North Nishnabotna Drainage Dist. v. Morgan

• Decision Date: 04 June 1929
• Docket Number: 25372
• Parties: North Nishnabotna Drainage District v. George H. Morgan, Appellant
• Court: Missouri Supreme Court

18 S.W.2d 438

323 Mo. 1

North Nishnabotna Drainage District v. George H. Morgan, Appellant

No. 25372

Supreme Court of Missouri

June 4, 1929

Appeal from Atchison Circuit Court; Hon. Charles H. Mayer Special Judge.

Reversed and remanded.

Henry B. Hunt for appellant.

(1) The court erred in giving to the jury, of its own motion Instruction 2. (a) The question of benefits accruing to appellant's land by the construction of the ditch and levee, was not an issue in the case. An instruction should be confined to the issues insisted on at the trial. 38 Cyc 1636; State ex rel. Goessling v. Daues, 284 S.W. 464; State ex rel. Life Ins. Co. v. Allen, 313 Mo. 384; Hollinghausen v. Ade, 289 Mo. 362; Barnett v. Smith, 230 S.W. 681; Brown v. Ry. Co., 101 Mo. 484; State ex rel. v. Ellison, 270 Mo. 653; Mansur v. Botts, 80 Mo. 658. (b) Respondent's petition did not warrant the submission of the question of benefits to appellant's land; and the evidence, taken as a whole, did not disclose any special benefits to appellant's land. Bruecker v. St. Louis, 246 S.W. 892. (c) The only benefits recognized by our law as chargeable against the landowner in condemnation proceedings, and to be deducted from the compensation to be paid to him, are the direct and peculiar benefits that would result to him in particular, and not the general benefit that he would derive in common with other landowners from the construction of the improvement. Newby v. Platte County, 25 Mo. 276; Mississippi County v. Byrd, 4 S.W.2d 812; Hook v. Ry., 133 Mo. 320; Bledsoe v. Stallard, 250 Mo. 164. (d) Instruction 2 is erroneous in that it does not require the jury to find direct and peculiar benefits that would result to appellant in particular. Cases (c) supra; St. Louis, etc., Ry. Co. v. Stock Yards, 120 Mo. 554; St. Louis, etc., Ry. Co. v. Knapp-Stout Co., 160 Mo. 412; St. Louis, etc., Ry. Co. v. Stewart, 201 Mo. 491; St. Louis, etc., Ry. Co. v. Mendonsa, 193 Mo. 518. (2) The court erred in refusing to give to the jury Instruction H requested by the appellant. By the provisions of the Act of 1913, it is expressly provided that a drainage district may condemn land for holding basins. Secs. 4390, 4402, R. S. 1919. Respondent did not, in its petition, seek to condemn land for the purpose of constructing a settling or holding basin; it sought to construct, and constructed, a ditch and levee; it had no authority to take appellant's land for a settling or holding basin. (a) Respondent did not have a roving commission to take land for other purposes, when its expressed purpose, under its petition, was to take land only for a ditch and levee. K. C. Interurban Ry. Co. v. Davis, 197 Mo. 676; 20 C. J. 636, sec. 116. (b) It is the duty of the court to submit to the jury, and give instructions thereon, any issue, theory, or defense which the evidence tends to support. 38 Cyc. 1626; Kraft v. McBoyd, 32 Mo.App. 399; Coleman v. Roberts, 1 Mo. 97; Smith v. Southern, 210 Mo.App. 293. (3) The court erred in giving to the jury Instructions 2 and 3 offered by the respondent. Said instructions were conflicting and contradictory. Conflicting or contradictory instructions furnish no correct guide to the jury, and the giving thereof is erroneous. 38 Cyc. 1604; Spillane v. Ry., 111 Mo. 565; Mining Co. v. Casualty Co., 161 Mo.App. 209.

