In re Mingo Drainage Dist.

• Decision Date: 01 March 1916
• Citation: 183 S.W. 611,267 Mo. 268
• Parties: IN RE MINGO DRAINAGE DISTRICT. v. B. F. WILSON et al., Appellants In the Matter of the Articles of Association and Petition of GEORGE S. DEAN et al. for the Incorporation of MINGO DRAINAGE DISTRICT
• Court: Missouri Supreme Court

183 S.W. 611

267 Mo. 268

IN RE MINGO DRAINAGE DISTRICT.

In the Matter of the Articles of Association and Petition of GEORGE S. DEAN et al. for the Incorporation of MINGO DRAINAGE DISTRICT v. B. F. WILSON et al., Appellants

Supreme Court of Missouri

March 1, 1916

Appeal from Stoddard Circuit Court. -- Hon. W. S. C. Walker, Judge.

Affirmed.

Brown Pradt & Genrich and V. V. Ing for appellants.

No persons but those who are owners of swamp, wet or overflowed lands or lands subject to overflow are qualified signers and petitioners in a proceeding to organize and incorporate a drainage district. Laws 1913, p. 233, sec. 2. The acreage majority must be swamp, wet or overflowed lands or lands subject to overflow, and such land must lie in a contiguous body. Laws 1913, p. 233, sec. 2. Owners of real estate in the sense in which the term "owners" is used in the act under which this proceeding is prosecuted, are the owners of the freehold estate as appears by the deed record. Laws 1913 p. 253, sec. 39. A freehold estate in lands is an estate vested and cannot be established by oral statements of witnesses. Turner v. Williams, 76 Mo. 617. The deed record is the best evidence of the ownership of the lands in the drainage district. Laws 1913, sec. 39, p. 253. Where the best evidence is available it must be used. Secs. 2818, 2819 R. S. 1909. The second best evidence (a copy of the conveyance or a copy of the record) is not admissible unless such copy is under the oath of some person knowing the requisite facts, or the certificate of the recorder under his official seal. Sec. 2819, R. S. 1909. All of the testimony of witnesses as to what they say they found relative to the ownership of the lands in the drainage district, and their opinions relative thereto, by examination of the abstract books of Weber Abstract, Land & Loan Company concerning lands in Stoddard County, was improperly admitted, because the abstract books themselves could not have been admitted in evidence (if they had been offered, which was not done) because there was no evidence whatever as to the correctness of the abstract books by persons who knew. Einstein v. Land & Lumber Co., 118 Mo.App. 184. In the second place, it was improper for the court to admit as evidence of ownership the oral testimony of witnesses as to what they understood the deed records and indexes of deed records to show, concerning the question as to who were the owners of the lands in the drainage district. The question of ownership is a question of law, for the court to pass on, and not to be decided by the testimony of witnesses. Brown v. Railway Co., 101 Mo. 484; Land Co. v. Thompson, 157 Mo. 647; Whittlesey v. Kellogg, 28 Mo. 404; Milan v. Pemberton, 12 Mo. 598. The custodian of the record, in this case, the recorder of deeds, is the only person who may testify as to what the records in his office show or do not show, and this rule applies in all cases where the ownership of real estate is involved. Sec. 2819, R. S. 1909. Even records other than the records of the conveyances of real estate are subject to the rule that no person except the custodian thereof may give oral testimony of its contents. Blodgett v. Schaffer, 94 Mo. 652; Martin v. Brand, 182 Mo. 116. The best evidence available to the party offering evidence must be offered. Montgomery v. Dormer, 181 Mo. 5. The deed records of Stoddard County were all in the office of the recorder of that county at the time of the trial, and no offer of any of these records as evidence in this case was made.

Wammack & Welborn and J. F. Meador for respondents.

The court might very well require some showing by the petitioners as to the ownership of the land -- a sufficient showing to induce the court to see that it is not being imposed upon, but in the absence of any showing whatever on behalf of the objectors (and there is no such showing in this case) the objectors would have no right to demand anything more than the showing made by the articles themselves and would not be in a position to question the character of evidence by which such showing was made. Birmingham Drainage District v. Railroad, 178 S.W. 897; Little River Drainage District v. Railroad, 236 Mo. 94.

FARIS J. Walker, J., absent.

OPINION

In Banc.

