State ex rel. Caruthers v. Little River Drainage District

• Decision Date: 12 July 1917
• Citation: 196 S.W. 1115,271 Mo. 429
• Parties: THE STATE ex rel. J. HENRY CARUTHERS, Appellant, v. LITTLE RIVER DRAINAGE DISTRICT et al
• Court: Missouri Supreme Court

196 S.W. 1115

271 Mo. 429

THE STATE ex rel. J. HENRY CARUTHERS, Appellant, v. LITTLE RIVER DRAINAGE DISTRICT et al

Supreme Court of Missouri

July 12, 1917

Appeal from Cape Girardeau Circuit Court. -- Hon. Frank Kelly Judge.

Affirmed.

J Henry Caruthers and Edward D. Hays for appellant.

(1) Injunction the Proper Remedy. Where the public easement is interfered with by obstructing the right-of-way, relief will lie by injunction. The injury proposed is one not measurable in monetary damage. The nuisance, being of such a nature as to be permanent, and to permanently invade the right of the public to the easement, entitles the county to equitable relief by injunction. Elliott, Roads & Streets, 495, 496 501; 37 Cyc. 252; 29 Cyc. 1219; Lockwood v. Railway, 122 Mo. 86; Debach v. Railway, 89 Mo. 483; Lokenan v. Railway, 36 Mo.App. 363-372; State ex rel. v. Drainage District, 190 S.W. 897. (2) An easement is subject to condemnation, and for which the owner is entitled to compensation, as much so as if the land were taken to which the easement is appurtenant. 15 Cyc. 607. (3) The county has the vested right in public roads as trustee for the public in holding the easement. Elliott, Roads & Streets, p. 321; State v. Faith, 180 Mo.App. 484; State v. Culver, 65 Mo. 607; State v. Walters, 69 Mo. 463; Railroad v. Totman, 149 Mo. 657; Zimmerman v. Snowden, 88 Mo. 218; State v. Wells, 70 Mo. 635. (4) As the law stood in 1907 when the district was incorporated (Laws 1905, p. 190 et seq), the board of supervisors had power to condemn all property, including easements, for the right-of-way of the channels, etc. No power was given them to destroy the public easement in a highway without condemnation. Laws 1905, p. 195, sec. 8259b. (5) In other states similar statutes have been construed to mean that roads and highways must be assessed according to damage and benefits the same as other property in the district, and in such jurisdiction, as well as in jurisdictions where the law is silent as to assessing public roads, according to damages and benefits, it is uniformly held that the district must construct the bridges. Drainage District v. Elgin, 249 Ill. 260; Comrs. v. Drainage District, 246 Ill. 388; People v. Drainage District, 231 Ill. 435; Railway v. Board of Supervisors, 116 N.W. 805; State ex rel. v. Henry County, 157 Ind. 96. (6) And no express statute is necessary to compel the drainage district which runs its ditch across a highway to restore the same. People v. Fenton & R. T. Co., 96 N.E. 864; State v. Drainage District, 132 N.W. 398; Conewango v. Shaw, 52 N.Y. 327; Highway Comrs. v. Drainage Comrs., 246 Ill. 38.

Oliver & Oliver for respondents.

(1) There is nothing presented for the review by appellant's abstract, except the record proper. The abstract does not contain a recital that the appeal was duly taken, nor does it contain a recital that a motion for a new trial was filed. The bill of exceptions shows the filing of such a motion, but that is not sufficient. Case v. Carland, 264 Mo. 463; Dalton v. Register Co., 248 Mo. 150; Clark v. Clark, 191 Mo.App. 278; Walker v. Fritz, 166 Mo.App. 317; Rule 31, Supreme Court. (2) The temporary writ was properly dissolved. The county is not entitled to an injunction restraining the construction of the headwater diversion channel across the roads of Cape Girardeau County. The Legislature has granted the right to the drainage district to cut the roads. Secs. 5503, 5513, R. S. 1909; State ex rel. v. Drainage District, 190 S.W. 900; State ex rel. v. Drainage District, 252 Mo. 345; Douglas County v. Drainage District, 139 N.W. 718; Heffner v. Cass and Morgan Counties, 193 Ill. 439, 58 L. R. A. 353; Rigney v. Fischer, 113 Ind. 313; Railroad v. People, 200 U.S. 561. (3) The Legislature was acting within its power when it granted to the drainage districts organized under the Act of 1905 the right to cut the public roads. The public roads are under the control of the State itself, and the Legislature had full power to authorize a drainage district -- a political subdivision of the State -- to cut a public road without imposing any restrictions on the district for so doing. State ex rel. v. Drainage District, 190 S.W. 901; State ex rel. v. Drainage District, 252 Mo. 345; Douglas County v. Drainage District, 139 N.W. 718. (4) The duty to pay the cost of constructing the bridges must be borne by the county. The drainage district was organized November 30, 1907, under the Act of 1905, and has continued to operate under it and the applicable amendments enacted in 1907, 1909 and 1911, but has never been reorganized nor elected to proceed under the Act of 1913. The law in force prior to 1913 is the law governing this case, since the district has never brought itself within the provisions of the 1913 act. Secs. 5503, 5513, R. S. 1909; State ex rel. v. Drainage District, 190 S.W. 901; State ex rel. v. Drainage District, 252 Mo. 354. It was a matter of discretion for the Legislature to say which of the two subdivisions of the State it would require to pay the cost. The Legislature having designated the county, the courts cannot change it. Nor is it for the courts to say whether the Legislature acted wisely or unwisely. State ex rel. v. County Court, 34 Mo. 546; State ex rel. v. Mason, 153 Mo. 50; State ex rel. v. Owsley, 122 Mo. 68; State ex rel. v. Field, 119 Mo. 614; Eitling v. Hickman, 172 Mo. 258; State ex rel. v. Board of Education, 141 Mo. 45; Harris v. Bond Co., 244 Mo. 690.

