Rich Hill Drainage Dist. v. Mccormick

• Decision Date: 07 March 1924
• Docket Number: No. 23656.,23656.
• Citation: 260 S.W. 77
• Parties: RICH HELL DRAINAGE DIST. v. McCORMICK et al.
• Court: Missouri Supreme Court

260 S.W. 77

RICH HELL DRAINAGE DIST. v. McCORMICK et al.

No. 23656.

Supreme Court of Missouri, Division No. 1.

March 7, 1924.

Appeal from Circuit Court, Livingston County; Ralph Hughes, Special Judge.

Proceeding by the Rich Hill Drainage District for assessment of damages and benefits to landowners. From a judgment entered on the trial of exceptions filed by Dora C. McCormick and others to the commissioners' report, exceptors appeal. Affirmed.

Frank Hollingsworth, of Boone, for appellants.

Don C. Carter, of Sturgeon, and Arthur Bruton, of Centralia, for respondent.

LINDSAY, C.

The appellants are the owners of land in Livingston county which prior to the time of the particular proceedings here to be considered had been a part of the Rich Hill drainage district. The respondent was organized under the provisions of the act of 1913, concerning the organization of drainage districts by circuit courts. The land of appellants was afterward incorporated within said district through proceedings had to that end. No point is made here as to the regularity of those proceedings. Commissioners were appointed who assessed the damages and benefits to landowners under the plan of reclamation filed in the proceeding, and who assessed benefits against appellants' land, and also assessed the damages sustained by appellants through the taking of a strip of their land for a right of way for a ditch, and the compensation to be paid them for the land so taken for said right of way. The appellants filed their exceptions to the report of the commissioners, and a trial was had by a jury upon said exceptions. From the judgment entered upon said trial this appeal was taken. Nothing is urged here against the correctness of the instructions given by the court, or the rulings upon the admissibility of evidence. The sole contention is that the jury ignored the evidence and instructions, and were actuated by prejudice, passion, and partiality in returning their verdict, and that upon that account alone it should be set aside.

The lands of appellants, comprising 240 acres, lie three-fourths of a mile east and west, by one-half mile north and south. The east 80 acres is described as the west half of the southwest quarter of section 25, and the remaining 160 acres, directly west of it, as the southeast quarter of section 26. The ditch, according to the plan of reclamation, runs from north to south through the center of the 160-acre tract, thereby separating the west 80 acres of appellants' land from their other land. The amount of appellants' land condemned for right of way was 8.4 acres. By a stipulation filed the parties agreed that the jury might make and return a verdict as to the damage accruing to the west 80 acres and as to the middle 80 acres by reason of the construction of a ditch, and waiving the requirement that damage be fixed as to each 40-acre tract.

The jury by its verdict fixed the value of the land taken for right of way at $420, or at $50 per acre, and fixed the injury or damage to the west 80-acre tract (the west half of the southeast quarter of section 26) at $250, and fixed the damage to the middle 80-acre tract (east half of the southeast quarter of section 26) at nothing. The verdict was signed by nine of the jurors. Afterward appellants' exceptions to the commissioners' report were heard, and by the judgment rendered they were charged with benefit assessments upon each of the several 40-acre tracts composing their land. These are set out in the record, but these are not made the subject of contention here, except that appellants suggest that the jury in determining the amount of the damages confusedly or wrongfully struck a balance between damages and benefits, ignoring the instructions of the court that in determining the amount of damages to which the exceptors were entitled the jury should not take into consideration any benefits accruing to the lands of the exceptors on account of the construction and maintenance of the drainage ditch. The case as presented here turns solely upon what is asserted to be an unconscionably inadequate allowance of damages sustained by appellants for the injury done in cutting their land into two parts, and by a ditch of such magnitude that it is urged their west SO acres is made practically inaccessible from the other land.

The ditch of respondent cutting the land of appellants appears to be the main ditch designed to drain the overflow lands adjacent to Medicine creek, a stream which has its rise in Iowa, and has a watershed of about 1,000 square miles. At a time prior to the organization of the respondent a ditch or cut-off had been made which started from Medicine creek at a point some distance north of appellants' land, and thence running southward came again to Medicine creek at a point south of appellants' land. This ditch is spoken of as the "Manning ditch." It divides the west 80 acres of appellants' land into two parts, leaving about 45 acres on the east and 35 acres on the west of the Manning ditch. The Manning ditch had become the main channel of Medicine creek, and by erosion it had reached a width varying from 75 feet to more than 100 feet in places. The strip taken for right of way by respondent is 140 feet wide. The plan of reclamation provides for a ditch 30 feet wide at the top, 15 feet wide at the bottom, with a general depth of 10 feet, but having at the bottom a subditch 4 feet deep.

The testimony of respondent's engineer was that dirt taken out in excavating would make a bank from 6 to 8 feet in height on each side of the ditch; that these banks, called "spoil banks," would have a berm or ledge of 10 feet in width between them and the sides of the ditch; that these spoil banks would be continuous or unbroken in extent across the land of appellants, until and except in time reduced or removed by erosion; and that by erosion...