Vansickle v. Drainage Dist. No. 1.

• Decision Date: 05 January 1915
• Docket Number: No. 13708.,13708.
• Citation: 172 S.W. 405
• Parties: VANSICKLE v. DRAINAGE DIST. NO. 1.
• Court: Missouri Court of Appeals

172 S.W. 405

VANSICKLE v. DRAINAGE DIST. NO. 1.

No. 13708.

St. Louis Court of Appeals. Missouri.

January 5, 1915.

DRAINS (§ 57) — DISTRICTS — DAMAGES FROM CONSTRUCTION — SUBSEQUENT RECOVERY.

An owner of lands within a drainage district, formed under Laws 1905, p. 180 et seq., which contains provisions for the viewing of the land for the assessment of benefits and damages from the construction of the drain, gives the landowners an opportunity to be heard before such assessment, authorizes the viewers to allow compensation for damages, and provides for exceptions to their report by the landowners, cannot recover from the district for damages to his land caused by the flooding thereof and the pollution of his well from water flowing through the ditch, since it is conclusively presumed that the viewers allowed damages for such injuries, and the question is therefore res judicata, whether the owner availed himself of his rights under the statute or not.

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Action by John R. Vansickle against Drainage District No. 1. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

G. R. Balthrope and C. M. Smith, both of Edina, for appellant. D. A. Rouner and F. H. McCullough, both of Edina, for respondent.

NORTONI, J.

Plaintiff prosecutes this appeal from a judgment of the court sustaining a demurrer to his petition.

Defendant is a drainage district organized under the statute, and plaintiff owns a farm within the district situate on the Salt river bottoms in Knox county. The petition states the defendant drainage district was organized and incorporated by a proper proceeding in the county court of Knox county under the provisions of the act concerning the drainage of swamp and overflowed lands approved April 7, 1905. See Laws of Missouri 1905, p. 180 et seq. It is averred, too, that plaintiff owns about 200 acres of land in the Salt river bottoms and within and affected by the defendant drainage district. It then proceeds to complain of defendant to the effect that it carelessly and negligently injured and depreciated the value of plaintiff's land so situate within the district by causing ditches to be washed across the land and pools of water to accumulate thereon, destroying his well, etc. It is set forth in the petition that plaintiff's land is lower than other land within the district upstream, and that, at the point where the drainage ditch commenced, the bank of Salt river was about eight feet high; that the drainage ditch constructed by defendant, under the statutes at the point of beginning, intercepted the river, where its bank was high, and permitted the water to flow through the same and over plaintiff's lowland, where the banks of the drainage ditch were only 2½ feet high. Because of this plaintiff prays a recovery in damages and also equitable relief. The court very properly sustained the demurrer to the petition, for obviously the damages complained of were taken into account by the viewers and now lie within the realm of res adjudicata. The act under which the drainage district is organized provides for a competent board of viewers, who, after being duly sworn, shall ascertain, among other things, the damages, if any, to be compensated on account of lands prejudicially affected within the district by the construction of the proposed ditch. Moreover, all persons whose...