be ascertained with almost mathematical certainty. When such facts as to damages, injury or impairment in the past by overflow are shown by credible evidence, supplemented by Government records with definite certainty, the opinions, theories, speculations, prophesies and assumptions of expert witnesses as to future benefits should be ignored. Unquestionably there are uncertainties where the legislation determines benefits conferred on property by such public improvements as sidewalks, sewers and street pavements by the front foot or other proper rules, but here the determination of benefits in such particular case has been delegated to a court that can and must proceed on evidence and facts, and, as the operation of physical laws in the future may be judged by their effect in the past, future benefits from the construction of a levee can be definitely determined by ascertaining the injury or damage in the past to a railroad track from an overflow which the levee is designed to prevent. Hence, courts need not resort to speculative theories and remote contingencies. 25 Am. & Eng. Ency. Law (2 Ed.), p. 1159; Coal & Coke Co. v. Hartman, 49 C. C. A. 244, 111 F. 96; Drainage District v. Railroad Co., 255 Ill. 398; 1 Sedgwick on Damages (9 Ed.), sec. 170, p. 317. (3) The court erred in refusing to allow the jury to pass upon the benefits to the three railways as well as the damage. Hull v. River Dist., 219 Ill. 454; Joliet v. Drainage Dist., 222 Ill. 441. (4) The court erred in assessing benefits and damages in this case for the construction of a levy because under the drainage statute under which this district was organized and the court was proceeding, the court had no jurisdiction or authority to order the construction of a levy costing $ 350,000 in the absence of any plans or provisions for drainage whatever. Drainage Dist. v. Railway 266 Mo. 60; Drainage Dist. v. Ackley, 192 S.W. 727. (5) Section 3 of article 6 of the Constitution provides that the Supreme Court shall have a general superintending control over all inferior courts and shall have the power to issue writ of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same. Under this provision this court may issue writs of error without legislative restrictions, and a litigant has a constitutional right to such writ and to a full review of his case. St. Louis v. Marchel, 99 Mo. 475; Jim v. State, 3 Mo. 147; Blunt v. Shepard, 1 Mo. 219; Calloway v. State, 1 Mo. 211; English v. Mullanphy, 1 Mo. 780; Tenton v. Dugal, 1 Mo. 761; State v. Thayer, 158 Mo. 36; Lynes v. State of Alabama, 5 Porter (Ala.) 236; Ex Parte Anthony, 5 Ark. 358; Walker v. Dobson, 135 Mo. 20; Densmore v. Manchester 81 A. (N. H.) 533; Railroad v. Railroad, 29 Wash. 491; State ex rel. v. Superior Court, 143 P. 168. (6) When a statute provides for an appeal which is limited in its scope, a citizen may not thereby be deprived of his constitutional and statutory right to a writ of error. Bowers v. Green, 2 Ill. 41; Railway v. Railway, 29 Wash. 491; State ex rel. v. Superior Court, 143 P. 168; Peck v. Hapgood, 51 Mass. 174; Day v. Laflin, 47 Mass. 280; Eppstein v. Holmes, 64 Tex. 560; Smith v. Morrow, 52 P. 1110. (7) Although condemnation proceedings are special statutory proceedings and were unknown to the common law, this court has always held that writs of error lie from final judgments in all such proceedings by virtue of the statute which provides that a writ of error lies from the final judgment or decision of the court of record in all cases. Moberly v. Lotter, 266 Mo. 457; Railway v. Railway, 100 Mo. 425; Railroad v. Fire Brick Co., 85 Mo. 332; Railroad v. Lewright, 113 Mo. 660; Lee v. Railroad, 53 Mo. 178; Drainage Dist. v. Jamison, 176 Mo. 564; State ex rel. v. Englemann, 106 Mo. 634; Railroad v. Lackland, 25 Mo. 526; Railroad v. Chrystal, 25 Mo. 544. (8) The Missouri statute (Sec. 2054, R. S. 1909) provides that writs of error upon any final judgment or decision of a circuit court in all cases are writs of right and shall issue of course. This statute did not adopt the common-law rule, but on the contrary the authority to issue writs of error are greatly extended thereby and the statute now applies to all final decisions or judgments of the circuit court affecting property rights in whatever mode of proceedings they may be made or rendered. It includes equitable as well as common-law actions, statutory as well as common-law proceedings. It applies "in all cases" where final judgments are rendered and is broad enough to include condemnation proceedings in the establishment of drainage district. State ex rel. v. Riley, 203 Mo. 191; State ex rel. v. Bland, 189 Mo. 215; Dryden v. Swinburn, 15 W.Va. 234, 253; Hockemeyer v. Thompson, 150 Ind. 176; State v. Schneider, 47 Mo.App. 669. (9) In Missouri writs of error and appeals are concurrent remedies. One is not dependent on the other. One does not exclude the other. The only limitation is that both cannot be prosecuted at the same time. Writs of error are writs of right under section 2054 and are not affected, limited, or qualified to any extent by the provision of section 2038 or any other section of the statute granting appeals. Chinn v. Davis, 21 Mo.App. 371; Moberly v. Lotter, 266 Mo. 465; Burdick v. Life Assn., 91 Mo.App. 532; Railway v. Railroad, 94 Mo. 542; Railroad v. Fire Brick Co., 85 Mo. 322; Kroeger v. Dash, 82 Mo.App. 332.

Haff, Meservey, German & Michaels, Martin E. Lawson and Beardsley & Beardsley for defendant in error.

(1) If a writ of error does lie in a drainage district proceeding then all persons owning property in the district must be made parties to the writ of error, or it will be dismissed. R. S. 1909, sec. 2058, 2059; State ex rel. Holden v. Gill, 84 Mo. 248; Kansas City v. Woerishoeffer, 249 Mo. 1; Drainage Dist. v. Railroad Co., 266 Mo. 60; Drainage Dist. v. Foard, 268 Mo. 310; Smith v. Moseley, 234 Mo. 486. (2) The action of the trial court with respect to damages and benefits was justified by the evidence and the law. Railway v. Hamilton County, 171 Ia. 741; Levee Dist. v. Dunbar, 107 Ark. 285. (3) It was for the court and not the jury to pass upon the assessment of benefits. Kansas City v. Woerisheoffer, 294 Mo. 23; Railroad v. Pickett, 25 Mo. 539; In re Drainage Dist. v. Richardson, 237 Mo. 49; Cooley on Taxation (3 Ed.), p. 1188; Lewis on Eminent Domain (3 Ed.), secs. 4, 5, 69 and 633. (4) Section 31 of the Act of March 24, 1913, requiring the railways to raise their embankments and bridges at their own expense is constitutional, and such expense is...

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