State v. Wiethaupt

• Decision Date: 03 January 1914
• Citation: 162 S.W. 163,254 Mo. 319
• Parties: STATE ex rel. RUPPEL et al. v. WIETHAUPT et al.
• Court: Missouri Supreme Court

162 S.W. 163

254 Mo. 319

STATE ex rel. RUPPEL et al. v. WIETHAUPT et al.

Supreme Court of Missouri, Division No. 1.

January 3, 1914.

1. DRAINS (§ 14) — DRAINAGE DISTRICTS — PROCEEDINGS FOR ESTABLISHMENT — STATUTORY PROVISIONS.

In proceedings for the establishment of a drainage district, a plat filed by viewers with their report, defining the location of the proposed drain, is, in legal effect, a part of the report, though the statute does not require a plat, but only requires the viewers to report the best route for the proposed drain.

2. DRAINS (§ 14) — ESTABLISHMENT OF DRAINAGE DISTRICT — PETITION.

A petition for the establishment of a drainage district, which locates the route of the proposed drain as "along the right of way of" a designated railroad, calls for the location of a drain adjacent to the right of way, and not for a drain parallel thereto and some distance from the right of way.

3. DRAINS (§ 14) — DRAINAGE DISTRICT — ESTABLISHMENT — PETITION — REPORT OF VIEWERS.

The discrepancy between a petition for the establishment of a drainage district, which locates the route of the proposed drain along the right of way of a designated railroad, and the report of viewers locating a drain parallel with the right of way at an average distance of 200 feet from the line thereof is material, since the landowners may have no objection to an open ditch lying adjacent to the railroad right of way, but may object to one cutting parcels therefrom and leaving the severed portion lying between the drain and right of way.

4. DRAINS (§ 14) — ESTABLISHMENT OF DRAINAGE DISTRICTS — PROCEEDINGS — NOTICE — STATUTORY REQUISITES.

Under Rev. St. 1899, § 8281, as amended by Laws 1905, p. 181, providing that, after the filing of the report of the viewers in proceedings for the establishment of a drainage district, the court of the clerk thereof shall fix the time of the hearing of the petition and report and give notice by publication of the pendency of the petition, the appointment and report of the viewers, the place of beginning, route, and terminus of the proposed drain and the time for the hearing, a notice of the beginning, route, and terminus of the drain as described in the viewers' report is essential, and, in the absence thereof, the court acquires no jurisdiction.

5. CERTIORARI (§ 1) — REMEDY — NATURE.

The office of certiorari is to bring a record of the proceedings of an inferior court or tribunal before a superior court to determine whether it acted legally and the object of the writ is to keep inferior courts or tribunals within their jurisdiction.

6. DRAINS (§ 14) — ESTABLISHMENT — REVIEW — CERTIORARI.

Certiorari lies from the circuit court to review a judgment of the county court establishing a drainage district, where the county court did not acquire jurisdiction for want of a proper notice required by Rev. St. 1899, § 8281, as amended by Laws 1905, p. 181, of the pendency of the petition, the appointment and report of the viewers.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Certiorari by the State, at the relation of George Ruppel and others, against John Wiethaupt and others constituting the county court of St. Louis county, and drainage district No. 1. From a judgment quashing the record of the county court, defendants appeal. Affirmed.

J. C. Kiskaddon and A. H. Kiskaddon, both of Clayton, for appellants. D. C. Taylor and R. H. Stevens, both of Clayton, for respondents.

BLAIR, C.

This is an appeal from a judgment of the circuit court of St. Louis county quashing, on certiorari, the record of the county court of St. Louis county relating to the establishment of drainage district No. 1 in that county. The character of the questions raised makes it necessary to set out portions of the county court record.

