Western Tie & Timber Co. v. Naylor Drainage Dist. No. 1.

• Decision Date: 12 February 1910
• Citation: 226 Mo. 420,126 S.W. 499
• Parties: WESTERN TIE & TIMBER CO. v. NAYLOR DRAINAGE DIST. NO. 1.
• Court: Missouri Supreme Court

126 S.W. 499

226 Mo. 420

WESTERN TIE & TIMBER CO. v. NAYLOR DRAINAGE DIST. NO. 1.

Supreme Court of Missouri. Division No. 2.

February 12, 1910.

Rehearing Denied March 15, 1910.

1. APPEAL AND ERROR (§ 1) — RIGHT OF APPEAL.

A right of appeal is only given by statute, and, for a party to avail himself of the right, he must comply with the enabling statute.

2. DRAINS (§ 2) — APPEAL — STATUTES — RETROACTIVE OPERATION.

Acts 1903, p. 235, and Acts 1905, p. 185, amending Rev. St. 1899, § 8292 (Ann. St. 1906, p. 3922), relating to the organization of drainage districts, by reducing the cases in which an appeal could be taken, apply to proceedings pending at the time of their enactment.

3. DRAINS (§ 14) — ORGANIZATION OF DISTRICT — APPEAL — QUESTIONS REVIEWABLE.

Under Rev. St. 1899, § 8292 (Ann. St. 1906, p. 3922), as amended by Acts 1903, p. 235, and Acts 1905, p. 185, providing that, in proceedings to establish a drainage district, parties desiring to appeal to the circuit court shall file affidavits and applications for appeal specifying the matters appealed from, and limiting the right of appeal to the questions of compensation for property taken and damages for property affected, an appeal lies to the circuit court from an order of the county court organizing a drainage district; but the circuit court's jurisdiction is limited to those two questions only.

4. DRAINS (§ 14) — ORGANIZATION OF DISTRICT — AFFIDAVIT OF APPEAL — JURISDICTION.

Where, under such statute, the affidavit of appeal to the circuit court does not contain the grounds of appeal permitted by the statute, the circuit court acquires no jurisdiction.

5. APPEAL AND ERROR (§ 882) — REVIEW — INVITED ERROR — DRAINAGE PROCEEDINGS.

Where, under such statute, an appeal is taken to the circuit court, and the trial is not confined to the two questions limited and is tried de novo, and the judgment of the county court affirmed in all things, appellant cannot complain; he inviting the error.

6. APPEAL AND ERROR (§ 20) — JURISDICTION — QUESTIONS REVIEWABLE — INTERMEDIATE COURT.

Under Rev. St. 1899, § 8292 (Ann. St. 1906, p. 3922), as amended by Acts 1903, p. 235, and Acts 1905, p. 185, limiting the right of appeal to the circuit court from an order of the county court organizing a drainage district to questions of compensation and damage for property taken and affected by the proceedings, an appeal was taken to the circuit court, and the trial was had de novo, and the judgment was affirmed in all things. An appeal was then taken to the Supreme Court, which possessed appellate jurisdiction only. Held that, where the questions presented to the Supreme Court were other than those from which an appeal would lie to the circuit court, the Supreme Court had no jurisdiction, and the action of the circuit court in passing on them was coram non judice, and hence the judgment must be affirmed.

Appeal from Circuit Court, Ripley County; Henry C. Riley, Judge.

Petition in drainage proceedings by Naylor Drainage District No. 1 against the Western Tie & Timber Company. From a judgment for petitioner, defendant appeals. Affirmed.

This proceeding was instituted in the circuit court of Ripley county, under article 4, c. 122, Rev. St. 1899 (Ann. St. 1906, p. 3915), and the various amendments thereto, for the purpose of organizing a drainage district, designated "Naylor Drainage District No. 1." The petition was in the usual form and conformed to the requirements of said article, and was brought to the November term, 1902, of said court. The petition was accompanied by a statutory bond to secure the costs of the proceedings. Thereupon the county court, in compliance with section 8290, Rev. St. 1899 (Ann. St. 1906, p. 3922), made an order appointing three viewers and a civil engineer, with directions to view and survey the route of the proposed drain, its beginning, course, and terminus, and to report to the court the result of their proceedings at the next term thereof. Due and proper notice of the filing of the foregoing petition and the order of the court made thereon, as aforesaid, was given by publication in the manner and form required by said drainage law.

