Nishnabotna Drainage Dist. v. Campbell

Citation55 S.W. 276,154 Mo. 151
PartiesNISHNABOTNA DRAINAGE DIST. v. CAMPBELL et al.
Decision Date06 February 1900
CourtUnited States State Supreme Court of Missouri

2. Rev. St. 1889, art. 3, c. 97, as amended by Act April 9, 1895, provides (section 6527) that condemnation proceedings to secure a right of way for drainage ditches may be instituted on giving 15 days' notice, in the manner prescribed by section 6522. Section 6522 provides that the notice shall be by publication in a newspaper published at the county seat. Held, that a notice first published in a newspaper 17 days before the time specified therein for defendants to appear before the court, and weekly thereafter, was sufficient.

3. Rev. St. 1889, art. 3, c. 97, as amended by Act April 9, 1895 (section 6522), requires that objections to a report of drainage commissioners be filed within 30 days after notice of the report. Held, that the fact that defendants in condemnation proceedings made a motion to quash the notice given by the commissioners of intention to commence condemnation proceedings did not excuse them from filing objections to the report of the commissioners within 30 days.

4. Defendants, in proceedings to condemn their lands for the construction of drains, waived their right to have damages assessed by a jury, where they failed to demand one.

5. Under Rev. St. 1889, § 6525, requiring the board of supervisors of a newly-organized drainage district to cause a survey to be made of the district immediately after their election, it was not necessary that a copy of such survey accompany the report of the commissioners appointed to examine the district to be improved, and to decide as to the character and location of the drains, etc.

Appeal from circuit court, Atchison county; C. A. Anthony, Judge.

Action by the Nishnabotna drainage district against Jennie K. Campbell and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This is a condemnation proceeding by plaintiff, a duly-organized board of Atchison county, the object of which is to condemn a right of way over and upon which to construct and maintain a drainage ditch through the lands of defendants located in that county, under the provisions of section 6517-6560, Rev. St. 1889, and amendments thereto by an act of the general assembly of this state entitled "An act to amend article three of chapter ninety-seven of the Revised Statutes 1889 in regard to swamp and overflowed lands," approved April 9, 1895. There was judgment condemning the land as prayed, from which defendants, after an unsuccessful motion for a new trial, appeal.

Hunt & Bailey, for appellants. Lewis & Ramsay, for respondent.

BURGESS, J. (after stating the facts).

No question is raised as to the proper organization of the plaintiff or its purposes. The first question for consideration presented by this appeal is with respect to the sufficiency of the notice of the intended application to the court, or judge in vacation, for the appointment of commissioners to assess damages for the right of way, as to which, by the amendatory act of April, 9, 1895, amending article 3 of chapter 97, supra, it is provided that, when the board of supervisors are unable to agree with the owners of any such property as to the acquisition of such right of way, or if the owners are not residents of the county, or cannot be found, or are minors or persons of unsound mind, or incapable of making a legal contract, the board of supervisors, when other means are not specifically provided, may, on giving 15 days' notice in the same manner as prescribed in section 6522 of said act, specifying the general nature of the proceedings, and the time and place of hearing, present a petition to the circuit court of the county in which the district is organized, or the judge thereof in vacation, asking for the condemnation of the right of way, and the appointment of three disinterested freeholders of such county as commissioners to assess the damages, etc. Section 6522, supra, provides that such notices shall be given by publication in some newspaper published at the county seat of the county in which such district was organized, and, if there be no such newspaper, then by posting not less than six written or printed handbills in different public places in the district. Defendants contend that the notice was insufficient, and the court without jurisdiction by reason thereof, there being no other notice, for several reasons, which we will dispose of in the order presented.

The ground for this contention is that defendants were all residents of the county, and that no provision is made by statute, in proceedings of this character, for the service of notice upon residents of the county whose lands are sought to be condemned by publication in a newspaper.

Proceedings for the purpose of taking the property of a citizen for public use, being in derogation of common law and common right, must be in strict compliance with legislative enactments which authorize them, for in no other way can his property be taken. "The record must affirmatively show that the conditions precedent to the exercise of such extraordinary powers have been fully complied with." Railroad Co. v. Campbell, 62 Mo. 586; Ellis v. Railroad Co., 51 Mo. 200; Cunningham v. Railroad Co., 61 Mo. 33. Under this well-established and just rule, the mandates of the law under which the proceedings were had must have been strictly complied with, in regard to the notice in question, in order to give the court jurisdiction of the parties. There...

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