Squaw Creek Drainage Dist. No. 1 v. Turney

• Decision Date: 01 June 1911
• Citation: 138 S.W. 12,235 Mo. 80
• Parties: SQUAW CREEK DRAINAGE DIST. NO. 1 v. TURNEY.
• Court: Missouri Supreme Court

138 S.W. 12

235 Mo. 80

SQUAW CREEK DRAINAGE DIST. NO. 1 v. TURNEY.

Supreme Court of Missouri, Division No. 1.

June 1, 1911.

1. APPEAL AND ERROR (§ 1011) — REVIEW — FINDINGS — CONCLUSIVENESS.

A finding by the trial court that lands within a drainage district received benefit from the drain, being one of fact, if based on conflicting evidence, will not be disturbed on appeal.

2. DRAINS (§ 13) — DRAINAGE DISTRICT — "PUBLIC CORPORATION."

A drainage district is a public corporation, being a political subdivision of the state, which exercises prescribed governmental functions.

3. DRAINS (§ 13) — DRAINAGE DISTRICTS — STATUTES.

The Legislature has the power to pass statutes providing for the incorporation of drainage districts, and to invest them with the necessary power to construct drains and raise funds to pay for the same by assessment on the lands to be benefited.

4. DRAINS (§ 2) — ESTABLISHMENT — STATUTORY PROVISION — CONSTRUCTION.

Laws 1905, p. 190, which repealed sections 8251-8253, 8259-8263, Rev. St. 1899, and enacted other sections, which it expressly states

to be in lieu of the sections so repealed, and by using the same title as the original act, shows that it was the intention of the Legislature to preserve the continuity of the article in the chapter so amended.

5. CONSTITUTIONAL LAW (§ 188) — "RETROSPECTIVE LAW" — NATURE OF RETROSPECTIVE LAWS.

Laws 1905, p. 193, § 8253a, which provided that lands not originally included in drainage districts might be brought in by petition, is not a retrospective law because applying to an object already in existence at the time of its enactment, for a retrospective law is one creating a new obligation, imposing a new duty, or attaching a new disability to transactions already past, and it must give to something already done a different effect from that which it originally had.

6. JUDGMENT (§ 713) — CONCLUSIVENESS OF ADJUDICATION — MATTERS DETERMINED — "FORMER ADJUDICATION."

For a judgment to constitute a former adjudication, it must appear that the matter now in dispute was in that case put in issue and tried.

7. DRAINS (§ 15) — PROCEEDINGS TO ESTABLISH — CONCLUSIVENESS OF ADJUDICATION.

In the original proceedings for the creation of a drainage district, the court in a tentative or experimental way must determine whether the lands of those objecting to the inclusion in the district will or will not be benefited, but after the formation of the district, and the commencement of the work of constructing drains, the fact of whether the lands will be benefited can be accurately determined, and hence an adjudication at the time of the establishment of the drainage district that certain lands should not be included in the district is not such an adjudication as will preclude a later attempt by the drainage district to include those lands by a petition under Laws 1905, p. 193, § 8253a, providing that any drainage district may be enlarged to embrace lands contiguous thereto, for the original exclusion of those lands by the decree of the court is of no greater effect than an omission in the original proceedings.

Appeal from Circuit Court, Holt County; Wm. C. Ellison, Judge.

