In re Mississippi and Fox River Drainage Dist.

• Decision Date: 13 February 1917
• Docket Number: No. 19608.,19608.
• Citation: 192 S.W. 727,270 Mo. 157
• Parties: In re MISSISSIPPI AND FOX RIVER DRAINAGE DIST. BUSCHLING et al. v. ACKLEY et al.
• Court: Missouri Supreme Court

192 S.W. 727

270 Mo. 157

In re MISSISSIPPI AND FOX RIVER DRAINAGE DIST. BUSCHLING et al. v. ACKLEY et al.

No. 19608.

Supreme Court of Missouri. In Banc.

February 13, 1917.

Motion for Rehearing Denied February 24, 1917.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

Proceedings by John Buschling and others for the organization of the Mississippi and Fox River Drainage District, to which John Ackley and others objected. From a judgment of the circuit court incorporating the district, the objectors appeal. Appeal dismissed.

E. R. McKee, of Memphis, and Boyd & McKinley, of Keokuk, Iowa, for appellants. T. L. Montgomery, Charles Hiller, and John M. Dawson, all of Kahoka, for respondents.

WALKER, J.

This is an appeal from a judgment of the circuit court of Clark county incorporating the Mississippi and Fox River drainage district in said county.

The controversy arose out of a misunderstanding between the landowners and petitioners asking for the incorporation. Some contended that they signed the petition under a misapprehension of the facts. Others changed their minds and desired to withdraw their names from the petition and that they be included in an adjoining district, and so informed the court. The remainder were content with the proposed district. All of these facts (the details of which are immaterial) finally led to an order of the court dismissing the cause as to certain objectors, and thereupon the remaining petitioners filed an amended petition asking for the incorporation of the district now in controversy.

The district as described in the amended petition did not meet with the concurrence of all the landowners included and excluded therefrom, and consequently a new attack was made thereon by certain property owners named therein. All of their objections were by the court overruled, and a decree was entered incorporating the last-proposed district. From that action the objecting landowners appealed to this court. Upon the cause reaching this court counsel for respondents filed a motion to dismiss the appeal for the reasons:

First. "That the decree appealed from is not a final decree, judgment, or order of the circuit court of Clark county, Mo."

Second. "That the decree appealed from is not a decree, judgment, or order on which an appeal will lie to this court."

Third. "That no appeal is authorized by law in this cause to this court."

While there are some minor questions presented by the record, they are more of a personal than a legal character. The major proposition involved herein is one of law pure and simple, and that is: Does an appeal, under the statutes of this state, lie from a decree of the circuit court incorporating a drainage district?

Counsel for appellants assert the affirmative; counsel for respondents the negative. Counsel for respondents rely upon section 16, p. 241, Laws 1913, in support of their contention. It should be borne in mind that a drainage district is, by express statute, a municipal corporation, and must be provisionally incorporated as such before any step can be taken looking to the drainage of the land embraced therein. The section mentioned reads as follows:

"Sec. 16. The drainage district or any owner of land or other property in said district, may file exceptions to said report or to any assessment for either benefits or damages, within ten days after the last day of publication of the notice provided for in the preceding section. All exceptions shall be heard by the court and determined in a summary manner so as to carry out liberally the purposes and needs of the district, and if it appears to the satisfaction of the court, after having heard and determined all of said exceptions, that the estimated cost of constructing the improvement contemplated in `the plan for reclamation' is less than the benefits assessed against the land and other property in said district, then the court shall approve and confirm said commissioners' report as so modified and amended. The court shall adjudge and apportion the costs incurred by the exceptions filed and shall condemn any land or other property, within or without the boundary lines of the district, that is shown by the report of the commissioners to be needed for rights of way, holding basins and other works, or that may be needed for material to be used in constructing said works, following, as nearly as possible, the procedure that is now provided for by law for the appropriation of land and other property taken for telegraph, telephone and railroad rights of way. The clerk of said circuit court shall transmit a certified copy of the court decree and copy of the commissioners' report, as confirmed or amended by the court, to the secretary of the board of supervisors of the district, who shall make and transmit a certified copy of the said decree and that part of the said report affecting land in each county to the recorder of each county having lands in the district, or affected by the said report, where the same shall become a permanent record and each such recorder shall receive a fee of one dollar ($1.00) for receiving, filing and preserving the same. Any person may appeal from the judgment of the court, and upon such appeal there may be determined either or both of the following questions: First, whether just compensation has been allowed for property appropriated; and, second, whether proper damages have been allowed for property prejudicially affected by the improvements." (The italics are ours.)

