North Kansas City Levee District v. Hillside Securities Co.
| Decision Date | 18 July 1916 |
| Citation | 187 S.W. 852,268 Mo. 654 |
| Parties | NORTH KANSAS CITY LEVEE DISTRICT v. HILLSIDE SECURITIES COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. Frank Divilbiss, Judge.
Reversed.
Lathrop Morrow, Fox & Moore, Cyrus Crane and Martin E. Lawson for appellant.
(1) The lands sought to be charged with the tax in controversy were not incorporated within the plaintiff levee district, and hence not subject to this tax. The Hillside Securities Company, the appellant herein (defendant below), was the record owner of the lands in question at the time the proceeding to institute the levee district was begun. It was not made a party to that action and has never been made such a party thereto, nor was it ever served with process. The statute authorizing the formation of levee districts expressly provides and requires that the owners of lands sought to be incorporated in the district, who do not sign the articles of association, shall be made parties to the proceeding and process served upon them so that each may have his day in court to show why his lands should not be embraced within the district. Therefore, the defendant was not bound by the proceeding to incorporate its lands within the district and its lands are not incorporated therein. Art. 7 Chap. 122, R. S. 1899; Art. 9, Chap. 41, R. S. 1909; Sec 8251, R. S. 1899; Sec. 5496, R. S. 1909; Sec. 8252, R. S. 1899; Sec. 5497, R. S. 1909; Sec. 8253, R. S. 1899; Sec. 5499, R. S. 1909; State ex rel. v. Bates, 235 Mo. 286. (2) The doctrine of estoppel has no application under the undisputed facts in this case.
Kenneth McC. DeWeese for respondent.
(1) The corporate existence of the plaintiff cannot be assailed or litigated in this proceeding. Kayser v. Trustees of Bremen, 16 Mo. 88; State ex rel. v. Wilson, 216 Mo. 233. (2) Defendant entered into a contract or agreement August 18, 1910, and received $ 2,650 thereunder and agreed to enter its appearance to the proceedings brought to establish the levee district, and to enter its appearance to the condemnation proceedings therein mentioned. It is now exclusively estopped to assert that plaintiff has no corporate existence. Broadwell v. Merrit, 87 Mo. 95; Ragan v. McEllroy, 98 Mo. 349; Reinhard v. Mining Co., 107 Mo. 616; Bradley v. Reppell, 133 Mo. 553, and authorities cited therein; Land Co. v. Railroad, 161 Mo. 595; Fishing Club v. Hackman, 172 Mo.App. 567; Elliott v. Sullivan, 152 Mo.App. 507; In re Western Bank and Trust Co., 163 F. 713. (3) The Hillside Securities by the agreement of August 18, 1910, and its conduct entered its general appearance to both the proceedings to create and establish the levee district as well as to the condemnation proceedings. State ex rel. v. Wilson, 216 Mo. 285; Baisley v. Baisley, 113 Mo. 544; State ex rel. v. Shelton, 142 S.W. 417; Ice & Fuel Co. v. Van Hooser, 163 Mo.App. 591.
On May 18, 1909, proceedings were commenced by petition in the circuit court of Clay County, Missouri, under the provisions of section 8361, Revised Statutes 1899, to incorporate the levee district aforesaid, as provided in article 7, chapter 122, Revised Statutes 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 the 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 $ 1680.84 for taxes of 1911 and interest thereon, attorneys' 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 $ 2650, the sum so paid by way of license should be credited upon the commissioners' award, and if the latter was less than $ 2650, 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 the 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 $ 2650 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.
I. In the recent case of Elsberry Drainage District v. Harris, 267 Mo. 139, 184 S.W. 89, decided December 21, 1915, by this division, Commissioner Brown, in reviewing the law concerning drainage districts, said:
Section 8362, Revised Statutes 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...
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