W. C. Ellison and James F. Gore for respondent.

(1) Instruction 2 given by the court of its own motion, was properly given, and correctly declares the law applicable to this case. Kansas City v. Bacon, 147 Mo. 259; Rourke v. Ry. Co., 177 S.W. 1102; St. Louis v. Bridge Co., 198 Mo. 698; Railroad Co. v. Ridge, 57 Mo. 599; Combs v. Smith, 78 Mo. 32; Howell v. Jackson County, 262 Mo. 403; Rives v. Columbia, 80 Mo.App. 173; Railroad Co. v. Brick Co., 198 Mo. 698; Stocker v. Drainage District, 99 Neb. 38, 154 N.W. 862; Railroad Co. v. Blechle, 234 Mo. 471; Ann. Cas. 1912D, 246; Trinity College v. hartford, 32 Conn. 452; Little Miami Railroad Co. v. Collett, 6 Ohio St. 182; Washburn v. Railroad Co., 59 Wis. 364, 18 N.W. 328; Kirkendall v. Omaha, 39 Neb. 1, 57 N.W. 752; Barr v. Omaha, 42 Neb. 341, 61 N.W. 591; 20 C. J. 822; L. R. A. (N. S.) 1918A, 885; 9 L. R. A. (N. S.) 783. (a) It is not necessary in a proceeding under the Eminent Domain Act to plead special benefits. Secs. 4402, 1791, R. S. 1919; Patterson's Forms of Missouri Pleadings, p. 437; Forms of Code Pleading, McQuillan & Campbell, pp. 282-288. (b) Special benefits were an issue in this case. Where private property is taken for public use, the value of the advantages, if any, derived from the establishment of the improvement, not shared by the public, are special benefits and may be deducted from the damages. Daughterty v. Brown, 91 Mo. 26; Bennett v. Hall, 184 Mo. 407; Rourke v. Ry. Co., 177 S.W. 1102; 2 Lewis Em. Dom. sec. 690 et seq.; Stocker v. Drainage District, 99 Neb. 38, 154 N.W. 862. (c) It is for the jury to determine whether the land has been specially benefited. Kansas City v. Bacon, 147 Mo. 259. (2) Respondents' third instruction is correct. City Water Co. v. Hunter, 6 S.W.2d 565; 20 C. J. 729, 730; Prairie Pipe Line Co. v. Shipp, 305 Mo. 663; Railroad Co. v. Cartan Real Estate Co., 204 Mo. 565.

OPINION

White, J.

This was a proceeding instituted in Atchison County to condemn land for a drainage ditch and levee through land of appellant. A commission was appointed to ascertain the damage, the amount awarded was $ 539.50, and the money was paid into court. Morgan filed exceptions to the report of the commissioners, a jury trial was had in the Circuit Court of Atchison County, verdict was rendered awarding him $ 450, and judgment entered ordering the clerk to pay defendant that sum and return the balance, $ 89.50, to the drainage district. Pending these proceedings the ditch and levee were constructed. The defendant appealed from the judgment.

The Nishnabotna River flowed in an elbow bend around the defendant's land, which consisted of 49.63 acres. The river ran east on the north side of the land, and turned sharply to the south and west of south along the east side. The drainage ditch was constructed through this land, changing the course of the stream. The amount taken by the condemnation proceedings was 2.93 acres, which left 17.07 acres east of the ditch, and the balance, about twenty-nine acres, west of the ditch. The appellant claims that the land taken did not correspond to the land condemned; that of the 2.93 taken, 2.26 acres were not on the right of way; but no error is assigned in this appeal on account of that. The complaint is that on account of the ditch the water accumulates at the south end of the ditch and levee, and inundates a large portion of appellant's land lying west of the ditch; that on the seventeen acres lying east of the ditch is a large grove of cottonwood trees; there being no levee on that side, the flood water flows over the land and injures the timber.

Evidence was introduced pro and con as to the effect of changing the course of the river so as to cut defendant's land in two parts. Evidence was introduced on the part of the defendant tending to show that his land was greatly depreciated on both sides of the ditch, and on the part of the drainage district to show that the value of the land was not impaired, but enhanced, by reason of the drainage ditch.

The errors assigned by the appellant relate principally to the instructions to the jury given by the trial court. Also it is claimed that there was no sufficient evidence to authorize some of the instructions, and that the court erred in refusing instructions asked by the appellant.

I. The instructions authorize the finding of benefits to the defendant as offsetting his claim for damages. Appellant first makes the point that such issue is not within the pleading, that the respondent did not claim in its petition that there were such benefits, and cites several decisions as holding that an instruction must not be broader than the pleadings. That subject has been considered in several cases recently. Where a case is tried throughout and evidence is introduced as if an allegation of fact necessary to recovery were properly alleged in the petition, when it was not so alleged, it is not error to instruct the jury upon that issue. [Talbert v. C., R. I. & P. Railroad Co., 321 Mo. 1080, 15 S.W.2d 762, l. c. 764; Stottle v. C., R. I. & P. Railroad Co., 321 Mo. 1190.] Section 1550, Revised Statutes 1919, provides that a judgment shall not be reversed, "ninth, for omitting any allegation or averment without proving which the triers of the issue ought not to have given such a verdict."

II. The instructions of which the appellant complains are the following asked by the plaintiff:

"1. The court instructs the jury that this is a proceeding to recover damages for alleged injuries to plaintiff's land and timber standing thereon caused by the construction and maintenance of the ditch and dike through his land, and also to recover the value of his land taken for the ditch and dike along the west line thereof."

"2. The court instructs the jury that if they believe from the evidence that the dike and water in the ditch across George Morgan's land have caused, or in the future will likely cause, the water to submerge or overflow his land and injure it, or the timber on it, yet the jury should not allow plaintiff any damages for such injury if the jury further find and believe from the evidence that had such ditch not been dug and maintained, the same water, in equal quantity, and to the same extent, would have overflowed and submerged the same land, and that it would have caused substantially the same injury.

"3. The court instructs the jury that for the strip of land 100 feet wide, taken for the dike and ditch through said...