Sanders v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 13 February 1906
• Citation: 92 S.W. 736,116 Mo. App. 614
• Parties: SANDERS et al. v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

92 S.W. 736

116 Mo. App. 614

SANDERS et al. v. ST. LOUIS, I. M. & S. RY. CO.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

1. DRAINS—ESTABLISHMENT BY RAILWAYS — PROCEEDINGS TO COMPEL.

Rev. St. 1899, § 1110, authorizing county courts on the petition of 20 landowners to cause ditches or drains to be constructed along the sides of railroads and to maintain an action against the corporation in the name of the county

for all expenses incurred in the construction and maintenance of such ditches or drains, does not authorize the county court to compel the construction of drains by the railroad.

2. APPEAL—MANDAMUS—PROPER MODE OF REVIEW.

No appeal will lie from the county court in proceedings for the establishment of drains along the railroad, its act being ministerial, and not judicial, and the proper remedy on refusal of the court to act is by mandamus.

Appeal from Circuit Court, Ripley County; Samuel Davis, Judge.

Petition by F. M. Sanders and others against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of respondent, the petitioners appeal. Affirmed.

C. D. Yancey, for appellants. Martin L. Clardy, Jas. F. Green, and L. F. Dinning, for respondent.

NORTONI, J.

There are a number of questions presented in the briefs. In the opinion of the court, the right to the relief prayed for is decisive on the record before us and it will be principally noticed. The proceeding was instituted in the county court of Ripley county by 20 petitioners, contiguous landowners along respondent's railway, praying said county court to make an order directing and commanding the respondent railway company to cause to be constructed and maintained suitable ditches and drains on the sides of its railway, etc. The case found its way into, and was dismissed by, the circuit court. The petitioners prosecute this appeal.

The statute upon which they rely is as follows: "It shall be the duty of every corporation, company or person owning or operating any railroad or branch thereof in this state, and of any corporation, company or person constructing any railroad in this state, within three months after the completion of the same through any county in this state, to cause to be constructed and maintained suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains, or water-courses, so as to afford sufficient outlet to drain and carry off the water along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad; and in case such corporation, company or person shall fail or neglect to construct and maintain such ditches or drains within the time limited in this article, the county courts of the counties through which such railroad has been or may be located are hereby authorized and required, upon the petition of twenty landowners of such county along the line of and contiguous to such railroad, to cause such ditches or drains to be constructed and maintained, and such court may maintain an action against such corporation, company or person so failing to construct and maintain such ditches or drains in any court of competent jurisdiction, in the name of such county, and shall be entitled to recover all costs, expenses and damages incurred and accruing in the construction and maintenance of such ditches or drains; and it shall be the duty of every corporation, company or person owning or operating any railroad or branch thereof in this state, to cause all dead or dry vegetation and undergrowth upon the right of way occupied by such railroad company to be cleaned off and burned up or removed twice in each year, for the purpose of preventing the spread of fire,...