North Kansas City Levee Dist. v. Hillside Securities Co.

Decision Date02 June 1916
Docket NumberNo. 17836.,17836.
PartiesNORTH KANSAS CITY LEVEE DIST. v. HILLSIDE SECURITIES CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.

Action by the North Kansas City Levee District against the Hillside Securities Company. From a judgment for plaintiff, defendant appeals. Reversed.

On May 18, 1909, proceedings were commenced by petition in the circuit court of Clay county, Mo., under the provisions of section 8361, R. S. 1899, to incorporate the levee district aforesaid, as provided in article 7, c. 122, R. S. 1899 of Missouri; and the same was incorporated under the name of "North Kansas City Levee District." The defendant is also a corporation, duly organized under the laws of this state, and owns the land mentioned in petition, lying within the boundaries of said levee district, and sought to be charged with the payment of the taxes sued for herein.

The present action was commenced in the circuit court aforesaid on October 17, 1912, to recover $1,680.84 for taxes of 1911 and interest thereon, attorney's fees, etc. Appellant did not sign the articles of association for the formation of said levee district, nor was it named as a party to said proceeding, although the tract of land sought to be charged with above tax was described as lying within said district.

The decree of the circuit court aforesaid incorporating plaintiff as a levee district was rendered on November 29, 1909. Up to said last-mentioned date the defendant had not been made a party to said proceeding, nor has it since said date been made a party thereto. No summons was ever issued in said proceedings against this defendant, nor did it enter its appearance. The defendant's name does not appear in the articles of association aforesaid, nor in the decree of said court establishing said district.

In August, 1910, plaintiff commenced negotiations with defendant to secure a right of way for a dike across defendant's property and for a ditch extending southeasterly from the easterly end of the dike. A form of deed for this right of way proposed by plaintiff was submitted to defendant, and the latter refused to grant this right of way, but offered to give plaintiff a license to enter upon said property and construct the dikes and ditches in the manner described in the proposed right of way deed, for the sum of $2,650. Plaintiff agreed to proceed with said work under said license. Accordingly a written agreement was entered into between plaintiff and defendant, wherein it was stipulated that defendant should enter a voluntary appearance in the proceedings for the formation of the levee district, which had already been had, and that the levee district should institute condemnation proceedings at once to acquire the rights of way for the dikes and ditches, and in that manner liquidate the defendant's claim for damages on account of its property taken and accruing to the remainder of the tracts owned by defendant. The agreement also provided that, if the damages allowed by the commissioners exceeded the sum of $2,650, the sum so paid by way of license should be credited upon the commissioners' award, and, if the latter was less than $2,650, the defendant should refund the difference. It was also expressly stipulated that, if the condemnation proceeding was not begun within six months from August 18, 1910, and thereafter prosecuted to a conclusion, the defendant should have the right to return the sum which it had received as compensation for the license, and the license itself should terminate.

Following the license agreement supra, plaintiff entered upon defendant's land, built its dike, and constructed its ditches, but neither made, nor attempted to make, defendant a party to the proceeding for the formation of the levee district, so that defendant could enter its appearance, in accordance with said agreement, and have its day in court, with the privilege of showing that its land ought not, and could not, properly be included within said district; nor did plaintiff institute a condemnation proceeding to acquire the limited rights of way, as it was required to do by the terms of foregoing agreement.

In September, 1910, the commissioners allowed defendant $2,750, but this amount was deemed unsatisfactory, and an appeal was taken by this defendant to the circuit court of Clay county aforesaid, and exceptions to said award duly filed, etc.

In 1912 the appeal of the Hillside Securities Company from the award of the commissioners came on for trial in the circuit court of Clay county, and the Hillside Securities Company and its attorneys then for the first time became aware that no condemnation suit had been brought as agreed in the contract of August 18, 1910, and that the award from which an appeal had been taken was made by the commissioners appointed in a former condemnation proceeding; that the Hillside Securities Company had never been made a party to this proceeding in any way, and that the right of way condemned by the commissioners, as shown by their report, was a different right of way from that described in the petition in condemnation, under which they were acting. When these facts developed the levee district dismissed the condemnation suit. The defendant herein then tendered back to plaintiff the said sum of $2,650 received as aforesaid, and terminated the license in accordance with the provisions of the contract of August 18, 1910.

It is contended by defendant that none of its lands should be included within said levee district; that the whole project is a detriment, and not a benefit, to its lands; that its lands have never been legally incorporated within said district; that it has never had the opportunity, which the statute provides should be given landowners, to show that its lands should not be incorporated within the district. Notwithstanding the foregoing, plaintiff has treated defendant's lands as within said district, and has been sustained in so doing by the judgment of the trial court herein.

Defendant filed its motion for a new trial in due time, which was overruled, and the cause duly appealed to this court.

Martin E. Lawson, of Liberty, and Cyrus Crane and Lathrop, Morrow, Fox & Moore, all of Kansas City, for appellant. Kenneth McC. De Weese, of Kansas City, for respondent.

RAILEY, C. (after stating the facts as above).

I. In the recent case of Elsberry Drainage District v. Lottie Patton Harris et al., 184 S. W. 89, decided December 21, 1915, by this division, Commissioner Brown, in reviewing the law concerning drainage districts, said:

"It is evident that, when their extraordinary powers are used in summary proceedings to place a pecuniary burden upon the property of individuals, all the conditions precedent which they prescribe should and must be complied with. Nishnabotna Drainage District v. Campbell, 154 Mo. 151, 157 . This principle is clearly recognized by the Legislature, in charging these powers and duties upon constitutional courts of general jurisdiction, which can only proceed upon inquiry, and condemn after an opportunity to be heard."

Section 8362, R. S. 1899, provides that after the filing of articles of association for the incorporation of levee districts the same proceedings shall be taken to notify owners of real estate embraced within such district who have not signed such articles of association, and all objections of such owners shall be made to, and heard by, the court in the manner provided by sections 8252, 8253, R. S. 1899, for the notifying,...

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