On the 29th day of December, 1903, the viewers theretofore appointed by the court made their report as required by said law, and upon the same day said petitioners filed in said cause their amended petition. This petition was substantially the same as the original, except it described the beginning, course, and terminus of the proposed ditch as follows: "Beginning at the northeast corner of section 1, township 22, range 4 east; thence in a southwesterly direction across sections 1 and 12 of above township and range, crossing the Doniphan Branch of the St. Louis, Iron Mountain & Southern Railway at their trestle, No. 1089; thence again in a southwesterly direction, crossing sections 11, 14, 15, and 22, township 22, range 4 east, and crossing the north and south quarter section line of section 22 of above township and range about 1,000 feet north of the center of said section 22; thence in a southwesterly direction, crossing the section line dividing sections 21 and 28, township 22, range 4 east, about one-fourth mile east of ¼ section corner, between sections 21 and 28 of above township and range; thence in a southwesterly direction, across sections 28, 29, 31, and 32, township 22, range 4 east, passing through lot 17 of said section 31; thence diagonally across the southeast quarter of section 36, township 22, range 3 east, to the southwest corner of the said subdivision of Ripley county, Mo., being the termini of the proposed ditch and drain, an approximate distance of about nine miles, together with such other side, lateral, spur or branch ditch, drain or water course or levees, or other works that shall be necessary to secure fully the object of the improvement herein petitioned for. Your petitioners further state that the lands aggregating about 15,000 or 20,000 acres, lying and being adjacent to said proposed ditch and drain, will be benefited by said ditch and water courses and other improvements, and which are liable to be affected by or assessed for the construction of said proposed improvements," etc.

Then follows the preliminary report of the viewers, which is substantially embraced in the following order of the court: "And now, on this day, come Oscar Gayle, A. P. Russell, and W. L. Cooper, viewers, and A. C. Spicker, engineer, who having first been duly sworn and qualified as the law directs, to proceed to go upon the proposed line and actually view the proposed route and adjacent lands adjoining said proposed ditch and drain as described in the petition heretofore filed in this court, and submit to the court their report in writing, which is by the court ordered filed. It appearing to the court that, by said report of viewers and engineer, the beginning point in the route and line of said ditch and drain, as well as the termini of the same, which by said report recommended as the best and most practicable route, varies from that mentioned in the original petition filed in the cause, and it further appearing to the court that the petitioners have heretofore this day filed in court an amended petition in this cause, praying the court to locate and construct a ditch and drain upon the line and route proposed and recommended by the report of the viewers and engineer hereinabove mentioned. Which proposed route in said report, and in said amended petition, is described as follows:" Then follows the same description of the route as that before described in the report of the viewers. Then the order of the court continues: "And it is further ordered that the clerk of this court give notice by publication, as required by law, of the pendency of this petition, the appointment of the viewers and engineer, and description of route of said proposed ditch and drain as contained in said amended petition as required upon the filing of a new petition in such case, and this cause is continued."

Following this order, publication was made for one insertion in a newspaper published in the county, as follows:

"Order of Publication. Notice of the pendency of a petition for a ditch and drain, the appointment of viewers, the location and description of said ditch and drain. Public notice is hereby given that Geo. S. Green and others, landowners of Ripley county, Missouri, and owning lots or lands that will be drained or benefited and liable to be assessed by reason of the construction of the ditch, drain or water course or other improvements petitioned for and proposed to be located and constructed, as described in their amended petition this day filed in court, the place of beginning, route and termini of said proposed ditches or drains being as follows, to wit: Beginning at the northeast corner of section 1, township 22, range 4 east; thence in a southwesterly direction across sections 1 and 12 of above township and range, crossing the Doniphan Branch of the St. Louis, Iron Mountain & Southern Railway at their trestle No. 1089; thence again in a southwesterly direction, crossing sections 11, 14, 15 and 22, township 22, range 4 east, and crossing the north and south quarter section line of section 22 of above township and range, about 1,000 feet north of the center of said section 22; thence in a southwesterly direction, crossing section line of sections 21 and 28, range 4 east, township 22, about one quarter of a mile east of the ¼ section corner between sections 21 and 28 of above township and range; thence in a southwesterly direction across sections 28, 29, 31 and 32, township 22, range 4 east, passing through lot 17 of said section 31; thence diagonally across the southeast quarter of the southeast quarter of section 36, township 22, range 13 east, to the southwest corner of said subdivision in Ripley county, Missouri, being the terminus of the proposed ditch and drain, an approximate distance of about nine...