Lemon v. Garden of Eden Drainage District

• Decision Date: 30 July 1925
• Docket Number: 24670
• Citation: 275 S.W. 44,310 Mo. 171
• Parties: GERTRUDE LEMON et al., Appellants, v. GARDEN OF EDEN DRAINAGE DISTRICT et al
• Court: Missouri Supreme Court

275 S.W. 44

310 Mo. 171

GERTRUDE LEMON et al., Appellants, v. GARDEN OF EDEN DRAINAGE DISTRICT et al

No. 24670

Supreme Court of Missouri

July 30, 1925

Appeal from Chariton Circuit Court; Hon. Fred Lamb, Judge.

Affirmed.

Kitt & Marshall for appellants.

(1) The court erred in sustaining the demurrer to plaintiffs' petition. All allegations of substantive facts well pleaded in a petition are to be taken as true on demurrer. Meek v. Hurst, 223 Mo. 696; Donovan v. Boeck, 217 Mo. 83. (2) When private property is taken and damaged for a public use just compensation must be paid therefor, and until same is paid the property shall not be disturbed or the proprietary rights of the owner divested, there must be payment in advance of taking possession. Sec. 21, Art. 2, Mo Constitution; Holmes v. Kansas City, 209 Mo. 530. When none of the property of the citizen is taken and his proprietary rights are not disturbed and the damage to his property is purely consequential, he is not entitled to have his consequential damages paid before the work is done. Clemens v. Ins. Co., 184 Mo. 46; Smith v Sedalia, 244 Mo. 107; McGrew v. Paving Co., 247 Mo. 549. But where a part of the property of the owner is taken for a public use, then the owner is entitled to have his damages for his land actually taken and all damages to the remainder of his property which may accrue by reason of the taking of the part, and the construction of the improvements over the part so taken, paid in advance. McGrew v. Paving Co., 247 Mo. 557; St. Louis v Railway, 272 Mo. 93; Ates v. Wills, 243 S.W. 188; Land Co. v. Kansas City, 239 S.W. 864; Kansas City v. Ward, 134 Mo. 172; Buchanan v. Kansas City, 208 Mo. 274; State v. Hay, 44 Mo. 116. (3) All incidental, consequential and prejudicial damages which flow from the taking of land and the construction, operation and maintenance of the improvements are included in those mentioned in the Constitution. Chapman v. Railway, 240 Mo. 600; McGrew v. Paving Co., 247 Mo. 562; 20 C. J. 642, note 82, also 672; St. Louis v. Brown, 155 Mo. 545; Bridge Co. v. Schaubacher, 57 Mo. 582; 10 R. C. L. pp. 127, 128-167; Van De Vere v. Kansas City, 107 Mo. 83. (4) In condemnation for a right of way for levee the damages to the whole tract or residue is a proper element of damages. Secs. 4390, 4402, R. S. 1919; Levee & Drain. Dist. v. Hicks, 224 S.W. 127; Jones v. Levee District, 183 S.W. 697; Doyle v. Railway, 113 Mo. 280; Brown v. Railway, 130 Mo.App. 205; Drain. Dist. v. Ham, 275 Mo. 384; State ex rel. v. Taylor, 224 Mo. 482; Drain. Dist. v. Richardson, 237 Mo. 79. In condemnation for right of way of drainage district levee, damages to land left between the levee and river is an element to be estimated in such proceedings. Drain. Dist. v. Ham, 275 Mo. 384. (5) When payment of damages is a condition precedent to taking possession of the property the condemning party will be restrained from taking possession of the property until payment is made. Carpenter v. St. Joseph, 263 Mo. 712; Stough v. Ry. Co., 226 S.W. 297; Paddock v. Sommers, 102 Mo. 240; 14 R. C. L. secs. 49, 145; Myers v. Williams, 199 Mo.App. 21; Medley v. Berry, 143 Mo.App. 641; Cory v. Railway, 100 Mo. 282; 20 C. J. 1172; Versteeg v. Railway, 250 Mo. 61; Holmes v. Kansas City, 209 Mo. 573; Spurlock v. Doman, 182 Mo. 242; Provolt v. Railway, 57 Mo. 256; 10 R. C. L. sec. 193, p. 228; Ates v. Wills, 243 S.W. 187. Under the facts alleged in the petition injunction was a matter of strict right, not of equitable discretion. Ates v. Wills, 243 S.W. 188.

