State ex rel. McWilliams v. Little River Drainage District

• Decision Date: 21 December 1916
• Citation: State ex rel. McWilliams v. Little River Drainage District, 269 Mo. 444, 190 S. W. 897 (Mo. 1916)
• Parties: THE STATE ex rel. JOHN McWILLIAMS, Prosecuting Attorney of Scott County, Appellant, v. LITTLE RIVER DRAINAGE DISTRICT et al
• Court: Missouri Supreme Court

190 S.W. 897

269 Mo. 444

THE STATE ex rel. JOHN McWILLIAMS, ProsecutingAttorney of Scott County, Appellant, v. LITTLE RIVER DRAINAGE DISTRICT et al

Supreme Court of Missouri

December 21, 1916

Appeal from Scott Circuit Court.-- Hon. Frank Kelly, Judge.

Affirmed.

John McWilliams and Ralph E. Bailey for appellant.

(1) Injunction is the proper remedy.(a) Injunction will lie here because the damage proposed to the public highway will be a continuing one in depriving plaintiff of the use of a public thoroughfare and the damages would not be capable of an approximate assessment.Being entitled to the easement in the public highway, as defendants here admit, the law does not oblige plaintiff to submit to a tortious expropriation of it by defendants in exchange for such damages as a jury may see fit to give.Lakenan v. Railroad,36 Mo.App. 372;Turner v. Stewart,78 Mo. 480;Bank v Kercheval,65 Mo. 682;Echelkamp v. Schrader,45 Mo. 505.(b) Injunction is the proper remedy to restrain obstruction of public high way.Lakenan v. Railroad,36 Mo.App. 363;Craig v. People,47 Ill. 487;Corning v. Lowery, 6 Johns Ch. 439;Pettibone v Hamilton,40 Wis. 402;Burlington v Schwarzman,52 Conn. 181.(2) An easement is subject to condemnation and the owner is entitled to compensation, as much so as if the land were taken to which the easement is appurtenant.15 Cyc. 607, and authorities cited.Statutes of condemnation are strictly construed and the statute must be strictly followed.Leslie v. St. Louis,47 Mo. 474;State v. Farrelly,36 Mo.App. 282;Fore v. Hoke,48 Mo.App. 254.(3) The easement held by the public or the county in its highways is a vested right.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) It does not require any provision of the statute to compel the restoration of a highway, and it is not even within the power of the General Assembly to place a burden upon the county which forces the county to levy a tax to meet it for the benefit of a drainage district where the ditch dug by the district is an artificial one and not an outlet for the natural flow of the water.Drainage Comrs. v. Highway Comrs.,220 Ill. 176;Morgan v. Schusselle,228 Ill. 106;People ex rel. v. Railroad, 252 Ill. 372.

Oliver & Oliver for respondents.

(1)The appellant's action was properly dismissed.The county is not entitled to an injunction restraining the construction of Ramsey Creek Diversion Channel across the public road.The drainage district is not required to secure the consent of Scott County in order to construct a ditch across a public road in that county.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.The drainage district is given the right "to construct any of said works and improvements across, through or over any public highway . . . in or out of said district."Sec. 5513, R. S. 1909;Laws 1913, p. 23, sec. 30.(2) All bridges over the ditches of the drainage district must be built in accordance with the plans and specifications approved by the chief engineer of the district.The cost of constructing such a bridge, where it is a part of a public highway, must be paid for in this State by the county in which the bridge is located.This is so, even though there be no natural stream at the point of intersection of the road and drainage ditch.State ex rel. v. Drainage District,252 Mo. 345.(3)The courts of last resort of some of the other states have had similar questions presented to them and the principles announced in the opinions are applicable in the case at bar.Douglas County v. Drainage District,139 N.W. 718;Heffer v. Cass and Morgan Counties,193 Ill. 439, 58 L. R. A. 353;Rigney v. Fischer,113 Ind. 313.(4)The Legislature has the power to create drainage districts of the State.They are political subdivisions of the State, based upon an exercise of the police power of the State.They have for their purpose the reclamation of areas of low, marshy, wet and unhealthful lands, the bettering of the health of the State, and the betterment of the general welfare of the State.They are not local in their character.Land & Stock Co. v. Miller,170 Mo. 253;Morrison v. Morey,146 Mo. 561;Drainage Dist. v. Railroad,236 Mo. 111;Houck v. Drainage Dist.,248 Mo. 382;Drainage District v. Turney,235 Mo. 9;State ex rel. v. Drainage Dist.,192 Mo. 520;State ex rel. v. Bugg,224 Mo. 552;State ex rel. v. Taylor,224 Mo. 468.(5) It is a matter of discretion for the Legislature as to which of the two subdivisions of the State -- the county or drainage district -- it would require to pay for the bridge.Its purpose and use is entirely a public one in which the State is interested and over which it has control.The requirement that it shall be built by the county is constitutional.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;Elliott, Roads and Streets, secs. 509-511, 514-526.(6) There is no taking of private property within the meaning of the Constitution, as alleged by the appellant.The public roads of the State are not the private property of the several counties in which they are located; neither are they the property of the individual citizen thereof.They are public easements under the full control of the Legislature, which may authorize them to be used for other public or quasi-public agencies upon such conditions as it sees fit to impose.Douglas County v. Drainage District,139 N.W. 718;Elliott on Roads and Streets(3 Ed.), sec. 509;Cooley, Constitutional Limitations (4 Ed.), pp. 734, 588;Railroad v. People ex rel., 200 U.S. 561.

