State v. Little River Drainage Dist.

Decision Date21 December 1916
Docket NumberNo. 19679.,19679.
Citation190 S.W. 897,269 Mo. 444
PartiesSTATE ex rel. McWILLIAMS, Pros. Atty., v. LITTLE RIVER DRAINAGE DIST. et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Injunction by the State, on the relation of John McWilliams, Prosecuting Attorney, against the Little River Drainage District and others. From judgment for defendants, plaintiff appeals. Affirmed.

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 27 pages of a closely printed record in this cause. For the sake of brevity and to conserve space we shall content ourselves with a résumé of these pleadings, which we apprehend will suffice to make clear the discussion we find ourselves compelled to make.

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 sections 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 Many of the above-mentioned sections of this circuit court act have been repealed and others enacted in lieu thereof; in fact, in 1913 the entire article was repealed and a new article enacted in lieu thereof; but with this condition of these statutes we have nothing to do in this case, for reasons which will hereafter more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 (whom 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 passageway 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 averred that no consent to so cut said Rock Levee road has been obtained, and that no steps have been taken to obtain from the county court of plaintiff county any consent to the cutting thereof, and that no agreement has been entered into by defendant district to save harmless the plaintiff county and the citizens thereof from the expense of building a bridge and approaches thereto, which are made necessary solely on account of the cutting of said public highway by defendant. It is further alleged that while there are 266 thousand acres of land in plaintiff county, only some 15 per cent. of such acreage will receive any benefit from the said Ramsey Creek diversion channel or any other of the public drains, ditches, canals, and levees constructed and to be constructed by defendant, and that therefore, while only some 15 per cent. of the acreage of land in plaintiff county will be benefited, the whole thereof will be taxed for the building of the said required bridge and its approaches, and that therefore some 85 per cent. of the real property taxed in plaintiff county will bear a burden from which no benefits whatever accrue.

It is further alleged that the report of the commissioners appointed pursuant to statute to assess damages and benefits upon the organization of defendant district contained no reference to the fact that a bridge would be needed across the said public road in order to span the Ramsey Creek diversion channel, and that for this reason plaintiff county did not appear and except. It is further averred that the cutting of said road by defendant without the construction over said cut of a proper bridge and approaches thereto would be and constitute a public nuisance from which the general public will suffer great injury, damage, and inconvenience, and that plaintiff has no remedy at law.

The prayer is that defendant be enjoined from cutting said Rock Levee road till they shall have complied with their (alleged) legal duty in the matter of obtaining consent to that end from plaintiff and until they shall have entered into an agreement with plaintiff county court to save plaintiff and the citizens thereof free and harmless from any expense arising from bridging over and making approaches to the Ramsey Creek diversion channel, and "for such other and further relief as to the court shall seem just and proper."

The answer in substance admits all of the allegations made by plaintiff in its petition, save and except the questions (a) whether the expense of building the necessary bridge over Ramsey Creek diversion channel and the approaches thereto shall fall upon plaintiff county, or upon defendant district, and matters germane to this main question; (b) whether Ramsey creek had, till its course was blocked in 1854 by the construction of the Rock Levee road, ever flowed (wholly or in part) to the Mississippi river across the present site of said highway; and (c) whether the filed plan for reclamation showed the future necessity of a bridge over the Ramsey Creek diversion channel. The answer is long and it would but cumber the record for us to recite it here in full. But this question of law and its above-mentioned corollaries of fact with the germane constitutional questions (of which more hereafter) are left as the only questions for our determination.

The testimony taken upon the trial of the case below took a fairly wide range. But one phase of this testimony outside of the conceded questions of law left to us in the pleadings interests us here. That question is raised by the answer and is, to wit, whether there is or has ever been any flow of water from Ramsey creek under the Rock Levee road, or whether prior to the construction of the Rock Levee road there was such flow across the present situs thereof. This question is important here for the reason that it is urged upon us that the law touching the respective duties of a given county and a given district vary according as the bridge made necessary by the construction of a drainage canal is over a natural water course or is made necessary solely by the cutting of a drainage canal across a public highway at a point where before no water course existed, and therefore where before no necessity existed for the construction or maintenance of a bridge of any sort.

Ramsey creek is a small stream which has it source in the hills of plaintiff county near Benton, and flows thence in a northerly direction to the edge of certain bluffs which skirt a swamp across which the Rock Levee road is constructed. This creek reaches this swamp at a point measurably 1,000 feet west of the point at which the Rock Levee road departs from the bluffs to cross the swamp toward the town of Cape Girardeau. There was much contention shown by the proof offered as to whether Ramsey creek, after reaching the edge of the bluffs and entering the swamp in question flowed westwardly and southwardly and away from the Mississippi river, or whether it, at least prior to the construction of the Rock Levee road, flowed eastwardly and across the present site of said road and thence into the Mississippi river. Some proof came in that at least one branch of this creek had, before the Rock Levee road interfered with its course, flowed eastwardly into the Mississippi river, but that it had not so flowed since the Rock Levee road was constructed.

There was proof that there still existed a well-defined channel or depression which had been part of the creek channel for a considerable portion of the distance between the Rock Levee road and the Mississippi river.

It was contended on the part of the defendant that the Rock Levee road had anciently stopped up the eastward channel of Ramsey creek and had prevented it from debouching its waters into the Mississippi river and had caused it partially at least to pond its waters in the swamp and against the Rock Levee road. The proof both from witnesses and from divers exhibits offered in...

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