Max v. Drainage District

Decision Date18 November 1930
Docket NumberNo. 28799.,28799.
CourtMissouri Supreme Court
PartiesDAVID L. MAX, Appellant, v. BARNARD-BOLCKOW DRAINAGE DISTRICT.

Appeal from Andrew Circuit Court. Hon. Guy B. Park, Judge.

AFFIRMED.

Peter C. Breit, Lloyd W. Booher and Warner Woolverton for appellant.

The court erred in sustaining defendant's demurrer to the evidence because: (1) There was sufficient evidence to take the case to the jury. Allen v. Dry Goods Co., 315 Mo. 254, 286 S.W. 16. (2) It was erroneous because in violation of the Constitution of Missouri and the Constitution of the United States. Mo. Constitution, Art. 2, secs. 21, 30; Constitution of the United States, 14 Amendment, sec. 1; State v. McKissick, 225 Mo. 561; State v. Taylor, 224 Mo. 393. (3) It is erroneous because it is in conflict with the decisions of the courts of this State. Bungenstock v. Nishnabotna Drainage District, 163 Mo. 198; Bruntmeyer v. Squaw Creek Drainage District, 144 S.W. 511, 194 S.W. 748; Schalk v. Inter-River Drainage District, 226 S.W. 277; State ex rel. Gagnepain v. Daues, 15 S.W. (2d) 815.

Grove C. Sparks and A.F. Harvey for respondent.

(1) Appellant is not in position to assert any claim based upon Section 21 of Article 2 of the Constitution of Missouri, relating to damages for property taken or damaged for public use: (a) Plaintiff's petition is based on an improper plan adopted by the board of supervisors, and not for injury or damage occasioned for taking private property for public use without compensation. (b) No such claim is made in appellant's motion for new trial. (c) Rights under such constitutional provisions cannot be raised for the first time in this court, but must be raised, and the sections of the Constitution claimed to be violated, pointed out in the trial court. State v. Lofton, 1 S.W. (2d) 830; Burns v. Life Ins. Co., 295 Mo. 680, 247 S.W. 159; State ex rel. Tadlock v. Mooneyhan, 247 S.W. (Mo.) 165; Lavelle v. Life Ins. Co., 231 S.W. (Mo.) 616; Chapman v. Adams, 230 S.W. (Mo.) 80; Bealmer v. Fire Ins. Co., 220 S.W. (Mo.) 954; Republic Rubber Co. v. Adams, 213 S.W. (Mo.) 81; Meredith v. Claycomb, 212 S.W. (Mo.) 863; Miller v. Connor, 250 Mo. 677; Strother v. Railroad, 274 Mo. 272. (2) A drainage district is an agency of the State for governmental purposes, exercising only governmental functions, and as such is not liable for its acts in adopting plans for drainage, even if improper. Anderson v. Inter-River Drainage & Levy District, 309 Mo. 189, 274 S.W. 448; Sigler v. Inter-River Drainage District, 311 Mo. 175, 279 S.W. 50; Sherwood v. Worth County Drainage District, 250 S.W. (Mo.) 605; Swineford v. Franklin County, 73 Mo. 279; Clark v. Adair County, 79 Mo. 536; Pundman v. St. Charles County, 100 Mo. 594; Reed v. Howell County, 125 Mo. 58; Cochran v. Wilson, 229 S.W. (Mo.) 1052; Gibson v. United States, 166 U.S. 269, 41 L. Ed. 969; C.B. & Q. Railroad v. Illinois, 200 U.S. 561, 50 L. Ed. 596. Even municipal corporations are not liable because of defective plans. Ely v. St. Louis, 181 Mo. 30; Ruppenthal v. St. Louis, 190 Mo. 224; Berry v. Sedalia, 212 S.W. 36. (3) Damages, if any, occasioned by the acts complained of in plaintiff's petition do not give a right of action to plaintiff, but are damnum absque injuria, under the police power of the State. State ex rel. v. Christopher, 317 Mo. 1179, 298 S.W. 720; Sigler v. Inter-River Drainage District, 279 S.W. (Mo.) 50; Anderson v. Inter-River Drainage & Levy District, 309 Mo. 189, 274 S.W. 448; St. Louis v. Nash, 260 S.W. (Mo.) 985; Morrison v. Morrey, 146 Mo. 543; Bellerive Investment Co. v. Kansas City (Mo.), 13 S.W. (2d) 628. (a) The State cannot surrender its police power to construct drains and promote the public health, by granting a right to construct a mill dam. Tranbarger v. Railroad, 250 Mo. 46, 238 U.S. 67. Where the public interest preponderates over the private interest preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property. Miller v. Schoene, 276 U.S. 272. (4) The trial court properly gave defendant's instruction in the nature of a demurrer to the evidence, because the plaintiff has no property right in or to the waters of the One Hundred and Two River, or the right to maintain a mill pond and forebay therein under any constitutional provision or law of this State, because: (a) At least since 1825 the waters of a non-navigable stream being the property of the State, mill dams or mill ponds have not been permitted in this State, except in compliance with the provisions of the mill dam statute, Chap. 121, R.S. 1845, now Chap. 67, R.S. 1919. Huffman v. Vaughn, 72 Mo. 465; Scheurich v. Empire Dist. Electric Co., 188 S.W. (Mo.) 114; Scheurich v. Light Co., 109 Mo. App. 406; Cambest v. Hydro Electric Co., 212 Mo. App. 325, 245 S.W. 598. (b) The State having retained the right to say when a mill dam may be constructed in a non-navigable stream, even if the plaintiff was the owner of such right or privilege, the sovereign power of the State that granted it can take it away; it was granted without consideration and does not amount to a contract between Allen and the State. St. Anthony Falls Water Power Co. v. Board of Water Commissioners, 168 U.S. 349; State v. Gilmore, 141 Mo. 513; State ex rel. v. Vandiver, 222 Mo. 223. (c) Plaintiff's petition is not based on any rights as a riparian owner, but is based on an alleged license, granted to Allen in 1845, to maintain his mill dam and forebay in the channel of the river and complains because the same is filled with silt and mud. That the privilege to maintain said dam and forebay in said stream, if ever granted, was revoked in so far as the State and its drainage districts acting in a governmental capacity are concerned, is clearly shown by Secs. 4386, 4402, Art. 1, Chap. 28, R.S. 1919. (d) The constitutional provisions attempted to be invoked by plaintiff, as to the taking of private property for public use and taking property without due process of law, cannot apply to the State through its drainage district, taking what belongs to it and in which the plaintiff has no property right, but merely the privilege to use, revocable at pleasure. Cases above cited.

