State v. Arcadia Timber Co.

• Decision Date: 01 June 1915
• Docket Number: No. 18367.,18367.
• Citation: 178 S.W. 93
• Parties: STATE ex rel. and to Use off DOUGLAS, Collector of Revenue, v. ARCADIA TIBER CO.
• Court: Missouri Supreme Court

178 S.W. 93

STATE ex rel. and to Use off DOUGLAS, Collector of Revenue, v. ARCADIA TIBER CO.

No. 18367.

Supreme Court of Missouri.

June 1, 1915.

Rehearing Denied June 29, 1915.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by the State, at the relation and to the use of T. J. Douglas, Collector of Revenue in and for the County of Dunklin, against the Arcadia Timber Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is a proceeding begun May 18, 1912, to collect taxes due drainage district No. 19 for the years 1909, 1910, and 1911, amounting, with interest, to $9,984.95. Plaintiff recovered, and defendant has appealed.

The proceedings to establish the district were begun September 7, 1908, in pursuance of article 4 of chapter 122, Rev. Stat. 1899, as amended by Act April 7, 1905, p. 180, being article 4 of chapter 41, Rev. Stat 1909. We will not set out the proceedings on which plaintiff bases the right to recover, except so far as is necessary to show the points in controversy, it being understood that, except as otherwise shown, such proceedings were regular and valid. On March 30, 1909, the final report of the viewers and engineer provided for by section 5584, Rev. Stat. 1909, was filed, containing, among other things, the following:

"We also make and return a schedule of the lots and lands and public or corporate roads and railroads that will be benefited or damaged by the improvement and the benefits or damages to each tract of 40 acres or less, and also make an estimate of the cost of location and construction and apportioned the same to each, and specified the manner and time in which the improvement shall be made and completed, the number of floodgates, waterways, farm crossings, bridges, and other matters necessary, including the probable costs and dimensions thereof, and noted the county and township lines and railroad crossings.

"The plat or map filed herewith is drawn upon a scale sufficiently large to represent all the meanderings of the proposed improvement, and distinctly shows the boundary lines of each lot or tract of land and of each road or railroad to be benefited thereby, the names of the owners of each lot or tract of land, the authority or company having in charge owning or controlling each public or corporate road or railroad, as we are, by diligent effort, able to ascertain the same, the distance in feet through each tract or parcel of land, together with such other matters as the said viewers and engineer have deemed material.

"The profile filed herewith shows the surface of the ground, the grade line and the grade, as we file herewith an itemized bill of all costs made in the proper discharge of our duties, all of which is shown in words and figures in the following written and tabulated report."

The map filed with that report showed the lands included in the district; and each subdivision of 40 acres or less of the lands on which the taxes sued for were levied was marked on that map as follows: "Arcadia Timber Co."—and the map itself was indorsed as follows: "Map of drainage district No. 19, Dunklin Co., Mo. A. C. Spiker, Engineer." The abstract furnished by appellant does not contain the schedule of lands called for by that report, nor does it show whether that schedule was put in evidence.

On April 5, 1909, the county court made an order of publication under section 5587, Rev. Stat. 1909, as follows:

"Drainage District Notice—District No. 19.

"In the Matter of Drainage District No. Nineteen (19) of Dunklin County, Missouri.

"The state of Missouri to Bluff City Lumber Company, F. A. Snipes, W. W. Waddell, W. H. Caudell, Virgil McKay, Topeka Land & Timber Company, L. W. Lemonds, W. H. Davis, Kennett Cypress & Hardwood Lumber Company, Woodruff-Kroy Company, M. D. Wilson. T. R. R. Ely, Arcadia Realty Company, R. O. Hazel, T. P. Hicks, S. F. Hale, St. Louis & San Francisco Railroad Company, and to all other persons whomsoever owning, or claiming to own the lands, or any part thereof, or any interest in the lands hereinafter described:

"You are hereby notified that on the 7th day of September, 1908, at the July term, 1908, of the county court of Dunklin county, Mo., a petition signed by five of the landowners affected by the proposed improvement was filed with the county court of Dunklin county, Mo., the object of which was to secure the formation and construction of two ditches or improvements under one drainage district, and to incorporate a drainage district therefor, as follows, to wit."

Then follows in said order a description of all the said two ditches and of all the land in said district, with the name of the owner of each tract, in which the land on which the taxes sued for herein is described by sectional subdivisions, and the "Arcadia Realty Co." is marked thereon as the owner. Said order did not contain the name of the "Arcadia Timber Co." That notice set the 17th day of May, 1909, as the day for the hearing. On the last-mentioned date the county court made an order containing, among other things, the following:

"In the Matter of Drainage District No. 19 of Dunklin County, Missouri.

"Now, on this, the 17th day of May, 1909, comes W. S. C. Walker, attorney of record for drainage district No. 19 of Dunklin county, Mo., and filed with the court the proof of publication of the notice heretofore on the 5th day of April, 1909, by this court ordered to be given of the filing of the final report of the viewers and engineer of said drainage district, which said proof of publication, with the affidavit of the printer and publisher proving the same, is as follows, to wit: [Here follows a copy of the order of publication above mentioned.]

"And the court having examined the same, and being satisfied from the affidavit of E. P. Caruthers, the printer, manager, and publisher of the Dunklin Democrat, and from other evidence adduced, that the said notice so ordered to be given had been duly published as required by law and by order of this court, cloth find that the said Bluff City Lumber Company, F. A. Snipes, W. W. Waddell, W. H. Caudell, Virgil McKay, Topeka Land & Timber Company, L W. Lemonds, W. H. Davis, Kennett Cypress & Hardwood Lumber Company, Woodruff-Kroy Company, Mercer D. Wilson, T. R. R. Ely, Arcadia Realty Company, R. O. Hazel, T. P. Hicks, S. F. Hale, St. Louis & San Francisco Railroad Company, Cape Girardeau & Caruthersville Division, landowners assessed for the construction of the said improvement as returned by the viewers and engineer, and all other persons whomsoever owning or claiming to own any right, title, or interest in and to the land affected by or assessed for said improvement, have been duly summoned herein according to law, doth proceed to examine said report of the said viewers and engineer filed with the clerk of this court on the 30th day of March, 1909, which said report is as follows, to wit: [Here follows a copy of the above-mentioned report of the viewers and engineer.]"

The order of the county court of May 17, 1909, then approves the report of the viewers and engineer, and declares said district duly incorporated, and establishes the lien for the damages and benefits as assessed by that report against the lands in the district.

The plaintiff read in evidence said proceedings of the county court, to which the defendant objected, on the ground that they contemplated two ditches, instead of one. No other ground of objection was stated.

No objection is made to the sufficiency of the petition. It sets out all the proceedings in the county court on which plaintiff relies to recover, but does not disclose the discrepancy in the name of the owner of the land. The answer contains a general denial, and a plea that the suit was not brought within six months after the taxes became delinquent as required by the provisions of section 5599, R. S. 1909.

At the close of the evidence the defendant asked an instruction in the nature of a demurrer to the evidence, which was refused.

Buder & Buder, of St. Louis, for appellant. Orville Zimmerman, of...