OPINION

In Banc.

WALKER J.

The prosecuting attorney of Cape Girardeau County instituted this action by injunction in the court of common pleas of that county against the Little River Drainage District and its supervisors and secretary. The purpose of this proceeding was to enjoin the drainage district and others acting for it or in its behalf from cutting channels or ditches for drainage purposes across the highways of said county until they have obtained consent so to do from the county court of said county and have obligated themselves to hold said county and the taxpayers thereof harmless from any expense incurred in the erecting of bridges and approaches across said highways at the points where the district's channels or ditches cross same.

The judge of the court of common pleas, after having granted a temporary writ, disqualified himself and the cause was transferred to the circuit court of said county, where it was tried, resulting in a judgment dissolving the temporary injunction, but requiring the drainage district before cutting through said highways to cause temporary bridges to be constructed over any channel, ditch or drain where said highways are cut, the same to be done only as the work proceeds and it shall be necessary for its further prosecution. From this judgment relator appeals.

I. It is contended that as the abstract of the record proper filed herein does not contain a recital of the filing of the motion for a new trial and show that an appeal was granted that our review must be limited to such portions of the record proper as have been incorporated in the abstract (Stark v. Zehnder, 204 Mo. 442, 102 S.W. 992; Railroad v. Wyatt, 223 Mo. 347), although the omitted entries appear in the bill of exceptions. As a general proposition this contention is well founded. Matters of record should be preserved in the abstract of same and matters of exception in the abstract of the bill of exceptions where the appeal is perfected by the filing of a perfect transcript. [Case v. Carland, 264 Mo. 463, 175 S.W. 200; Dalton v. A. L. Register & Co., 248 Mo. 150, 154 S.W. 67; Kuczma v. Droszkowski, 243 Mo. 57, 147 S.W. 1000.]

Where, however, the appeal is perfected by the filing of an abstract preceded as required by the statute (Sec. 2048, R. S. 1909) by what is termed "a short form of transcript," to-wit a certified copy of the record entry of the judgment, order or decree appealed from, together with the order granting the appeal, we have held that although the abstract of the record proper may not in terms declare that a certified copy of the judgment and order granting the appeal was filed, if this fully appears in the short form it will supply the deficiency and authorize a review on the merits. [Godfrey v. Godfrey, 228 Mo. 507, 128 S.W. 970; Coleman v. Roberts, 214 Mo. 634, 114 S.W. 39.] The reason for this rule is evident. The abstract derives its integrity from the record and the short form is but a part of same. They are, therefore, entitled, so far as concerns their verity, to like consideration. In this case the certified copy of the record entry showing the granting of the appeal also sets forth the filing and disposition of the motion for a new trial. The objections, therefore, to the sufficiency of the record are fully met and a review of the case on its merits is authorized.

II. The district sought to be enjoined was incorporated in November, 1907, under what is now article 1, chapter 41, Revised Statutes 1909, entitled the "Organization of Drainage Districts by Circuit Courts." The relator contends that the district was not authorized to cut its canals or ditches across the highways without first securing the consent of the county and as a means to that end condemnation was necessary. It is further contended that the expense of restoring the highways to their former condition should be borne by the district, whereas the district maintains that such expense should be borne by the county. These contentions provoke two inquiries: (1) has the district taken the preliminary steps required by law to entitle it to cut across the highways? and (2) upon whom does the burden legally rest of restoring the highways thereafter to their former condition?

No election having been made to reorganize the district under the...