Inter-River Drainage Dist. v. Ham
| Decision Date | 03 June 1918 |
| Docket Number | No. 20299.,20299. |
| Citation | 204 S.W. 723,275 Mo. 384 |
| Parties | INTER-RIVER DRAINAGE DIST. v. HAM et al |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Butler County; J. P. Foard, Judge.
Action by Elijah Ham and others against the Inter-River Drainage District. From a judgment of the circuit court increasing damages awarded by commissioners appointed to assess benefits and damages to the lands and property in the Inter-River Drainage District, the District appeals. Judgment affirmed.
This is an appeal from the judgment of the circuit court of Butler county increasing the damages awarded by the commissioners appointed by that court to assess benefits and damages to the lands and property in the Inter-River drainage district. The exceptors (respondents), as cotenants, own 118.95 acres in a body bounded on the northeast by the St. Francis river, which river is the eastern boundary of the drainage district. The contemplated levee runs along the southwest side of the river, so as to bisect the lands of exceptors. The right of way for that levee includes 8.1 acres of the tract, leaving 30.95 acres outside of the right of way and between it and the river, and including 79.90 acres of the tract within the protection of the levee.
Exceptions were filed by respondents to the report of the commissioners assessing benefits and damages. A jury increased the net damages from $490 to $605. The district in that trial asked the following instruction, which was refused:
"The court further instructs you that, even though you may find that the lands of exceptors are not now under present conditions flooded, except when the St. Francis river reaches exceptionally high stages, and may further find that after the completion of the works and improvements of the Inter-River drainage district, and the building of the St. Francis river levee through the lands of exceptor, that his said lands lying between said levee and the bank of the St. Francis river will be overflowed by the flood waters of said river more frequently, and to a greater depth, and for longer periods of time than they are now overflowed, still such additional overflows on said part of exceptors' lands do not entitle him to recover damages from the drainage district therefor, and you will not take such facts and conditions into consideration in assessing the damages in this case."
The court instructed the jury that the district was liable for such damages. There was evidence tending to show such increase in the height of the water outside the levee. It is conceded that such question is the only one here involved.
L. R. Thomason, of Poplar Bluff, and Oliver & Oliver, of Cape Girardeau, for appellant. Sheppard & Sheppard, of Poplar Bluff, and Leslie C. Green, of Texarkana, Ark., for respondents.
ROY, C. (after stating the facts as above).
Appellant contends that overflow water from a stream is surfacewater, and that one proprietor of lands has the right to shut such surface water from his land without being liable to another proprietor for the damage thus caused. That rule must be conceded. McCormick v. Railroad, 57 Mo. 433; Benson v. Railroad, 78 Mo. 504; Abbott v. Railroad, 83 Mo. 280, 53 Am. Rep. 581; Goll v. Railroad, 271 Mo. 655, 197 S. W. 244.
But that rule does not help this appellant in the least. It is not the proprietor of one tract of land engaged in the act of shutting the surface water from its tract, and thus keeping it back on the land of these respondents. This appellant does not own any land, nor any right of way for its levee. It is seeking to condemn such right of way over the land of respondents. In order to do that, it must comply with our state Constitution (section 21 of article 2), which says:
"Private property shall not be taken or damaged for public use without just compensation."
In State ex rel. v. Taylor, 224 Mo. 393, loc. cit. 482, 123 S. W. 892, 918, it was said:
"In pursuance to that constitutional mandate, the Legislature duly enacted the drainage laws we...
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Sigler v. Inter-River Drainage District
...360, 194 S.W. 748; Schalk v. Inter-River Drain. Dist., 226 S.W. 227; Tarkio Drain. Dist. v. Richardson, 237 Mo. 49; Inter-River Drain. Dist. v. Ham, 275 Mo. 384; Greenwell v. Willis & Sons, 239 S.W. 583; Bradbury v. Vandalia Dist., 236 Ill. 36. (4) The police power is always subject to the ......
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