Sibbett v. Steele

FERRISS, J.

This proceeding, in the’ circuit court of Lincoln county, is under article 1, chapter 41, Revised Statutes 1909, to incorporate a drainage dis trict. The territory comprising the proposed drainage district is all that part of the Mississippi bottom lying between the river and Prairie Slough, on the east, and the bluff or hill land, on the west, and from a point in Pike county two miles north of the county line, south through township 51, range 2 east, and to the south line of survey 1724, in township 50, range 2 east, in Lincoln county. It is about three and a half miles wide, from east to west, and eleven or twelve miles long from north to south.

King’s Lake Drainage and Levee District was incorporated by order of the county court of Lincoln county, in 1904, under the Act of 1893, now article 3, ■ chapter 41, Revised Statutes 1909, and covers all of the territory of the proposed drainage district, except a small portion of the south end. Commissioners ap *91 pointed by tbe county court under tbe King’s Lake Drainage and Levee District incorporation are now, and bave been since 1905, in charge and control of tbe territory of that district for tbe purpose of that incorporation.

In tbe order of tbe county court incorporating tbe King’s Lake Drainage and Levee District, tbe scope and plan of tbe work then proposed was limited to tbe rebuilding and extending of tbe old levee.

This appeal is by certain objecting landowners to tbe order of tbe circuit court declaring and decreeing said drainage district a public corporation of tbe State, under and by tbe name “Elsberry Drainage District.”

Tbe proceeding was commenced on August 23, 1910, tbe final judgment from which this appeal is taken having been entered on April 13, 1911.

No exceptions to tbe rulings of tbe court on tbe admission or exclusion of evidence were preserved in tbe appellants ’ motion for new trial, nor were any declarations of law asked or given. Tbe following objections are preserved in tbe bill of exceptions, and urged here:

“First. Because tbe proposed drainage district cannot be established over tbe same territory covered by tbe King’s Lake Drainage and Levee District.

“Second. That tbe court did not bave jurisdiction, because a majority in interest of tbe landowners did not sign the petition.

“Third. Because all interested and necessary parties bave not been made parties nor entered their appearance.

“Fourth. Because tbe lands of tbe objectors should not bave been included in tbe district. ’ ’

I. The King’s Lake Drainage and Levee District was organized to construct a levee to protect the lands in the district from the Mississippi river. This is *92 conceded in respondents ’ brief. The record shows the following:

“Petitioners read part of the commissioners’ report in the King’s Lake Drainage and Levee District, showing the plan and scope of the work as follows:

“The plan and scope of the work proposed is as follows: First. To rebuild, strengthen and raise the old levee eighteen inches above the high watermark of 1903 along the route on which it is situated, and extend the same at the south end a distance of two miles along the route indicated on plat and profile to the head of Brear Ridge.”

It was testified by one of the commissioners of said drainage and levee district as follows:

“The levee has not been completed. The levee' has been built down tó Brear Ridge, but not raised the eighteen inches. The assessments have all been'paid and expended except that in litigation. Am keeping the levee in repair. That is the only work we are doing. ” •

The right to incorporate a drainage district under article 1 of chapter 41, Revised Statutes 1909, by proceedings in the circuit court, is not limited by the statute to lands which are not included in a~ drainage district already established. In State ex rel. v. Bugg, 224 Mo. 537 , we held that the county court had authority to create a drainage district out of the same territory embraced in one already established. True, we said in that case that both districts would be under' the control of the county court, which fact would prevent any clash of authority. Still, the reasons given in that case why such authority exists apply here.: Considering the very limited scope and purpose of the existing King’s Lake Drainage district, namely, to maintain a levee against overflow from the river, no collision of Interests or authority is to be apprehended.

It is urged that under section 5575' of article 3 the commissioners of the King’s Lake Drainage and *93 Levee District have the power to do everything contemplated by article 1 of the same chapter. A comparison of.the articles does not warrant this claim. The enlarged powers given by section 5575 relate to the work already done under the provisions -of the article, and look to its greater efficiency. In any event, such additional powers can be exercised only after application to and further order by the county court. We see no more danger in this case of conflict of jurisdiction than existed in the above case of State ex rel. v. Bugg. A similar objection was made in Little River Drainage District v. Railroad, 236 Mo. 94 , and was there disposed of in the following language by Kennisbc, J.: ‘ ‘ The fact that the land is a part of an existing drainage district and has paid benefits therein, is not a valid objection to including it in the proposed district, and the court properly refused objectors’ instruction numbered 8. [1 Page & Jones on Taxation by Assessment, sec. 550; South Highland Land & Improvement Company v. Kansas City, 172 Mo. 523 .]”

II. It is claimed that the court did not get jurisdiction because the articles of association were not signed by “a majority in interest of the owners,” as required by section 5496, Revised Statutes 1909. The record shows that the signers owned a majority of the land within the district in acreage, and also a majority in value, unless the encumbrances on their land by way of mortgages be deducted from the actual value. Respondents claim that inasmuch as the mortgagees did not sign, the' amount of their aggregate mortgages should be deducted from the aggregate value of the lands, thereby reducing the value of the lands owned by the signers below a majority in value. Before final judgment was entered in the circuit court, but after the objections were filed and evidence taken, the amendment of 1911 to this law (Laws 1911, p. 206) took effect. This amendment substituted “ majority in *94 acreage” for “majority in interest.” Appellants insist that the amendment governs in this case. Whether it does we need not decide. We think it clear that for the purpose of instituting the proceedings, and giving jurisdiction to the circuit court, the mortgagees are not necessary signers. Taking the article as a whole, it contemplates that the “owners” who are to institute the. proceedings, elect commissioners, and otherwise act, are the title owners of the land. Each owner, under section 5507, Revised Statutes 1909, is entitled to one vote for each acre owned by him.

III. The record shows that a tract of 640 acres was owned by the Long Estate, a corporation. The corporate name was signed by one of its directors. The record also shows a subsequent resolution by the board of directors ratifying the signing, and stating that it was done by authority given prior to the signing. Another tract of 486 acres was owned by four persons, namely, Deering and his wife, Moa P. Fisher and Mrs. Cave. These names were signed by one Gibson, under written authority from Deering, who purported to act for all the owners. Another tract of one hundred acres was owned by Elsberry and Goodman, in what relation does not appear. Elsberry signed for both. All of the petitioners whose names are signed to the articles appear in the subsequent proceedings as petitioners by attorneys. None of them at any time objected that their names were not signed by proper authority.

This paper, called by the statute “.articles of association,” is in effect the first pleading in the case. It takes the place of and performs the function of a petition. Summons is issued upon it, and objections are filed to it. The signers appear in court by attorney as do plaintiffs in ordinary actions, and the case is styled in their names. The law contemplates that every acre of land within the proposed district shall be represented in court by its owner, who appears *95 either as a signer (plaintiff) or by summons as a defendant. We think these parties, whose names were signed by another, as stated above, and who appear by attorney throughout the proceedings, without objecting, are in court, and are bound by its judgment.

It is also objected that the mortgagees are not in court, either as signers or by summons. What we say in paragraph two disposes of this objection.

IY. Whether the lands of the objectors will be benefited, and whether they are properly included within the district, are questions of fact which were tried out before the court upon testimony pro and con. The judgment of the trial court is - supported by substantial testimony, and therefore should not be disturbed in this court.

Finding no error in the record, the judgment is affirmed.

All concur.