*1 APRIL TERM, 1925. Yol. Drainage
Anderson ordinary jurors intelligence lacked or were un- they by were oath, mindful of their not influenced the re- question. marks any murder
This which was as ruthless blackens impelling of crime. The the annals cause of its commis- purely pretense sion sordid. No made that it was was passion suddenly satisfy the result of or to a aroused revenge. spirit appellant, those The when associated attempted robbery with him in the liberately from the scene, fled de- prob- Leonard, shot and killed time, who ably offering fright, paralyzed no was resistance. palliating any No effort made to introduce circum- was appellant’s stances in the defense. There none. were wholly Reliance for a errors reversal was based during the claimed to have been trial. committed a record warrant -reversal. discloses none which judgment All the trial court is affirmed. concur.
ANDREW EDITH ANDERSON, ANDERSON LIFE INSURANCE COM PHOENIX MUTUAL Appellants, v. INTER- HARTFORD, OF PANY RIVER DRAINAGE & LEVEE DISTRICT. One, July 1, 1925.
Division by High A Levee. TO DAMAGES LANDS: Overflow Water: Caused drainage embracing is not side of river district low lands on' one higher damages injuries lands on liable in for to somewhat district, opposite the construction side caused outside twenty-five miles, along high river for distance of levee district, drainage in the from the lands the river waters deflects side, opposite on the outside lands causes them overflow constructed, river although, waters before said levee low the flat and banks and overflowed its time broke over flood thereby lessening district, the overflow lands in being leaving no opposite There them cultivatable. side -watercourse, change natural in a channel river obstruction constructing the,- liable district OF MISSOURI. COURT SUPREME District. & Levee which, maintaining protects district the lands of the thereby overflow, although greater in flood time it causes a overflow district, the waters of the river the lands outside *2 productivity. overflow decreases their increased of River Channel: PLEADING: Demurrer: Admissions: Obstruction 2. Application Pertaining to Surface Water. A to of Rule demurrer petition, charging facts to con state sufficient that does not the it pleaded, action, properly and a cause admits all facts stitute may fairly and reason admission inferences that carries an of all ably allegations. But demurrer does not be drawn from the a petition contradicts, and a conclusive admit as a fact that which the par by specific general statements is restricted or statement necessarily qualify and and limit to enter into ticulars which petition alleging general a a levee extends statement. A that along twenty-five miles; that it is constructed direction southern adjacent river; “plaintiffs’ land lies bank of a that and on the west river, along at bank said and and borders and near to the east to the main of about one hundred feet from.the center of a distance being eastwardly river, said distant from of said and channel mile;” quarter that the a three-fourths of a a of mile to from country; practically low, that and level runs a flat river frequently under was built were lands on the levee the year portion built, during and before the levee water river; part said that “the waters of of the bed of said formed frequent intervals, passed escaped and river at and down the river year, said lands over the various seasons of escape pass thereby enabling built, waters and levee was said to rapidly more off and down said river without obstruction and would;” they an ob than that “said levee constitutes otherwise river,” the levee and that “the construction struction to up pile river, its waters to the channel of said and caused narrowed lands, upon plaintiffs’ contains its eastern bank” and flow over contradictory allegations, admit does not and a demurrer thereto the river obstructed the the levee narrowed1 the channel of bank, A the west and water therein. levee on usual flow of the (less one hun three-fourths of a mile distant from one-fourth to river, feet) not is center of the main channel ofi dred from the channel, chan and does not narrow or obstruct situated beyond nel, include lands river does not a fresh-water for prevent applica banks; demurrer therefore does not and such relating surface and overflow the rule to tion to water. to Police Power: Civil Referable Law: DISTRICT: DRAINAGE
3. swamp drain overflow lands Surface Water. The to drainage power, organized police district and a un- referable Yol. APKIL'TERM, 1925. political State, the statutes is a der subdivision of to classed counties, special districts, districts and the road school private accruing regarded benefits to individual landowners are as incidental; and as to the common-law as surface them rule waters, rule, overflow not the civil-law is in force. Right —--: Same