FARISJ. Revelle, J., dissents.

OPINION

In Banc.

FARIS, J.

This is a proceeding by injunction brought at the relation of the prosecuting attorney of Scott County, and for the benefit of that county, against the Little River Drainage District and the several individuals composing the board of supervisors and secretary of said district.The county (which we shall hereafter refer to as the plaintiff, for convenience) was cast below, and after taking the proper steps has appealed to this court.

The petition is exceedingly lengthy, as is likewise the answer of respondents; together these pleadings cover the first twenty-seven pages of a closely printed record in this cause.For the sake of brevity and to conserve space we shall content ourselves with a resume of these pleadings, which we apprehend will suffice to make clear the discussion we find ourselves compelled to make.

The defendant, Little River Drainage District, was organized on the 30th day of November, 1907, under that one of our several drainage statutes designated, to distinguish it from the others, as the "Circuit Court Act," and now to be found (with numerous amendments made since defendant district was organized), in the Revised Statutes of 1909 as section 5496 to 5541, both inclusive.Many of the above-mentioned sections of this Circuit Court Act have been repealed and others enacted in lieu thereof; in fact, in 1913 the entire article was repealed and a new article enacted in lieu thereof (Laws 1913, p. 232); but with this condition of these statuteswe have nothing to do in this case, for reasons which will hereafter more clearly appear.

The petition, after alleging the organization of this drainage district and the official character as supervisors and secretary thereof respectively of the several individual defendants, avers that defendant drainage district (which we shall hereafter for brevity refer to simply as defendant) filed on the 15th day of November, 1909, its "plan for reclamation," which said plan, among numerous other details not pertinent to the questions here vexing us, provided for the construction of a ditch or canal to be known (and in said plan of reclamation designated) as the "Ramsey Creek Diversion Channel," which it was intended and contemplated should cross a public highway in plaintiff county known as the Rock Levee Road, which highway runs from the town of Kelso in Scott County, to the town of Cape Girardeau in Cape Girardeau County.This Rock Levee Road was originally a toll road owned and operated by a private corporation, but upon the expiration by limitation of such private corporation that part of the Rock Levee Road here involved became (it is averred) the property of Scott County.It is alleged in the petition and admitted in the answer, that defendant will at a point in plaintiff county cut said Rock Levee Road in order to permit the passage of said diversion channel, and that the passage through said road of this diversion channel will necessitate the erection of an expensive bridge and expensive approaches thereto, which it is estimated will cost $ 10,000.

It is further charged, as a conclusion of law, that it is the duty of defendant district to construct at its own expense the necessary bridge and approaches thereto, since it is averred there is now no creek, or river, or other natural water course traversing said Rock Levee Road at the point where it is proposed to cut said road to form a passage way for its said diversion channel; but on the contrary it is averred that the waters of said Ramsey Creek flow westward and southward and away from the Rock Levee Road, and not eastward, or toward and across the same.

It is further...