FARIS, J.

-- This is an appeal from a proceeding in the circuit court of Stoddard County for the incorporation of a drainage district under the provisions of the Act of March 24, 1913. [Laws 1913, p. 232 et seq.] Upon a hearing on the question of entering a pro forma decree of incorporation and from a judgment decreeing incorporation, appellants here, who are some of the objectors below, have appealed.

The questions which are involved turn upon the objections filed by appellants and others who were not signers of the proposed articles of incorporation. Except for the alleged errors in the admission of evidence upon the hearing of the case and which are specifically set forth in the opinion, a full understanding of the points of contention may be had from the objections filed by appellants. These objections, caption, merely formal parts and the names of the objectors other than these appellants, omitted, are as follows, so far as they are pertinent:

"Now come B. F. Wilson, C. S. Gilbert, L. A. Pradt, Neal Brown [and eighteen other named persons] and state that they are the owners of the lands and real estate which it is alleged that they own in the articles of association, made and executed by George S. Dean, Robert H. Bailey, Timothy T Beach and others asking and praying that the lands and other property therein described be organized and incorporated as a drainage district to be named Mingo Drainage District, and filed in the office of the clerk of this court in vacation of the court.

"These objectors, B. F. Wilson, C. S. Gilbert, L. A. Pradt, Neal Brown [and eighteen other named persons] further state that they did not sign the articles of association herein.

"The said B. F. Wilson, C. S. Gilbert, L. A. Pradt, Neal Brown [and eighteen other named persons] come now into court here for the purpose of objecting, most respectfully to the incorporation of the said proposed Mingo Drainage District under the said articles of association filed in this court, and do object most earnestly and sincerely to the organization and incorporation of said Mingo Drainage District for the following reasons, to-wit:

"1st. For the reason that the drainage and reclamation of the lands and other property in said proposed district from the effects of water, which is contemplated if said Mingo Drainage District be organized and incorporated, is not practical or feasible, even if the same be possible.

"2nd. For the reason that the effects of the water upon the lands and other property within the said proposed district are not so injurious as to justify imposing the burdens and costs and expenses upon the owners of the lands and property in the district for the purpose of draining the said lands.

"3rd. For the reason that the drainage of the said lands is impracticable for want or lack of sufficient fall or slope in the land to carry off the water that accumulates thereon by rainfall and natural flowage.

"4th. For the reason that there is not sufficient outlet or channel or other body of water into which the water may be drained off the lands in the proposed district, nor any way of draining it off without throwing it onto other lands of great value, thereby entailing great damage to such other lands and placing heavy burdens of taxation on the lands in the said district to pay the same.

"5th. For the reason that there are many acres of lands in said proposed district that would not in any way be benefited by the drainage of the swamp and overflowed lands therein.

"6th. For the reason that there are many acres of lands in said proposed district that are not swamp, nor overflowed land, nor subject to overflow by water.

"7th. For the reason that the burden of taxation upon the lands in the proposed district would, necessarily, be so great that the making of the improvements contemplated, and draining the lands in the district would be out of reason and proportion to the benefits that would result therefrom to the property in said drainage district.

"8th. For the reason that there are now in process of drainage and reclamation about 5,000,000 [sic] acres of swamp, wet and overflowed lands and lands subject to overflow in the Little River Drainage District immediately north and east of the proposed Mingo Drainage District, which project, if practicable and consummated, will reclaim and throw upon the market, no doubt, many thousands of acres of land and open up to use many thousands of acres of land, if the project of drainage is practicable and feasible, which will render the present drainage and reclamation of the lands in the proposed Mingo Drainage District impracticable, for the reason that there will be no demand nor necessity for the reclamation of said lands at the present time and for several years; and, if said lands in said Little River Drainage District be not reclaimed and made useful for agricultural purposes and other purposes, then that fact will demonstrate the impracticability of the reclamation of the swamp, wet and overflowed lands in the proposed Mingo Drainage District, hence it is best and most judicious to await the result of the efforts at the reclamation of the lands in the Little River Drainage District before proceeding to the organization and incorporation of the proposed Mingo Drainage District, which, if organized and incorporated, will entail large and burdensome expenses and costs on the owners of the property in said district, even if it should be demonstrated later that the project is impracticable.

"9th. For...