Sibbett v. Steele

• Decision Date: 09 February 1912
• Citation: 240 Mo. 85,144 S.W. 439
• Parties: SIBBETT et al. v. STEELE et al.
• Court: Missouri Supreme Court

144 S.W. 439

240 Mo. 85

SIBBETT et al. v. STEELE et al.

Supreme Court of Missouri.

February 9, 1912.

1. DRAINS (§ 15)—ESTABLISHMENT OF DISTRICTS —STATUTES.

The right to incorporate a drainage district, under Rev. St. 1909, §§ 5496-5541, is not limited to lands not within an existing drainage district, and the existence of a drainage district, created to maintain a levee against overflow from a river, does not prevent the creation of a new district embracing the same territory, though additional powers, given by section 5575, may be exercised by the existing district after further order of the county court, since no collision of interests or authority may be apprehended.

2. DRAINS (§ 14)—CREATION OF DISTRICT— "OWNER."

The "owners" entitled to institute proceedings, under Rev. St. 1909, §§ 5496-5541, for the organization of drainage districts by circuit courts, and elect commissioners, and otherwise act, are the title owners of the land, and mortgagees are not necessary signers.

For other definitions, see Words and Phrases, vol. 6, pp. 5134-5151; vol. 8, p. 7744.]

3. DRAINS (§ 14)—CREATION OF DISTRICTS— PARTIES—JURISDICTION OF COURT.

Where the articles of association for the organization of a drainage district by the circuit court, under Rev. St. 1909, §§ 5496-5541, were signed by some persons on behalf of others who were owners of land in the proposed district, and such owners appeared by attorney throughout the proceedings, and did not object, they were in court and bound by the judgment creating the district.

4. DRAINS (§ 14)—CREATION OF DRAINAGE DISTRICT—FINDINGS.

A finding of the circuit court in proceedings for the establishment of a drainage district, under Rev. St. 1909, §§ 5496-5541, supported by substantial testimony on the issues whether lands of objectors will be benefited and whether they are properly included within the district, will not be disturbed on appeal.

In Banc. Appeal from Circuit Court, Lincoln County; B. H. Dyer, Judge.

Proceeding by A. C. Sibbett and others against Luther Steele and others for the establishment of a drainage district. From a judgment establishing a district, defendants Robert E. Black and others appeal. Affirmed.

This proceeding in the circuit court of Lincoln county is under article 1, c. 41, R. S. 1909, to incorporate a drainage district. The territory comprising the proposed drainage district is all that part of the Mississippi bottom lying between the river and Prairie slough on the east, and the bluff or hill land on the west, and from a point in Pike county, two miles north of the county line, south through township 51, range 2 east, and to the south line of survey 1724, in township 50, range 2 east, in Lincoln county. It is about 3½ miles wide from east to west, and 11 or 12 miles long from north to south.

King's Lake Drainage and Levee District was incorporated by order of the county court of Lincoln county in 1904, under the act of 1893, now article 3, c. 41, Revised Statutes of 1909, and covers all of the territory of the proposed drainage district except a small portion of the south end. Commissioners appointed by the county court under the King's Lake Drainage and Levee District incorporation are now, and have been since 1905, in charge and control of the territory of that district for the purpose of that incorporation. In the order of the county court incorporating the King's Lake Drainage and Levee District, the scope and plan of the work then proposed was limited to the rebuilding and extending of the old levee.

This appeal is by certain objecting landowners to the order of the circuit court declaring and decreeing said drainage district a public corporation of the state, under and by the name "Elsberry Drainage District." The proceeding was commenced on August 23, 1910, the final judgment from which this appeal is taken having been entered on April 13, 1911. No exceptions to the rulings of the court on the admission or exclusion of evidence were preserved in the appellants' motion for new trial, nor were any declarations of law asked or given. The following objections are preserved in the bill of exceptions, and urged here: "First. Because the proposed drainage district cannot be established over the same territory covered by the King's Lake Drainage and Levee District. Second. That the court did not have jurisdiction, because a majority in interest of the landowners did not sign the petition. Third. Because all interested and necessary parties have not been made parties nor entered their appearance. Fourth. Because the lands of the objectors should not have been included in the district."

Chas. Martin and R. H. Norton, for appellants. F. L. Schofield and Avery, Young, Dudley & Killam, for respondents.

FERRISS, J. (after stating the facts as above).

1. The King's Lake Drainage and Levee District was organized to construct a levee to protect the lands in the district from the Mississippi river. This is conceded in respondents' brief. The record shows the following: "Petitioners read part of the commissioners' report in the King's Lake Drainage and Levee District showing the plan and scope of the work as follows: The plan and scope of the work proposed is as follows: First. To rebuild, strengthen, and raise the old levee 18 inches above the high-water mark of 1903 along the route on which it is situated, and...