Sigler v. Inter-River Drainage District

• Citation: 279 S.W. 50,311 Mo. 175
• Decision Date: 22 December 1925
• Docket Number: 25582
• Parties: NOBLE SIGLER et al. v. INTER-RIVER DRAINAGE DISTRICT, Appellant
• Court: United States State Supreme Court of Missouri

279 S.W. 50

311 Mo. 175

NOBLE SIGLER et al. v. INTER-RIVER DRAINAGE DISTRICT, Appellant

No. 25582

Supreme Court of Missouri

December 22, 1925

Transferred from Springfield Court of Appeals.

Judgment of Circuit Court reversed.

W N. Barron and Oliver & Oliver for appellant.

(1) It is conceded that Black River overflows its banks, and that defendant district built its levee on the east side of the river to protect the lands within the district from the overflow water escaping from Black River. Such water is surface water. Goll v. Railroad, 271 Mo. 668; Drain Dist. v. Ham, 275 Mo. 388; Adair Drain Dist. v. Railroad, 280 Mo. 253; Abbott v Railroad, 83 Mo. 280; Wells v. Payne, 235 S.W. 488, par. 3; Vanlandingham v. Railroad, 206 S.W. 399; Brown v. Railroad, 248 S.W. 15. (2) The common-law doctrine as to surface water obtains in the State of Missouri. Surface water is to be treated as a common enemy, and the lower proprietor may rightfully protect his property therefrom by any means available. Adair Dr. Dist. v. Railroad, 280 Mo. 252; Goll v. Railroad, 271 Mo. 668; Int. Riv. Drain. Dist. v. Ham, 275 Mo. 388; Abbott v. Railroad, 83 Mo. 283; Thompson v. Railroad, 137 Mo.App. 69; Thoele v. Planing Mill Co., 165 Mo.App. 717; Johnson v. Leazenby, 202 Mo.App. 232. (3) Palmer-Caney Slough does not constitute a watercourse. They have no source of supply except Black River, and then only when it is in flood stage. Water does not usually flow therein. Caney Slough has no continuous bed nor banks. Growing timber fills its so-called channel. When Caney has water in it from Black River the whole area is one broad sheet of water extending for miles and the so-called Caney Slough is utterly undefined. It is not a watercourse either in law or fact. McCormick v. Railroad, 57 Mo. 437; Munkres v. Railroad, 72 Mo. 516; Benson v. Railroad, 78 Mo. 504; Hoyt v. City of Hudson, 27 Wis. 661; Hoester v. Hemsath, 16 Mo.App. 485; Adair Drain. Dist. v. Railroad, 280 Mo. 252; Goll v. Railroad, 271 Mo. 668. (4) In order to constitute an actionable wrong two factors must concur; first, a wrongful act; second, injury resulting therefrom. Rex v. Commissioners, 8 Barn & C. 362; 1 C. J. 937, notes; Lamb v. Reclamation Dist., 73 Cal. 125; Bruner v. Martin, 76 Kan. 862. The building upon the bank of a river by defendant of a levee upon its own land to protect itself against overflow water escaping from such river is lawful in itself. There was no invasion of a right possessed by plaintiff. Hence no wrong or actionable act has been committed. Abbott v. Railroad, 83 Mo. 283; McCormick v. Railroad, 57 Mo. 433; Thompson v. Railroad, 137 Mo.App. 69; Goll v. Railroad, 271 Mo. 668; Mehonray v. Foster, 132 Mo.App. 231; Railroad v. Schneider, 30 Mo.App. 623; Adair Drain. Dist. v. Railroad, 280 Mo. 252; Inter-River District v. Ham, 275 Mo. 384. (5) The levee was built in the usual and ordinary manner by a State agency. It did not unnecessarily injure plaintiff. There is neither allegation nor proof that it was built otherwise. The sole complaint is that it increased the height of the overflow