Lemon v. Garden of Eden Drainage Dist.
Citation | 275 S.W. 44 |
Decision Date | 30 July 1925 |
Docket Number | No. 24670.,24670. |
Parties | LEMON et at. v. GARDEN OF EDEN DRAINAGE DlST. OF CHARITON COUTY et al. |
Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Chariton Comity; Fred Lamb, Judge.
Suit by Gertrude Lemon and others against the Garden of Eden Drainage District of Chariton County and others. Judgment for defendants, and plaintiffs appeal. Affirmed.
Kitt & Marshall, of Chillicothe, for appellants.
F. C. Sasse, of Brunswick, and S. J. & G. C. Jones, of Carrollton, for respondents.
A general demurrer was sustained to the petition of plaintiffs, who sought to enjoin the defendant drainage district and its supervisors and the contractor from constructing a levee, which, pursuant to the plan of drainage adopted, would bisect plaintiffs' lands, leaving part thereof between such levee and Grand river, and a part on the opposite side of the levee from the Grand river.
The petition alleged that the defendant drainage district is a drainage corporation, incorporated by decree of the circuit court of Chariton county under provisions of article 1, c. 28, It. S. 1919; that part of the lands of plaintiffs were attempted to be included in said district; alleges ownership by plaintiffs of 210 acres of land; that the levee to be constructed will run north and south upon the east side of Grand river, and will divide plaintiffs' land, leaving 85 acres east of said levee and within said drainage district, and leaving 125 acres on the west side of said levee and outside of said drainage district—that is, between said levee and said river—that plaintiffs' home and improvements are located on said 125 acres, and that no means are provided under the plan adopted for connection between said lands so to be divided.
However, in setting forth the facts charged, those just indicated and those as to the proceedings had by the circuit court and by the commissioners in the assessment of damages, we use the language of the petition, which upon that subject runs as follows:
After alleging that defendant McWilliams Dredging Company under its contract with the defendant drainage district is preparing to enter upon plaintiffs' land to construct the levee, the petition continued:
Plaintiffs have brought the case here upon appeal on the theory that, under the Constitution (section 21, article 2), damages resultant from the taking of their land for a public use must be ascertained and paid before their proprietary rights in the land are divested or can be disturbed; that there are consequential damages incident to the taking and construction of the levee which have not been assessed or paid to them; that therefore, title has not passed, and that payment of all damages being a condition precedent to divesting the plaintiffs' right in the lands, and to the right of the district to take possession, the district, as the condemning party, may be restrained from taking possession until such damages are determined and paid. There is no allegation that the damages which were allowed have not been paid in for the use of plaintiffs.
Where no part of the property of the landowner is taken for a proposed public use, and his property rights...
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