State ex rel. and to Use of Gagnepain v. Daues

• Decision Date: 27 March 1929
• Citation: 15 S.W.2d 815,322 Mo. 376
• Parties: The State at Relation and to Use of Nora Gagnepain, Charles Tucker and Barbara Litters v. Charles H. Daues et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

15 S.W.2d 815

322 Mo. 376

The State at Relation and to Use of Nora Gagnepain, Charles Tucker and Barbara Litters v. Charles H. Daues et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

March 27, 1929

Opinion and judgment quashed.

Killian & Greenwell and P. B. Wood for relators.

The decision of the Court of Appeals conflicts with the following decisions on the points stated. (1) The damage caused by changing the grade of a street is not damnum absque injuria, but must be compensated. Householder v Kansas City, 83 Mo. 488; Hickman v. Kansas City, 120 Mo. 116; Investment Co. v. St Joseph, 191 Mo. 467; Stapenhorst v. St. Louis, 229 S.W. 756; Clemens v. Ins. Co., 184 Mo. 46. (2) Section 21 of Article 2 of the Constitution is self-enforcing, and the injured party can pursue any common-law remedy which will afford him appropriate and adequate relief. Householder v. Kansas City, 83 Mo 492; Hickman v. City of Kansas, 120 Mo. 117; State ex rel. v. Taylor, 224 Mo. 481; Drainage District v. Richardson, 237 Mo. 49. (3) Such damages are as much within the protection of the Constitution as those caused by the actual taking of one's property. Householder v. Kansas City, 83 Mo. 494; Hickman v. Kansas City, 120 Mo. 122. (4) The Legislature cannot bind the judiciary as to the interpretation of this clause, nor limit its scope, meaning, or remedies to enforce the same. Householder v. Kansas City, 83 Mo. 496; Hickman v. Kansas City, 120 Mo. 117. (5) That the owner of property fronting on a street in a city, town or village, owns the fee to the center of the street, subject only to the right of the city to use the same for street purposes, and neither the Legislature nor the city can put an additional burden on it or deprive the owner of access to or use of such street without compensation. Walker v. Sedalia, 74 Mo.App. 75; Snoddy v. Bolen, 122 Mo. 485; Piculjan v. Union Electric Co., 208 Mo.App. 331; Griffin v. Chillicothe, 311 Mo. 648; State ex rel. v. Little River Drain. Dist., 190 S.W. 900. (6) The Court of Appeals in its opinion treats this levee district as if it were a drainage district. The court has the right on this demurrer to take judicial notice of the law under which this district was created, and if such law required the damages to be assessed in the organization of the district, assume that they had been so assessed and that the owner had received his compensation. But it has no right to take notice of statutes foreign to this statute and antagonistic to it. The provision in regard to damages for right of way, and the only provision, is found in Sec. 4672, R. S. 1919, and it requires the directors to secure the right of way long after the organization of the district has been completed and the assessment of benefits made. A levee district is required by law to secure the right of way, a duty the petition states they failed to perform. The petition alleges that the levee district was organized under Chap. 101, R. S. 1889, and is acting under Art. 10, Chap. 28, R. S. 1919. Under this law a levee district must acquire the right of way for its levee before constructing the same, by its very terms. There is no provision in this law for ascertaining and paying damages to private property taken or damaged by the construction of its levee, except as provided by Sec. 4672, R. S. 1919. The petition also alleges, and the demurrer admits, that the levee district at no time secured the right of way for any of its work, either from the Town of Clearyville or plaintiffs, over or along the street.

Samuel Bond and Lucius W. Robb for respondents.