on plaintiffs' property. Such injury is consequential and is damnum absque injuria. Inter-River Drain. Dist. v. Ham, 275 Mo. 389; Goll v. Railroad, 271 Mo. 655; Adair Drain. Dist. v. Railroad, 280 Mo. 252; Jackson v. United States, 230 U.S. 1; Hughes v. United States, 230 U.S. 24; Cubbins v. Miss. River Comm. 241 U.S. 351, 204 F. 303; Tenn. v. Directors, St. Francois Levee Dist., 249 U.S. 588; McCoy v. Plum Bayou Levee Dist., 95 Ark. 354; Gray v. Reclamation Dist., 163 P. 1031; St. Louis-S. W. Railroad v. Miller Levee Dist., 207 F. 338; Lamb v. Reclamation Dist., 73 Cal. 125; Board of Levee Commrs, v. Harkleroads, 62 Miss. 807; Board of Des Moines, 62 Iowa 326; Taylor v. Fikes, 64 Ind. 167; Edwards v. Railroad, 39 S.C. 472; Smeltzer v. Borough of Ford City, 246 Pa. 560; McDaniels v. Cummings, 83 Cal. 515; Abbott v. Railroad, 83 Mo. 271; Schneider v. Mo. Pac. Ry. Co., 29 Mo.App. 68; City Oil Works v. Imp. Dist., 232 S.W. 28; Gray v. Schriber, 58 Mo.App. 177; Applegate v. Franklin, 109 Mo.App. 302; Johnson v. Railroad, 111 Mo.App. 378; Beauchamp v. Taylor, 132 Mo.App. 95; Mehonray v. Foster, 132 Mo.App. 229; Hoester v. Memsath, 16 Mo.App. 489. (6) The levee is upon land within the district owned by appellant and the property of plaintiffs is upwards of a mile distant. Injury to plaintiff's property that may have resulted from the construction of the levee does not amount to a taking of or damage to property for public use, within the meaning of Section 21 of Article II of the State Constitution. There can be no recovery for consequential damages inflicted upon the public unless the plaintiff has sustained special and peculiar damages affecting his property not suffered in common with all others who own property similarly situated. Such damages as are suffered in common are not included within the constitutional limitation. All parties owning land between the levee and river were similarly affected in kind, but varying in degree, according to the elevation of their land. The Constitution will not be construed to give a cause of action against a corporation for the doing of an act which, if done by an individual, would be nonactionable. Rude v. St. Louis, 93 Mo. 408; Fairchild v. St. Louis, 97 Mo. 85; Conman v. St. Louis, 97 Mo. 92; Van De Vere v. Kansas City, 107 Mo. 83; Glasgow v. St. Louis, 107 Mo. 204. (7) It must be conceded that the defendant is a duly constituted governmental agency exercising only public governmental functions. D'Arcourt v. Little River Drain. Dist., 253 S.W. 966, 245 S.W. 394; Schwepker v. Little River Drain. Dist., 253 S.W. 968, 245 S.W. 400; Gates v. Bridge & Terminal Co., 111 Mo. 28; Funke v. St. Louis, 122 Mo. 138; Gorman v. Railroad, 255 Mo. 490; Peters v. Buckner, 288 Mo. 618; Penn. Railroad v. Lippincott, 116 Pa. St. 472; Railroad v. Waters, 216 Mass. 291; Davis v. Commissioners, 153 Mass. 218; Fort Collins Ry. Co. v. France, 41 Colo. 512; Canady v. Lumber Co., 21 Ida. 77; Brainard v. Railroad, 48 Vt. 107; Chicago v. Bldg. Assoc., 102 Ill. 64; Houston Ry. Co. v. Dallas, 84 S.W. 648; C. B. & Q. Ry. v. People, 72 N.E. 219; Frazer v. Chicago, 57 N.E. 1056; People v. Eberle, 133 N.W. 519; Stone v. Fritts, 82 N.E. 792; Chicago v. Bowman Dairy Co., 84 N.E. 913; Blach v. Glenn, 119 P. 67; Colville v. Fox, 149 P. 496; Hausgen v. Elsberry Drain. Dist., 250 S.W. 905, 245 S.W. 401; State