Troeger v. Roberts

• Decision Date: 16 July 1920
• Docket Number: No. 21845.,21845.
• Citation: 223 S.W. 796,284 Mo. 363
• Parties: TROEGER v. ROBERTS et al.
• Court: Missouri Supreme Court

223 S.W. 796

284 Mo. 363

TROEGER v. ROBERTS et al.

No. 21845.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Rehearing Denied September 15, 1920.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Suit by Veronica Troeger against James N. Roberts and others. From an adverse judgment, plaintiff appeals. Affirmed.

This suit, originating in the circuit court of Livingston county, seeks to enjoin defendants from going upon certain described land of plaintiff's for the purpose of constructing a drainage ditch. A temporary injunction was first issued, and after a final hearing the temporary injunction was made permanent until such time as defendants paid plaintiff the sum of $1,088.50; that being the sum, allowed as damages in the condemnation proceeding in favor of the land owned by plaintiff. Thereupon plaintiff duly appealed. There is no dispute as to the facts. The pleadings may be sufficiently understood from the following summary: The petition alleges:

(1) That defendants Hill, Beat, and McCarthy are the members of the county court of Livingston county, Mo., and as such county court have laid out and are preparing to construct a certain drainage ditch across the land of plaintiff; (2) that defendant Broaddus is the civil engineer appointed by said county court to act with the viewers appointed by said court in locating, etc., said drainage ditch, and that said engineer under direction of said court has entered into a contract with defendant Roberts whereby said Roberts agrees to construct said drainage ditch across the land of plaintiff, describing it; (3) "that defendants have never acquired any right or license to construct said drainage ditch through and across the said land of plaintiff; that plaintiff has never been paid anything by defendants or any other person or persons for the privilege of constructing said drainage ditch through and across plaintiff's said land.

"That should said drainage ditch be constructed as so contracted for and contemplated, Grand river, which is a large stream of water, would be thereby caused to flow through said ditch, through and across plaintiff's said land, and plaintiff's said land would be thereby cut in two, leaving plaintiff's residence and about 20 acres of her land on one side of said river and the remainder of plaintiff's land, about 55 acres on the other side thereof, without any convenient or practical way of crossing said river for the purpose of farming and cultivating said land.

"That the said defendants are threatening to and are about to, and will unless restrained by this court, enter upon said land of plaintiff and construct said drainage ditch through and across the same without the consent of and to the irreparable damage and injury of plaintiff, in violation of sections 20, 21, and 30 of article 2 of the Constitution of the state of Missouri, and also in violation of article 14 of the Amendments of the Constitution of the United States of America.

"That no proceedings have been taken by defendants, as required by law, for the ascertainment and payment of damages to plaintiff in consequence of the construction and maintenance of said drainage ditch through and across plaintiff's said land. That plaintiff has no adequate remedy at law in the premises."

The prayer of the petition asks that defendants "be forever perpetually enjoined from in any manner proceeding with the digging of said ditch across the plaintiff's land." The answer contains:

(1) General denial; (2) alleges that drainage district No. 26, Livingston county, Mo., has been duly organized under article 4 of chapter 41, R. S. 1909, and that a contract has been entered into with defendant Roberts for the construction of said drainage ditch; "that all legal steps have been taken and notices given and due process of law had in the organization of said district and in the condemnation of the right of way for the ditch and other improvements in said district, and over and across the lands claimed to be owned by this plaintiff and in her petition described; the right of way over said lands has been duly and legally condemned, had, and obtained, and said district and the contractor has the right to go on and over said lands for the construction of the ditch and other improvements therein, and for the purpose of carrying out the object of the organization of said district.

"Defendants say that damages have been allowed for land taken and otherwise, which will accrue to said land described in plaintiff's petition by reason of the location, construction, and maintenance of the ditch and other improvements in said district in the sum of $1,088.50, which said sum is here now brought into court, and if plaintiff owns said land same is now tendered to her as the owner of said land. Plaintiff says that this suit was instituted immediately upon the execution of the contract with defendant Roberts for the construction of said ditch and other improvements in said district and before any attempt or offer had been made to enter said land or any part thereof, for any purpose, and before a tender of the amount of damages so allowed could be made.

"Defendants, having fully answered, ask that the preliminary restraining order issued herein be set aside and annulled and plaintiff's petition dismissed, and for naught held, and for such further relief in the premises to which they may be entitled."

We find no reply in the record. Reference will be made to the facts as occasion requires in the course of the opinion.

W. W. Davis, Thos. H. Hicklin and Scott J. Miller, all of Chillicothe, for appellant.

Paul D. Kitt, of Chillicothe, for respondents.

WILLIAMS, P. J. (after stating the facts as above).

I. It is first contended that plaintiff's land was never properly condemned for the reason that the county court never acquired jurisdiction over the person of plaintiff. The exact point relied upon by appellant is that her name was not mentioned in the notice which was published by the county court, as provided by section 5587, R. S. 1909. No other objection is made to the notice other than that it...