(1) Levee districts "are political subdivisions of the State which the State has the power to create, under its police powers, and as such subdivision it exercises the prescribed functions of government in the district." Morrison v. Morey, 146 Mo. 561; D'Arcourt v. Little River Dr. Dist., 245 S.W. 399; Hausgen v. Drain. District, 245 S.W. 403; Land & Stock Co. v. Miller, 170 Mo. 240; Nauman v. Drain. District, 113 Mo.App. 575; Wilson v. Drain. District, 237 Mo. 39; Squaw Creek Dr. Dist. v. Turney, 235 Mo. 80; In re Little River Dr. Dist., 236 Mo. 94; Winkelman v. Levee Dist., 171 Mo.App. 56; Arnold v. Worth Co. Dr. Dist., 234 S.W. 349; Arthand v. Grand River Dr. Dist., 232 S.W. 264; Sigler v. Inter-River Dr. Dist., 311 Mo. 175; Anderson v. Inter-River Dr. Dist., 274 S.W. 448; Sherwood v. Dr. Dist., 250 S.W. 605; Greenwell v. Wills & Sons, 239 S.W. 578; Tant v. Little River Dr. Dist., 238 S.W. 848; Schwepker v. Little River Dr. Dist., 245 S.W. 968. (2) If damages flow from the exercise of this governmental function, it is damnum absque injuria. Anderson v. Inter-River Dr. Dist., 274 S.W. 454. Unless a positive statute makes the district liable. D'Arcourt v. Little River Dr. Dist., 245 S.W. 399; Hausgen v. Drainage District, 245 S.W. 403; Greenwell v. Wills & Sons, 239 S.W. 578; State ex rel. Hausgen v. Allen, 298 Mo. 448. (3) We have no statute in this State making the district liable for loss occasioned by the exercise of the governmental functions, negligently or otherwise. Sherwood v. Worth Co. Dr. District, 298 Mo. 82; Lamar v. Bolivar Sp. Road Dist., 201 S.W. 890. (4) Respondents had the right to construct their levee, on or over all streets necessary, to carry out its governmental functions. "The public roads are not property of 'any' person. They are public easements under full control of the Legislature, which may authorize them to be used by other public or quasi-public agencies with or without such restrictions as it may deem proper. Eliott, Roads & Streets (3 Ed.) sec. 509; State ex rel. v. Drain. District, 269 Mo. 458. And such authority to enter on streets may be implied. State ex rel. v. Drain. District, 271 Mo. 436. (5) Relators' land, and the road or street fronting thereon, were within the limits of the levee district, and damages, if any, by reason of constructing embankment in street, no part of relators' property being taken, were and are not recoverable against respondents. State ex rel. Hausgen v. Allen, 298 Mo. 448; Hausgen v. Elsberry Dr. Dist., 212 Mo.App. 610. (6) For the entering upon an easement for the purpose of changing a grade, even by a city is not within the constitutional prohibition of taking property without just compensation and cannot be enjoined before paying. Clemens v. Ins. Co., 184 Mo. 60; Smith v. Sedalia, 244 Mo. 124; McGrew v. Paving Co., 247 Mo. 562. A city by reason of violating express statutes relating to the change of grades of streets, and the additional onus placed on it by the very nature of its governmental policies and its manifest functions differing from a levee district, may be liable for consequential damages by reason of changes in grades. However, a different rule regarding counties, school, road and levee districts prevails. Absent a special statute, no liability arises against them therefor. Moxley v. Pike County, 276 Mo. 449; Reardon v. St. Louis Co., 36 Mo. 555; Irvineford v. Franklin Co., 73 Mo. 279; Sherwood v. Drainage Dist., 298 Mo. 82.

OPINION

Atwood, J.

This is a certiorari proceeding in which relators seek to quash the opinion and judgment of the St. Louis Court of Appeals in the case of Nora Gagnepain, Charles Tucker and Barbara Litters v. Levee District No. 1 of Perry County, Missouri, a corporation, John Devenyns, Vincent J. Rola and Pat Esselman.

Counsel for respondents say that the abstract filed by relators is fatally defective in that it does not contain the motion for rehearing, the writ of certiorari or the return of the judges of the St. Louis Court of Appeals, and that our writ should be quashed. Our rule 33 relating to procedure as to original writs contains this provision: "On final hearing printed abstracts and briefs shall be filed in all respects as is required in appeals and writs of error in ordinary cases." We have held that the rule applies to this class of certiorari proceedings, and if no abstract is filed the writ will be quashed. [State ex rel. Paine v Trimble, 290 S.W. 132; State ex rel. Egan v. Trimble, 291 S.W. 468.] Rule 13, applicable to ordinary cases and hence applicable to this case, provides that the abstract "shall set forth so much of the record as is necessary to a complete understanding of all the questions presented for decision. Where there is no controversy as to the pleadings or as to deeds or other documentary evidence it shall be sufficient to set out the substance of such pleadings or documentary evidence. . . . Pleadings and documentary evidence shall be set forth in full when there is any question as to the former or as to the admissibility or legal effect of the latter; in all other respects the abstract must set forth a copy of so much of the record as is necessary to be consulted in the disposition of the assigned errors." In State ex rel. Hirsch v. Allen, 274 S.W. 353, we held that filing a purported abstract in a certiorari proceeding which did not set out the opinion of the Court of Appeals was not a compliance with Rule 13. This holding is sound because the purpose of such a proceeding is to determine whether or not the decision of the Court of Appeals contravenes "the last previous rulings of the Supreme Court on any question of law or equity," and obviously such purpose cannot be accomplished without consulting the opinion. But the abstract duly served and filed in this case sets out the opinion of the St. Louis Court of Appeals, as well as parts of the abstract of the record filed in that court which counsel for relators presumably deemed pertinent to the conflicts alleged in their petition for writ of certiorari, and also recites that relators had previously "filed in the Supreme Court 15 printed copies of their petition for writ of certiorari herein -- which...