The petition for the establishment of the drainage district was filed April 23, 1906, and, omitting signatures, is as follows: "To the Honorable County Court of St. Louis County, Missouri: We, the undersigned, landowners and citizens of St. Louis county, Missouri, do hereby petition your honorable court to construct a drainage ditch, as provided in article IV, chapter 122, Revised Statutes of Missouri 1899, to drain overflowed land, including Boxley and Kramm Lakes, and to carry the waters of the Bonhomme creek to the Missouri river. Said ditch to commence on or about the land of John Bayer, north of mile post 32 of the St. Louis, Kansas City & Colorado Railroad, known as the Rock Island System. The ditch running east along the right of way to the Bonhomme creek, then in a northerly direction to the Missouri river. Said proposed ditch will be about four and one-half miles in length, and the same will be of great public utility, and will be conducive to the public health, convenience, and welfare, and it is not desired to issue bonds." With the petition the required bond was filed, and on May 7, 1906, the county court appointed qualified viewers and an engineer to view the premises and report as the statute requires.

Their report, filed June 18, 1906, was, caption and signatures omitted, as follows: "To the Honorable County Court of St. Louis County, Missouri: We, the undersigned, resident freeholders of said county, who were heretofore, on the 7th day of May, 1906, by order of this honorable court, appointed viewers to view the line of the proposed drainage ditch, respectfully report that before entering upon their duties as such viewers, they did take and subscribe an oath before the clerk of this court, as required by section 8280, R. S. of Missouri 1899. That thereupon, under the directions of the said order of this court, certified by the clerk, they did on May 22, 1906, view the line of the proposed ditch as set forth in the petition herein, and report that by actual view of the premises along and adjacent thereto that the proposed improvement is necessary and practicable, and will be conducive to public health, convenience, and welfare, and that the best route of the proposed ditch is as follows: Beginning at a point in the land of John Bayer, northwest of mile post 32 of the Rock Island Railroad Company, thence running east and nearly parallel with said railroad, at an average distance of 200 feet from said railroad, through land of said Bayer, William Rickard, Mary D. Ficke, Lawrence Fick, Fred J. Brommelsick, Georgia A. Stevens, Robert G. Coleman, P. A. Fick, Charlotte Fick, Mary Schaeffer, Chas. L. Boisselier, Alvina and Edgar Kessler, Leo Steiner, Jr., Wm. J. Kroenung, Otto Hohman, Louis Hartung, Damian Kroenung, Frederick Kroenung, across the Kehr's Mill road, Daniel Kroenung, to Bonhomme creek, thence in a northerly direction across land of Daniel Kroenung, Henry Blank, across Olive road, and Harry Ficke, Adam Steffan and Peter Steffan to the Missouri river. That the route of said proposed ditch will more fully appear from the plat hereto attached and made part of this report, upon which plat said proposed ditch is indicated by a red line. Your commissioners further report that such portion of said ditch should be covered where it crosses said roads, and the work of constructing the same should be let by contract without allotment." The plat alluded to was filed and is in the record here.

Upon the filing of this report, the county court fixed September 21, 1906, as the date for hearing the petition and report, and ordered the county clerk to publish a notice of the pendency of the said petition, the appointment and report of said viewers, the place of beginning, route, and termination of said ditch or drain in the time and manner the statute prescribed. The notice published pursuant to this order was as follows:

"Notice is hereby given that there is pending in the county court of St. Louis county, Missouri, a petition signed by D. C. Kroenung, John Bayer, Wm. J. Kroenung, Walter S. Ficke, Lawrence Fick, and J. F. Brommelsick, to construct a drainage ditch, to drain certain overflowed lands, under chapter 122, article 4, of the Revised Statutes of Missouri, and amendments thereto, said ditch to commence on or about the land of John Bayer, north of mile post 32 of the St. Louis, Kansas City & Colorado Railroad Company, now known as the Rock Island System, the ditch running east along the right of way of the said railroad company, to the Bonhomme creek, thence in a northern direction to the Missouri river, the terminus thereof. That said petition was filed April 23, 1906, and that Henry Heinemann, Charles Wardenberg, and J. J. Collins were appointed viewers and Wm. Elbring, a competent civil engineer, was appointed to assist said viewers, which said appointments were made on the 7th day of May, 1906, and that said viewers did, on the 18th day of June, 1906, file with the clerk of the county court their report, wherein they find that...