State v. Dawson

• Decision Date: 12 July 1920
• Docket Number: No. 21889.,21889.
• Citation: 225 S.W. 97,284 Mo. 490
• Parties: STATE ex rel. MANION et al v. DAWSON, Judge.
• Court: Missouri Supreme Court

225 S.W. 97

284 Mo. 490

STATE ex rel. MANION et al v. DAWSON, Judge.

No. 21889.

Supreme Court of Missouri, in Banc.

July 12, 1920.

Opinion Modified and Motion for Rehearing Overruled October 30, 1920.

Certiorari by the State of Missouri, on the relation of E. W. Manion and others, against John M. Dawson, Judge of the Gentry County Circuit Court, to quash the record of that court in a proceeding concerning the boundary lines of the Albany Drainage District. Writ quashed.

This is an original proceeding by certiorari in this court against the respondent, as judge of the Gentry county circuit court. The object of the proceeding is to quash the record of that court in a proceeding for the extension of the boundary lines of the Albany drainage district.

The Albany drainage district obtained a preliminary decree of incorporation at the March term, 1917, of the court aforesaid. The proceeding was under Acts of 1913, pp. 232 to 267, inclusive, with reference to the incorporation of drainage districts by circuit courts. Thereafter, in July, 1918, the board of supervisors of the drainage district filed in the office of the circuit clerk of Gentry county a petition asking that the boundary lines of the district be extended so as to include lands not included in the original articles of association and decree. Omitting formal allegations and the description of the lands asked to be included, this petition is as follows:

"Petition of the board of supervisors of the Albany drainage district to amend the decree incorporating said district by changing the boundary lines thereof so as to include lands not described by or included in the articles of association and decree of this court incorporating said district.

"The undersigned petitioners state that they constitute and are the board of supervisors of `the Albany drainage district, and make and file this petition for and on behalf of said drainage district.

"These petitioners state that all of the lands and other property hereinafter described, owned by divers persons as hereinafter stated, are swamp, wet, and overflowed lands and lands subject to overflow; that all of said lands and other property lie adjacent to the lands of the Albany drainage district as described in the decree of this court incorporating said drainage district; that all of said lands are greatly in need of drainage to protect them from overflow and the evil effects of water; that the chief engineer of the Albany drainage district has prepared a plan of reclamation for said drainage district, which the board of supervisors of said district will adopt and execute, and that all of the lands and other property hereinafter described will be benefited, improved, and reclaimed, in whole or in part, by the execution of the plan of reclamation hereinbefore mentioned, and that no feasible and adequate plan of reclamation can be devised, the execution of which will reclaim and protect the lands now in said district from the evil effects of water which will not also, in whole or in part, protect from overflow, and reclaim and protect from the evil effects of water the land hereinafter described; that the several tracts of land and other property hereinbefore mentioned, together with the individual ownership of said lands and property are as follows, to wit: [Here follows a description of the lands.]

"Wherefore these petitioners pray the court to so amend its decree incorporating the Albany drainage district, made and entered of record by this court on the 22d day of May, 1917, as to include in said district the lands and other property hereinbefore described, and to so change and extend the boundary lines of said district that they will, when changed and extended, be boundary lines as hereinbefore mentioned and described; and these petitioners further pray the court to appoint three commissioners, who shall be freeholders residing within the state of Missouri, and who shall not be landowners in said district, nor of kin within the fourth degree of consanguinity to any person owning land in said district, to appraise the lands that shall be taken for rights of way holding basins, and other works, and to assess the benefits and damages to any and all lands, public highways, railroad, and other property already in the district, or that may be annexed to the district by the change of boundary lines herein prayed for."

The statutory notice of the filing of this petition was given, objections were filed by a large number of the landowners, all of which were overruled by the court, except as to a relatively small portion of the lands asked to be included, and at the December term, 1918, the court entered the following decree:

"Now, on this 9th day of December, 1918, this cause having been heretofore heard by the court, upon the petition and objections herein filed, and having heretofore been submitted to the court, and by the court taken under advisement, and now on this day, being the first day of the regular December, 1918, term of this court, this cause coming on to be decided, the court doth find that due notice of the filing of the petition herein has been given, by publication, for the time and in the manner provided by law, that all of the lands and other property described in said petition are swamp, wet, and overflowed lands and lands subject to overflow; that all of said lands and other property lie adjacent to the lands of the Albany drainage district as described"in the original decree of this court incorporating said drainage district; that all of said lands are greatly in need of drainage to protect them from overflow and from the evil effects of water; that the chief engineer of the Albany drainage district has prepared and the board of supervisors of said district have adopted a plan of reclamation for said district which is a proper, reasonable, and practical plan for the reclamation of the lands of said drainage district; that all of the lands described in plaintiff's petition except such lands therein described as lie in sections 23 and 24 in township 62 of range 32 are of such character and are so situated that the execution of the plan of reclamation adopted by the board of supervisors of said district will greatly benefit said lands, and will reclaim, in whole or in part, said lands from overflow and the evil effects of water, and that, owing to the character and situation of such lands, and the intimate drainage conditions and relations existing between such lands and the lands of said district, no adequate plan of reclamation can be devised which will not in whole or in part reclaim and protect such lands from the evil effects of water.

"The court further finds that the lands described in plaintiff's petition lying in sections 23 and 24 in township 62 of range 31 will not be reclaimed and protected from overflow and the evil effects of water by the execution of the plan of reclamation adopted by the board of supervisors of said district.

"It is therefore by the court ordered, adjudged, and decreed that the boundary lines of the said Albany drainage district, as established by the decree of this court incorporating said district be amended and extended so as to include all of the lands described in plaintiff's said petition, except the lands described in said petition lying in said sections 23 and 24, said lands hereby included within the boundary lines of said drainage district, and the ownership of the several tracts thereof being as follows, to wit: * * *

"That, for the purpose of including within the boundary lines of the said Albany drainage district the lands and other property hereinbefore described, the decree of this court organizing said district is hereby amended and the boundary lines therein changed and extended so that, when changed and extended so as to include said lands and other property hereinbefore described, the changed, amended, and extended boundary lines of said district shall be and are hereby adjudged and decreed to be as follows, to wit: * * *

"It is further ordered and adjudged that Charles L. Garrell, H. H. McClurg, and William Blackford, three freeholders residing within the state of Missouri, and who are not owners of land in said district, nor of kin within the fourth degree of consanguinity to any person owning land" in said district, be and they are hereby appointed commissioners to appraise the lands that shall be taken for rights of way, holding basins, and other works of said district, and to assess the benefits and damages to any and all lands, public highways, railroad, and other property, in the original district, and which have been annexed to said district by this judgment and decree, from the execution of the plan of reclamation adopted by the board of supervisors of said drainage district."

Thereafter in due time the objectors filed motions for a new trial and in arrest of judgment, both of which were overruled, and objectors also prepared and filed a bill of exceptions, which was duly signed and made a part of the record of the trial court. The objectors thereupon filed an affidavit and application for an appeal. The lower court denied an appeal, and, after ineffectual efforts to obtain au order allowing the appeal in this court, the objectors have brought this proceeding.

Respondent's return consists of the decree incorporating the drainage district, the petition and articles of association praying for the incorporation of the district, and a complete transcript of the record of the...