ex rel. Kinder v. Little River Drain. Dist., 236 S.W. 848; State ex rel. Caldwell v. Little River Drain. Dist., 236 S.W. 15; Land & Stock Co. v. Miller, 170 Mo. 240; Drain Dist. v. Turney, 235 Mo. 90; State ex rel. v. Taylor, 224 Mo. 469; Morrison v. Morey, 146 Mo. 561; Barnes v. Const. Co., 257 Mo. 191; Wilson v. Drain. Dist., 257 Mo. 286; State ex rel. v. Little River Drain. Dist., 269 Mo. 458; Houck v. Drain. Dist., 239 U.S. 261; Little River Drain. Dist. v. Railroad, 236 Mo. 111. (8) The injury claimed by plaintiffs does not result from an exercise of the power of eminent domain. It results from an exercise of the police power of the State, acting through an agency created by statute and called a drainage district. It was necessary to construct the levee to achieve the end for which the district was created, namely, to protect the public health and promote the general welfare of the State. The statute expressly authorized the construction of the levee and the damming or changing of watercourses. The district's acts were consequently lawful. There is no charge that the plan used by the district was arbitrary or unreasonable. It was the only method that could be used. (9) A lawful exercise of the police power must meet with uncompensated obedience, although injury result therefrom. Such an injury is not a taking nor damaging within the meaning of the Constitution. C. B. & Q. Railroad v. Illinois, 200 U.S. 561; Gibson v. United States, 166 U.S. 269; Scranton v. Wheeler, 179 U.S. 141; Bedford v. United States, 192 U.S. 217; New Orleans Gas Co. v. Drain. Comm., 197 U.S. 453; Northern Trans. Co. v. Chicago, 99 U.S. 635; Manigault v. Springs, 199 U.S. 473; Atlantic Coast Line v. Gladsboro, 232 U.S. 548; C. & A. Railroad v. Tranbarger, 250 Mo. 46, 238 U.S. 67; Block v. Hirsch, 256 U.S. 155; Omnia Commercial Co. v. United States, 261 U.S. 502; St. Louis Gunning Co. v. St. Louis, 235 Mo. 99; State v. Mo. Pac. Ry., 242 Mo. 339; Eichenlaub v. St. Joseph, 113 Mo. 404; St. Louis v. McCann, 157 Mo. 308; State ex inf. v. Merchants Exchange, 269 Mo. 356; In re Kansas City Ordinance, 252 S.W. 404; Gray v. Reclamation District, 163 P. 1024; Indian Creek Drain. Dist. v. Garrott, 85 So. 312; Des Moines v. Manhattan Oil Co., 184 N.W. 823; Chicago v. Washington Home, 289 Ill. 206; People v. Johnson, 288 Ill. 442.

Sheppard & Sheppard for respondents.

(1) The questions raised by appellant have been passed upon adversely to its contentions. Schalk v. Inter-River Drain Dist., 226 S.W. 227; Lee v. Inter-River Drain. Dist., 226 S.W. 280. The court in those cases held that whether or not such sloughs were watercourses was a question to be determined by the jury. The facts in the case at bar are identical with those in the Schalk and Lee cases. (2) The cases cited by appellant do not seem to have any application whatever to the case at bar, but are applicable to the rights of individuals to drain their agricultural lands. (3) Regardless of whether or not a drainage district is a governmental agency created for the purpose of exercising the police power of the State, Article II, Section 21, of the Constitution of Missouri, makes it liable where it damages private property for public use. Bruntmeyer v. Squaw Creek Drain. Dist., 196 Mo.App. 360, 194 S.W. 748; Schalk v. Inter-River Drain. Dist., 226 S.W. 227; Tarkio Drain. Dist. v....