Voss v. Des Moines & Mississippi Levee Dist. No. 1

• Decision Date: 05 July 1916
• Docket Number: No. 14349.,14349.
• Citation: 187 S.W. 820,195 Mo. A. 636
• Parties: VOSS v. DES MOINES & MISSISSIPPI LEVEE DIST. NO. 1.
• Court: Missouri Court of Appeals

187 S.W. 820

195 Mo. A. 636

VOSS v. DES MOINES & MISSISSIPPI LEVEE DIST. NO. 1.

No. 14349.

St. Louis Court of Appeals. Missouri.

July 5, 1916.

Rehearing Denied July 21, 1916.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

Action by Henry Voss, Sr., against the Des Moines & Mississippi Levee District No. 1. Judgment for defendant, and plaintiff appeals. Affirmed, and certified to the Supreme Court for final determination.

John M. Dawson and Wm. L. Berkhimer, both of Kahoka, for appellant. Bert L. Gridley and C. T. Llewellyn, both of Kahoka, for respondent.

NORTONI, J.

This is a suit in assumpsit for the reasonable value of a portion of levee constructed by plaintiff and his assignors. The finding and judgment are for defendant, and plaintiff prosecutes the appeal.

It appears the Egyptian Levee Company, incorporated under a special act of the Legislature of 1855, constructed and maintained a system of levees in Clark county, Mo., to protect certain lands from the overflow of the Des Moines, Fox, and Mississippi rivers. About 11,500 acres of land were included in the district, and the levees were maintained for many years; but finally the corporation became dormant. In other words, the corporate officers a number of years ago refused to qualify and act after election, and the Egyptian Levee Company remained thereafter an inactive corporation. The company owned the rights of way for its levee and a number of ditches, and also a number of levees. Finally, a considerable portion of the levee was washed away, and at that time the corporation was without officers or anybody to represent it. Plaintiff and a number of others owning land within the levee district went voluntarily about the repair of the broken levee in order to protect their crops. It appears they called upon the landowners to contribute their proportionate part, and this they did. The parties had a meeting which about 60 landowners in the district attended, and it was agreed each should pay his portion toward rebuilding the levee which had been theretofore washed away and present their claims to a new levee corporation to be subsequently formed in respect to the same territory. Plaintiff and his assignors contributed the several amounts sued for here and rebuilt the levee of the old, defunct Egyptian Levee Company. To this end they purchased a parcel of right of way and constructed a portion of the levy on this in filling in a considerable gap but connected the new levee with the old. Also, a portion was constructed on the land of plaintiff Voss, but all was builded into and connected up with the levees of the old company. About a year after, defendant Des Moines & Mississippi Levee District No. 1 was incorporated under the general statutes of Missouri; that is, article 7, c. 122, R. S. 1899 (now article 9, c. 41, R. S. 1909, as amended and reenacted). Section 8365, R. S. 1899, same section 5707, R. S. 1909, under which defendant was organized, provides, among other things, as follows:

"If the commissioners shall find that any levees or other works have been constructed, which can be used in making the levees and improvements herein contemplated, they shall assess the value of the same and report the same to the board of supervisors, and said supervisors may order said levee or such works, be used so far as they extend, for the purposes of the levee district in which they are situated, and that the owners of such levee, or other improvements, or other persons having an interest in the same by virtue of having contributed money, material or labor in the construction of the same, be paid, in proportion to their interest, a reasonable compensation therefor, which shall in no event exceed the assessed value thereof."

Although the matter of the several contributions herein sued for was brought to the attention of the board of commissioners appointed to assess the benefits in connection with the organization of defendant, this board declined to allow plaintiff and his assignors, as if they were either the owner or interested parties, compensation for the expenditure by them in acquiring other right of way and in improving the old levee of the Egyptian Levee Company. The board of commissioners nevertheless adopted the levee of the old company together with the portions repaired by plaintiff and his assignors, and the whole was utilized by defendant, that is, the new corporation, in protecting the district.