The peculiar wording of the first clause of the italicized portion of the statute should be noted, viz.:

"Any person may appeal from the judgment of the court."

This language is general in its terms, and if it were not limited by what follows, an appeal would bring up all questions involved in the case; but the remainder of the section limits the authority of this court to determine either or both of the questions above italicized.

There is no other statutory provision for an appeal in drainage cases organized under the circuit court article. This is not unusual, because in most, if not in all, cases arising out of municipal legislation the right of appeal is more or less limited; especially is this true regarding an appeal from an act or decree incorporating a municipal corporation. In fact, it would be unusual and strange if an appeal from such a decree should be authorized. If it be true that an appeal lies from a decree incorporating a drainage district, or any other municipal corporation, then the question would naturally arise: Who should or may take it, and when? This and other courts of this country have repeatedly held that the mere fact that a person or his property has been included in a drainage district in no manner affects his rights, provided his property has not been benefited or damaged. Mound City Land & Stock Co. v. Miller, 170 Mo. 240, loc. cit. 256, 70 S. W. 721, 60 L. R. A. 190, 94 Am. St. Rep. 727; Little River Drainage District v. Railroad, 236 Mo. loc. cit. 107, 139 S. W. 330; Ross v. Board of Supervisors 128 Iowa, 427, 104 N. W. 506, 1 L. R. A. (N. S.) 437; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. Ed. 763; Morrison v. Morey, 146 Mo. loc. cit. 563; Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369; C., B. & Q. Ry. Co. v. Drainage Commissioners, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175; State ex rel. v. Board of County Commissioners, 87 Minn. loc. cit. 336, 92 N. W. 216, 60 L. R. A. 161; Irrigation District v. Williams, 76 Cal. loc. cit. 367, 18 Pac. 379.

There is no pretense that the decree of incorporation affects appellants' property rights, directly or indirectly, but, upon the contrary, the act of 1913 before mentioned expressly provides that after the district has been incorporated, that is, tentatively, and not before, a board of directors shall be elected, etc., and they shall appoint commissioners to assess benefits and damages that may be sustained by the property situate in said district on account of said improvements. Sections 5 to 14, Laws 1913, pp. 235-240. Sections 15 and 16 of the same act provide for notice to the property owners of said assessments, and authorize them to file exceptions thereto to be heard by the court in a summary manner, etc., and to render judgment modifying, confirming, or rejecting the report of the commissioners assessing benefits and damages as the evidence may warrant, and from that judgment an appeal may be taken, but the authority of this court is limited, as before shown: First, to an inquiry as to compensation allowed for property taken; and, second, as to the damages allowed for property prejudicially affected by the improvements.

From this it is evident that it is the taking or damaging of the property, and not the incorporation of the district, that affects the owner's rights and gives him the right to an appeal. This identical question came before this court in the case of Drainage District No. 4 v. Railroad Co., 216 Mo. 709, at page 715, 116 S. W. 549, at page 551. Judge Valliant, speaking for the court, said:

"A right of appeal is one given by statute, and in order that a party may avail himself of the right conferred he must conform to the requirements of the enabling statute. The General Assembly might, if it had seen fit to do so, have made the judgment of the county court in such case final and allowed no appeal, in which event the judgment could be attacked only either directly for fraud, or collaterally on the ground that it was void on its face. In this kind of proceeding the statute gives an appeal, but it prescribes the method to be pursued in taking the appeal and limits the questions that may be litigated in the appellate court. The General Assembly has been careful to express the limitations on this right, and also on the scope of the...