Action by the Squaw Creek Drainage District No. 1, by its board of supervisors, John S. Smith and others, against John Turney. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This proceeding was instituted July 27, 1907, by presenting a petition to the circuit court for Holt county, asking that the boundaries of the petitioner Squaw Creek Drainage District No. 1 in said county be extended so as to include a tract of land in said county contiguous to said drainage district, described as follows: The W. ½ of the N. W. ¼ of the N. W. ¼ of section 30, in township 60, of range 38, containing 20.88 acres. The petition stated as the reason therefor that the said tract of land has been greatly benefited by the drainage system adopted, and the work and improvements made and done thereunder, and will be much more benefited by the completion of the proposed drainage and plan of improvement when perfected and completed, and ought to be included in said district and be made to bear its just proportion of the benefits done and received, and to be done and received by the said drainage system, and work to be done hereafter. Summons was issued as provided by section 8253a of the act approved April 8, 1905 (Laws 1905, p. 190), and the defendant, the owner of the land sought to be annexed, appeared, and at the August term, 1907, of said court, filed an amended answer consisting of four paragraphs substantially as follows: (1) Admitted that the plaintiff drainage district was a corporation, that the individuals so designated constituted its board of supervisors, and that defendant was the legal owner and in possession of the land, and denied every other allegation of the petition. (2) That in an action brought in said court by the Mound City Land Company and others against defendant and other parties to secure the incorporation of the ditch company the same land was included in the articles of association presented for that purpose, and that, upon the objection of defendant, the said matter was adjudicated by the court in his favor by judgment and decree made May 2, 1900, excluding said land from the drainage district. (3) That the said land had been excluded from the drainage district, which had since its incorporation incurred a bonded indebtedness of $80,000 then outstanding, in which the defendant had no voice. That in the system of drainage adopted by the district no consideration was given to defendant's said lands. That the ditches constructed were all solely for the purpose of draining and benefiting the lands originally included in the district, and not for the benefit of lands not included therein. That defendant's lands "sought to be included in said district will not and cannot hereafter receive any benefit from said drainage district which has not been received now," and that the sole purpose of plaintiff in this proceeding is to compel defendant to aid in the payment of said bonded indebtedness and interest. (4) That the inclusion of defendant's lands in said district "would be a violation of section 15 of article 2 of the Constitution of the state of Missouri, by giving the statute under which plaintiff's action is brought a retrospective effect and making it ex post facto in its operation," and would also violate article 10 of said Constitution. The plaintiff moved to strike out the second and third paragraphs of the answer on the ground that neither of them constituted any defense to the plaintiff's cause of action, and were merely surplusage. The motion was overruled, and the plaintiff excepted, filed its reply, and went to trial.

Before introducing any evidence, it was agreed as follows: "That the lands in controversy were included in the original articles as filed in the circuit court, and that upon objections being made in due form and in proper time, by the adjudication of the court, said lands were excluded, all as alleged in the objections filed in this proceeding, and that part of the original proceedings incorporating the district referring to the objections to including the lands now in controversy in the original district, and the judgment of the court in reference thereto, are considered in evidence and part of the testimony in this case. The objections and the rulings on them." As a matter of fact, no part of the record in the proceeding to incorporate Squaw Creek Drainage District No. 1 is included in the bill of exceptions, or otherwise referred to in this record. Oral evidence was introduced both for and against the proposition that the tract of land in controversy had been or would be benefited by the drainage system of the Squaw Creek Drainage District No. 1; and thereupon the court, without any declaration of law being asked or given, and without any finding of fact, gave judgment that the prayer of the plaintiff's petition be denied and refused, and that the plaintiff take nothing in this action, and that the defendant go thence without day, and that he recover of and from plaintiff his costs, taxed at $24.55. The plaintiff thereupon filed its motion for a new trial, stating, among other things, that the finding and judgment of the court was against the law and the evidence, and that the court erred in overruling plaintiff's motion to strike out parts of defendant's amended answer, which was overruled by the court, and plaintiff excepted, filed its bill of exceptions, and brought the case here by appeal.

T. C. Dungan, for appellant. Ivan Blair and John W. Stokes, for respondent.

BROWN, C. (after stating the facts as above).

The plaintiff, Squaw Creek Drainage District No. 1, was incorporated in 1900 by a decree of the circuit court for Holt county in a proceeding instituted and conducted under the authority of section 8251 of the Revised Statutes of Missouri of 1899, and subsequent sections, for the purpose of having certain swamp and overflowed lands in that county reclaimed. Its supervisors seem to have proceeded with the work, so that at the time of instituting this proceeding they had constructed, in accordance with plans and surveys made as provided in the statute, ditches and other works which tended to the accomplishment of the object for which it was organized. Up to the time of the passage of the act approved April 8, 1905, amending the provisions of article 3, c. 122, of the Revised Statutes, then in force, relating to swamp and overflowed lands, there seems to have been no way by which they could enlarge the territorial scope of their undertaking. Their incorporation must necessarily precede the execution of their surveys and plans, so that the development of these details might show that their neighbors would participate as largely in the benefits and profits of the enterprise as themselves, yet they could not be made to...