F. C. Sasse and S. J. & G. C. Jones for respondents.

(1) The court did not err in sustaining the demurrer to the petition. R. S. 1919, sec. 4392; McCoy v. Board of Directors, 29 L. R. A. (N. S.) 396; Barnes v. Const. Co., 257 Mo. 175; State ex rel. Coleman v. Blair, 245 Mo. 680; Haefgen v. Harness, 47 N.E. 470; Lamb v. Reclamation Dist., 73 Cal. 125. The failure of plaintiffs to file exceptions to the report of the commissioners was a waiver of any further claim to damages. They were concluded by such failure. 19 Cyc. 704. (2) The demurrer was properly sustained by the trial court for the reason that all questions raised by the petition were properly before the circuit court when it decreed the incorporation of the drainage district and could have been properly adjudicated at that time. Therefore the rule res adjudicata applies. R. S. 1919, sec. 4393; Summit v. Realty Co., 208 Mo. 511; Cantwell v. Johnson, 236 Mo. 603; Lynch v. Railroad, 190 Mo.App. 169; Van Sickle v. Drainage District, 186 Mo.App. 563; 29 L. R. A. (N. S.) 396; Lamb v. Reclamation Dist., 73 Cal. 125. (3) Plaintiffs had an opportunity to assert their claim for damages when the report of commissioners was filed and notice of the filing given as required by law. Having failed to contest the commissioner's report they cannot now be heard to complain. R. S. 1919, sec. 4392; 19 Cyc. 704; Van Sickle v. Drainage District, 186 Mo.App. 563; Barnes v. Const. Co., 257 Mo. 175; State ex rel. Coleman v. Blair, 245 Mo. 680. (4) Plaintiffs are not entitled to relief by injunction. They have an adequate remedy at law. Barnes v. Const. Co., 257 Mo. 175; Bruntmeyer v. Squaw Creek Drain. Dist., 196 Mo.App. 360. (5) The petition is a mere collateral attack on the decree and judgment of the circuit court organizing and incorporating the drainage district.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

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 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 I, Chapter 28, Revised Statutes 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 plaintiff's land, leaving eighty-five acres east of said levee and within said drainage district, and leavng 125 acres on the west side of said levee, and 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:

"That defendant drainage district was organized for the purpose of drainage and leveeing certain lands in Chariton County Missouri, in which district part of the lands of plaintiffs aforesaid were attempted to be included.

"Under the plan of reclamation adopted by said district for improving the lands in said district a large levee is provided and ordered constructed to prevent and keep the overflow waters from Grand River and other streams from coming on the lands in said district; a large part of the lands of plaintiffs aforesaid are and will be located and placed outside of said levee and between said levee and Grand River, and under the plan for reclamation as adopted by defendant drainage district the said levee will run north and south through plaintiffs' said lands aforesaid and divide said lands on each side of said levee, placing about eighty-five acres thereof on the inside and east of said levee and within said drainage district, and about 125 acres of plaintiffs' said lands, on which is situated and located the home and other improvements, on the outside and west of said levee and drainage district and between said levee and Grand River, with no means provided for connection between said lands so described.

"That by dividing and separating plaintiffs' lands as aforesaid, by the said proposed levee, plaintiffs' lands will be greatly damaged and depreciated in value; that the commissioners appointed to assess the value of lands to be taken for right of way of said levee and to assess the damages to the lands by reason of putting the plan for reclamation into effect did not consider or determine or find whether such lands of plaintiffs were damaged or not, nor did they allow plaintiffs or their said lands any prejudicial or consequential damages on account of the construction of said levee over and across said lands and the dividing of said lands as aforesaid, although said lands will be, as stated aforesaid, greatly damaged on account of said levee and the putting into operation the said plan for reclamation and the improvements therein, the fact of such damages was not found or determined by them either way; nor did the court in confirming said commissioners' report allow any such damages which will accrue to plaintiffs' said lands as aforesaid, nor did the court in rendering its judgment in confirming said commissioners' report hear any evidence on the question of whether there were any such damages, nor that fact presented to, heard, passed upon or determined by the court on the hearing and determination of such report.

"Plaintiffs say the only damages allowed to plaintiffs and their said lands on account of the constructing of said levee and other improvements in defendant district, was for the land actually taken for the right of way for the said levee, but no prejudicial division or...