Plaintiff sues defendant, the new corporation, in the view that it should respond to him and his assignors for the reasonable value of the benefits conferred in furnishing, the additional right of way and in reconstructing the levee of the old company, and relies in part upon the principle reflected in Winkelman v. Des Moines & Mississippi Levee Dist, No. 1, 171 Mo. App. 49, 153 S. W. 539; also, Wilson v. King's Lake Drainage & Levee Dist., 176 Mo. App. 470, 158 S. W. 931; Id., 257 Mo. 266, 165 S. W. 734. But those cases are distinguishable from this, in that there existed a valid claim against the old or prior company contracted by the prior company, in the one case the then existing corporation — that is, the Egyptian Levee Company — which claim had been reduced to judgment, and in the other against the prior existing de facto corporation for services performed under a contract with the officers of such corporations; whereas, here, the money was contributed by plaintiff and his assignors in voluntarily furnishing right of way and rebuilding the levee of the defunct Egyptian Levee Company without any contract whatever with that company or its officers, for, indeed, it had no officers at the time and existed only as a lifeless corporate being.

By instructions requested, which the court refused, it appears plaintiff insists that the statute above copied (section 8365, R. S. 1899, same statute section 5707, R. S. 1909) laid an obligation upon the commissioners to allow reasonable compensation to him and his assignors as individuals for the value of the right of way furnished and the levee constructed in rebuilding the breaks in the old levee of the prior company, even though such money was expended without any arrangement whatever with the officers of that company and after it had ceased to be an active going concern. In this connection, it is argued that the commissioners failed in their duty in rejecting the claims thus presented, and thus entailed an obligation against the new corporation—that is, the defendant company—to make compensation for the reasonable value of the right of way and of the levee constructed in the circumstances above stated, for that the new company appropriated the benefits to its own use. We are not inclined to declare the just principle reflected in the statute quoted to comprehend the facts in judgment here. The statute provides that the commissioners may treat with the value of old levees, and on their report the new company may utilize them in building the new, and "that the owners of such levee or other improvements, or other persons having an interest in the same by virtue of having contributed money, material or labor in the construction of the same, be paid in proportion to their interest a reasonable compensation therefor, which shall in no event exceed the assessed value thereof." Although this statute is to be interpreted liberally, nevertheless the intent of the Legislature in respect of the subject-matter should control. The statute seems to authorize the payment by the new levee district to be made only to persons owning the levee taken over or having an interest in the same by virtue of "having contributed money, material or labor in the reconstruction, etc." The important words of the statute for consideration here are "the owners of such levee * * * or other persons having an interest in the same." No doubt the statute intends to include the case of the owner of a private levee on his individual property which may be taken over in the organization of a levee district, and no doubt it includes as well the case of an old levee district owning levees which are taken over in the construction of a new and, it may be, enlarged system.

It would seem, too, that from the words "having an interest in the same by virtue of having contributed money, material, or labor in the construction, etc.," the Legislature intended to provide a remedy for those who may expend money or furnish material or labor in the construction of a levee under contract with the authorities representing the levee company, as is frequently done in cases where the organization of the levee district so served and benefited is subsequently overturned in the courts through defects in its organization as in the case of King's Lake Drainage & Levee Dist. v. Jamison, 176 Mo. 557, 75 S. W. 679. But obviously the plaintiff and his assignors are not within the terms of this statute, for in the first place they did not own any portion of the levee constructed by them, but rather merely repaired the old levee owned by the old corporation, and in this connection contributed a portion of the right of way for their own benefit. If plaintiff and his assignors owned the levee so repaired and the right of way thus contributed as their private property and defendant appropriated it to its own use, this feature of the case would no doubt invoke the aid of the statute above copied. But it would seem the act of voluntarily going in upon the property of the old company and reconstructing the broken levee and voluntarily providing a right of way on which to build it, connecting the whole with the levees of the old company, invokes the principle which attends the case of one who voluntarily commingles his goods with another, which may not thereafter be segregated, and as a result forfeits his right in the premises. In this view it appears that plaintiff and his assignors were not the "owners" of the levee on which they had conferred...