Norborne Land Drainage Dist. Co. of Carroll County v. Stratton

• Decision Date: 07 April 1924
• Docket Number: No. 15009.,15009.
• Citation: 260 S.W. 509
• Parties: NORBORNE LAND DRAINAGE DIST. CO. OF CARROLL COUNTY v. STRATTON et al.
• Court: Missouri Court of Appeals

260 S.W. 509

NORBORNE LAND DRAINAGE DIST. CO. OF CARROLL COUNTY v. STRATTON et al.

No. 15009.

Kansas City Court of Appeals, Missouri.

April 7, 1924.

Appeal from Circuit Court, Ray County; Ralph Hughes, Judge.

"Not to be officially published."

Action by the Norborne Land Drainage District Company of Carroll County against Daniel W. Stratton and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Cyrus Crane and Jacobs & Henderson, all or Kansas City, for appellants.

S. J. & G. C. Jones, Conkling & Withers, and Franken & Timmons, all of Carrollton, for respondent.

ARNOLD, J.

This action was instituted in the circuit court of Ray county, Mo., to collect special taxes, due and unpaid, assessed by plaintiff against the lands of defendants. The cause was tried to the court without the aid of a jury, and judgment was in plaintiff's favor. Defendants appeal.

The facts were presented to the court in the form of a stipulation, wherein it was agreed: (1) That plaintiff was duly and legally organized under the Circuit Court Drainage Act in the year 1899, and that it was duly reorganized under the Circuit Court Drainage Act of 1913 (Laws 1913, p. 232), with the boundaries as established by the original organization; (2) that after the entry of the decree of reorganization, January 12, 1017, in the circuit court of Carroll county, a board of supervisors for said district was duly and legally elected and qualified, a chief engineer was elected, and a topographical survey made by him; that said engineer's report and findings recommended a plan for reclamation of lands in the said district and adjacent thereto, which report and recommendation were duly adopted by said board and filed with the secretary of the district; that a certified copy of said report was sent by said secretary to the clerk of the circuit court of Carroll county, and thereafter the said board of supervisors filed in said court a petition asking that the boundaries of said district be extended so as to include the lands of defendants; and that, after the tiling of said petition, due and legal notice thereof was given and that defendants filed exceptions to the petition; (4) that the judgment of the court rendered August 12, 1918, extending the boundaries, is as follows:

"The court finds that all of the land contained within the above boundary line is situated in Carroll and Ray counties, Mo., and is a contiguous body of swamp, wet or overflowed land or land subject to overflow, and that all of the lands contained within the above-described boundary line are contiguous and will be benefited by the construction of the improvements provided for in said plan for reclamation, and that all of the lands and property contained within said boundary line not included within the original boundaries of said Norborne Land Drainage District Company are of such a character and are so situated that unless they were included within the boundaries of said Norborne. Land Drainage District Company of Carroll County, Mo., they would share in the benefits of the work provided for by said plan for reclamation without contributing to the cost of the same, and that it would be inequitable to allow said lands and property to derive the benefits from the construction of the improvements provided for in said plan for reclamation without contributing to the cost of the same. It is therefore adjudged and decreed that the above-described line be or constitute the extended boundary line of the Norborne Land Drainage District Company of Carroll County, Mo., and that all of the lands and property within the above-described boundary line be and constitute the Norborne Land Drainage District Company of Carroll County, Mo."

It was further stipulated and agreed: (5) That, following said decree, commissioners were duly appointed as provided by the act of 1913, the land was viewed by them, and a report rendered and filed with the clerk of the circuit court of Carroll county, which said report shows that benefits were assessed against the lands of defendants by reason of the execution of the plan for reclamation, in amounts set out in the petition filed herein; that due and legal notice of the filing of said report was given by the clerk of the circuit court; and (G) that thereafter, and Within the time provided by law, exceptions to `said report were duly filed by defendants; (7) that thereafter the said circuit court rendered a decree amending and confirming said report which included the lands of defendants under controversy, with benefits adjudged and confirmed against the same, as follows:

"The court further finds that all of the lands, included within the boundary line of said Norborne land drainage district as heretofore extended by this court, constitute and are a contiguous body of swamp, wet, and overflowed lands, and lands subject to overflow, and that the owners of a majority of the acreage of the land within said extended boundary line were at the time of said extensions in favor of the extension of said boundary line as the same has been extended by this court, and that said owners of a majority of the acreage of the land within said extended boundary lines were and are in favor of the execution and carrying out of the plan for reclamation herein; and the court further finds that the owners of a majority of the acreage of the real estate and other property within the boundary line of said district as the same have been extended by this court, and the owners of the real estate and other property whose names are subscribed to the articles of association of said district, are and were at all times willing to and do oblige themselves to pay the tax or taxes which may be assessed against their respective land and other property to pay the expense of organizing and of making and maintaining the improvements that may be necessary to effect the reclamation of said lands and other properly within said drainage district, and to drain and to protect said land within the boundary line of said district as the same has been extended by this court from the effect of water."

Further it was stipulated: (8) That said decree found that the benefits assessed and confirmed against the lands within the extended boundary lines of the district would exceed the costs of the improvements provided in the plan for reclamation; (9) that the board of supervisors and the secretary of the board took all steps, passed all necessary resolutions, and did all other acts and things necessary to the sale of bonds of the district, and sold and delivered said bonds in the sum of $515,090, and levied a tax on the lands of the district, including the lands of defendants to pay for the same, defendants reserving the right to question the power and authority of the supervisors to tax them under the decree of the court extending the boundaries. And it was further stipulated (10) that if the board of supervisors had the power and authority, under said decrees, to levy a tax on the lands of defendants, then the annual tax involved in this suit was a valid lien upon the lands of defendants.

After the stipulation, as above outlined, had been presented to the court, defendants offered proof by qualified witnesses:

"That the lands of all of the defendants, which were not within the limits of the original district, are neither swamp nor overflow lands as those terms are used in the statutes of Missouri prior to the laws of 1913, but that all of the lands of defendants except as above stated are lands which fall under the designation of lands subject to overflow, without admitting that they fall even in that category, but does offer to prove that if they could be in any way affected at all, they must be affected under the last designation; that is, lands subject to overflow."

Objection was made to this offer on the ground that such evidence would tend to contradict the decree of the circuit court of Carroll county extending the boundaries of said...