State ex rel. Walker v. Locust Creek Drainage Dist.

• Decision Date: 29 January 1934
• Parties: STATE EX REL. A. B. WALKER, PROSECUTING ATTORNEY, APPELLANT, v. LOCUST CREEK DRAINAGE DISTRICT ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

67 S.W.2d 840

228 Mo.App. 434

STATE EX REL. A. B. WALKER, PROSECUTING ATTORNEY, APPELLANT, v. LOCUST CREEK DRAINAGE DISTRICT ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

January 29, 1934

Appeal from Circuit Court of Linn County.--Hon. Paul Van Osdol Judge.

Judgment affirmed.

M. E Montgomery, L. E. Atherton and Campbell & Campbell for appellant.

C. A Johnson and Gilbert Lamb for respondents.

REYNOLDS, C. Campbell, C., not sitting.

OPINION

REYNOLDS, C.

This proceeding originated in the Circuit Court of Linn County at Brookfield. It was instituted by the prosecuting attorney of Sullivan County at the relation of the State and was instituted in compliance with an order of the county court of said county.

The respondent Locust Creek Drainage District is a drainage district embracing within its jurisdiction lands lying in both Linn and Sullivan counties. It was incorporated by the decree of the Circuit Court of Linn County on the ninth day of June, 1920, under laws then existing and applicable to the organization of drainage districts in the circuit courts.

At the time of the incorporation of respondent district, there was included within its boundaries a public road in Sullivan County known as Brumbaugh Highway, which ran in an easterly and westerly direction and across Locust Creek, a stream running north and south through Sullivan and Linn counties, also included, at least in part, within respondent's boundaries. A bridge had been maintained by Sullivan County where the highway in question crossed Locust Creek in said county for many years.

Upon its incorporation, the respondent district perfected a plan of reclamation and, in pursuance thereof, in the year 1922, constructed a ditch or drain from a point in Linn County to a point in Sullivan County at points cutting into and utilizing the channel of Locust Creek. In the construction of said ditch, it appears, from facts stipulated in the record, that the same was constructed from the south; that, at a point two hundred and twenty-five feet south of the center of the Brumbaugh Highway where it crossed said Locust Creek, it cut into the channel of Locust Creek; that, at a point one hundred and fifty feet north of said highway, as it crossed said Locust Creek, the construction of said ditch and drain was renewed by cutting through the north bank of Locust Creek and continuing north therefrom through an old ditch, which had been formerly cut and in use, until it reached a point where such old ditch entered the channel of said creek, said old ditch being followed and enlarged and used by respondent district as a part of its ditch and drain. It appears that no change was made in or work done upon said Locust Creek between such points north and south of said highway for a distance of three hundred and seventy-five feet aforesaid, except that, at a point forty feet north of its channel at its intersection with said Brumbaugh Highway and at points north from such point, projections in the channel of said Locust Creek were removed by the use of dynamite and that the plan of reclamation provided for the use of the channel of Locust Creek between the points aforesaid.

It appears further that, soon after or about the time of the construction of said ditch, Sullivan County and the respondent district removed, or caused to be removed, a bridge in use along said public highway where it crossed said Locust Creek west of the city of Browning to the point designated as the Brumbaugh bridge site where said highway now crosses said creek and that said bridge was thereafter kept and maintained at said point for the public travel on said road (by whom it does not appear, but, presumably, by Sullivan County) until in the year 1928, when Sullivan County caused it to be removed to a point eleven feet to the west where it was again maintained until in February, 1929, when the eastern bank of said creek, upon which the eastern end of the bridge rested, was cut by an ice flow and gorge through the ditch, rendering it impassable; and it now appears to be gone and has never been replaced. Subsequent to the construction of said bridge, Sullivan County, on July 18, 1929, made written demand upon respondents to construct and maintain a bridge at such point, which demand has been seemingly ignored and never complied with; and it sufficiently appears, from the answer herein, that respondents had and have no intention of complying with such demand or of building a bridge at the point in question. At the time of the construction of the ditch, Locust Creek, where it crossed the highway at the point in question, tended to cut gradually west. The continued cutting of its bank to the westward seems to have been the occasion for the removal eleven feet west, as above mentioned, of the old bridge in the year 1928 by the county court of Sullivan County.