FERGUSON, C.

This is an action for damages. Plaintiff's petition alleges that he is the owner of certain land in Andrew County. Missouri, through which the One Hundred and Two River flows; that he is the owner of a grist mill situated thereon and operated by water power derived from said river and made available by a dam lawfully erected and maintained across said river; that the defendant drainage district by its plan of reclamation proposed to straighten said river by digging and constructing certain ditches; that "dirt, earth and debris washed out of the ditches," so constructed, and was carried down the river into plaintiff's mill pond and forebay, which thereby became filled with earth and debris, so that the water in the mill pond, forebay and river below the dam has been reduced and diminished, rendering the water power machinery useless for the purposes for which it was constructed, and prays for damages in the sum of $10,000.

Defendant's answer was a general denial; that the reclamation plans were adopted and the ditches constructed and maintained by the drainage district acting in its governmental capacity, and that the dam used to run plaintiff's mill was an unlawful structure. At the conclusion of the testimony offered on the part of the plaintiff the court sustained defendant's motion for a directed verdict and entered judgment for the defendant, from which the plaintiff appeals. The only error assigned is the action of the court in sustaining the plaintiff's demurrer to the evidence. The testimony is that the appellant owned and operated a small "grist" mill near the town of Rosendale in Andrew County, located on the bank of a small non-navigable stream known as the One Hundred and Two River. The said river flows in a southerly direction through a tract of land owned by appellant. The State of Missouri, by patent, conveyed the land to Benjamin Ogle in 1851, and the appellant, by mesne conveyances, derives title from the patentee. In the year 1845 Bethel Allen, as holder of the preemption certificate for said land, applied by petition to the Circuit Court of Andrew County pursuant to the provisions of the statute regulating such proceedings (R.S. Mo. 1845, Chap. 121, page 744) for permission to construct a dam in the One Hundred and Two River within the bounds of said land, said dam to be connected with a saw and grist mill and praying that a writ ad quod damnum be issued. The procedure prescribed by statute having been pursued, the circuit court at its September term, 1845, made the following order:

"Ezekiel W. Smith, Sheriff of Andrew County, returns into court the State's writ of Ad quod Damnum issued out of this court upon the petition of Bethel Allen filed at the last March term thereof, duly executed according to law, and also the report of the jury empannelled to assesses damages herein; and it appearing to the satisfaction of the court from an inspection of said report that the erection of a dam on the 102 River at the point mentioned in said petition to the altitude of ten ft., will injure no proprietor of any land on either side of said stram by reason of the inundation consequent upon the erection of said dam; nor that the mansion house, curtlege or garden thereunto belonging of any proprietor be overflowed thereby: nor that ordinary navigation or fish of passage will be to any injurious extent obstructed by the erection of said dam; nor that the health of the neighborhood will be annoyed thereby. It is therefore considered that the said Bethel Allen be and he is hereby permitted to erect said dam at the point to the height, and for the purposes...

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