By this proceeding, it is sought to obtain a decree of the court for a mandatory injunction compelling the erection by the respondent district and its supervisors of a suitable bridge and approaches thereto at the point on Brumbaugh Highway where it crosses Locust Creek and the permanent maintenance of the same at the expense of the respondent district. The probable cost of a suitable bridge and approaches at the point in question is between $ 5,000 and $ 7,000.

The petition was filed on the twenty-ninth day of September, 1929, and proceeds upon the theory that the law casts upon the respondent district and the respondent supervisors representing it the duty to build and maintain a suitable bridge at the site in question together with suitable approaches thereto and is as follows:

"Be it remembered that A. B. Walker Prosecuting Attorney for Sullivan County, Missouri, and who in that behalf prosecutes for the State of Missouri, comes now, and gives the court here to understand and be informed and charges the facts to be:

"That defendant, the Locust Creek Drainage District is a corporation created, organized and existing under and by virtue of an act of the Forty-seventh General Assembly of the State of Missouri, approved May 24, 1913 (Laws of Missouri, 1913, pages 232 to 267, inclusive), and incorporated by a decree of the Circuit Court of Linn County, Missouri, entered of record on the 9th day of June, 1920, for the purpose of reclaiming swamp, wet and overflow land, by drainage or otherwise, and that all of said land in said Locust Creek Drainage District is situated in the counties of Linn and Sullivan, State of Missouri.

"That defendant, F. L. Fitch, Guy Grider, George Gooch, Ross Riddle and Luther Shepherd are the duly elected, qualified and acting supervisors of said Locust Creek Drainage District.

"That the board of engineers of said Locust Creek Drainage District, under the order and direction of the said Board of Supervisors, has prepared a "plan for reclamation" and that the same was filed with the secretary of said Board of Supervisors and now of record in the office of the secretary of the board, and in the office of the circuit clerk of Linn and Sullivan counties, Missouri.

"That pursuant to said plan of reclamation said Locust Creek Drainage District constructed a ditch or canal known as the Locust Creek drainage ditch, with an approximate width, at its surface of forty feet and running southwardly from a point east of the western boundary of Section 8, Township 61, Range 20, in Sullivan County, Missouri, to a point in the main channel of Locust Creek west of the City of Laclede in Linn County, Missouri, and being a distance of about twenty-five miles.

"That the right of way of the channels together with the channel, ditch or canal with the courses and distances thereof, through Sullivan County, Missouri, by the Board of Supervisors for said Locust Creek Drainage District, is shown by said plan for reclamation now on file in the office of the secretary of said board.

"That the defendants dug and constructed said channels, ditches and canals in conformity with the said plans hereinabove described.

"That there is in Sullivan County, Missouri, a duly established public highway known as the 'Brumbaugh Road,' and sections twenty and twenty-nine of Township 61, Range 20, and now is and at all times herein mentioned has been under the supervision and control of said county, and has been, and is kept in repair and used as a road and highway by the people of said county, and that said public highway is intersected by the right of way of said channel of said Locust Creek Drainage District on sectional line between said Section Twenty and Twenty-nine aforesaid. And that at said point of intersection said highway is forty feet in width; that for a long time before the construction of said Locust Creek drainage ditch a bridge was constructed and maintained across the original channel of Locust Creek and was at the time of the construction and digging of said Locust Creek drainage ditch a good and sufficient bridge and in a good state of repair; that the Locust Creek drainage district, defendant herein, under its plan of reclamation, dug its ditch and drain over and through the said original channel of said Locust Creek immediately under said bridge where said original channel intersected with said public highway and that the said ditch and drain of the Locust Creek Drainage District across the said public highway at the same place and in the same channel as did the original channel of said Locust Creek; but the ditch and drain constructed by said Locust Creek Drainage District over said highway enlarged and made said drain and ditch now there, wider and deeper. But the defendants, Locust Creek Drainage District, F. L. Fitch, Guy Grider, George Gooch, Ross Riddle, and Luther Shepherd and its then duly elected,...