4. Private Landowner as to Waters: Surface Damages. drainage landowner, A under district not a but governmental do, rule in can common-law force in this State it as a representative agency, capacity, collective the State for district, the lands within the individual for embraced what protection can do under landowners the common-law rule for the water, their lands from surface and that rule has is that one owner right being shut off his surface water from land without adjacent damage liable for the this causes to land of another. drainage lands A district liable in owners injury lying district caused outside thereto prevent erecting overflowing waters levee to surface district, though even increases the overflow Within such outside and over lands. Damages: -: Police Power: Constitutional Surface Water: Dam- *3 Absque Injuria. swamp protection num low lands from of and agency, by by governmental such as a overflow surface waters a by district, levees, drainage the erection of is an exercise police thereby power, although deflected from and the waters thus and lands in the district increases the overflow the lands over produc- district, lessening extent of their outside the even to the injury by tivity, rule lands is the common-law such outside damages absque injuria, conse- those and such are not damnum by provision damages contemplated quential the constitutional 21) “private property 2, declaring (Art. not that shall sec. proceeding just compensation," damaged a and without taken or damages distinguished recover to be from one such to recover damaged by exer- been taken or to lands have compensation ¡Making power for an domain. eminent cise of the police injury exercise is not an inevitable condition protect power, from over- a levee to lands the construction of police power, legitimate by exercise of the water is a surface flow drainage thereby injury district lands outside caused to not, a increasing absence of lands in the said the overflow meaning declaration, damage con- statutory within the provision. stitutional 18; 4, p. 607, Drains, n. Corpus .Juris-Cyc. 19 C. Section J. References. 7|8. 6, p. 519, Domain, J., 13, p. 616, n. 20 C. Eminent Section n. Section 643, 84; 150, 123, p. p. 526, 81; 12, p. Section
48; n. n. Section Section 333, 76; 83; Cyc. 16; p. p, 336, p. Pleading, p. 83, ©88, n. n. 31 n. 9. n. 19, 11; 642, Waters, 639, p, 337, Cyc. p. n. n. 95. 40 n. 192 COURT OF SUPREME MISSOURI. v. & Appeal Stoddard Circuit Court.—Hon. 8.W. C. Judge.
Walker, Affirmed. Munger Meservy, Fort, G, Haff,
J. L. W. Ger- appellants. for man S Michaels (1) sustaining gen The court erred defendant’s petition. plaintiffs’ Art. first amended eral demurrer Bruntmeyer Constitution; District, Mo. v. 2, 21, sec. Ap-p. y. 360.1; 277; 226 S. District, Mo. Schalk W. Bradbury Dis District, 397; D ’Arcourt v. 245 S. W. v. (N. S.) Rich 991; 111. 19 L. R. A. Tarldo trict, 236 v. 49; 384; Inter-River v. ardson, Ham, allega S. W. '583. Sons, G-reenwell Wills damaged plaintiffs’ that lands were tions show they right public against have action use, for such Missouri, under the Constitution of district, power damages. (2) The above cited. See authorities swamp- to the overflowed is referable to drain legislative power function, police State and is agency power exercise State District, 245 S. W. D’Arcourt v. districts. always subj'eot police power rule 396. But the is- Legislature may any exercise expressly City Constitution. impliedly forbidden Julow, 801; State v. 207 W. Commission, S. Railway 339; Ives Co., 16-3; Mo. State v. Company, 46 Colo. Farr, 2-71; 201 N. Y. Smith v. Company, Company, 438.; Belleville *4 Hyman, v. Black 596; Md. 98 323; v. 124- State Iowa, 21. 1601 Donald, Wis. 38-7; v. Utah, State Schwartz, 27 beyond regulations that (a) extend must not Police pro preserve and tends to which reasonable inference rights with enjoyment generally of those inalienable mote - govern insure all men are endowed any violate among men, must instituted are ments or Na requirement the State prohibition express or APRIL 1925. 193 TERM, Yol. v. & Bonnett v. 136 201. Vallier, constitution. Wis. tional police power (Id) The exercise cannot he made destroy to overthrow or cloak under which constitutional rights. 242 Railroad, v. v. 339; Earl, State Mo. State (c) scope po App. 235. broad the Mo. However 152 always subject poVer, Leg that lice it the rule any power may expressly not exercise that is islature impliedly to it the State Constitution. forbidden or 154 375; v. Mo. 930, 934; Ashbrook, 12 State State C.'J. 242. 233 Mo. Smith, 129 Mo. State v. Julow, 163; v. ju (d) not, done this is has, And whether it has question. 242 v. 933; Railroad, 12 C. J. State dicial expressly the dam forbids Mo. 339. The Constitution just public private property aging* for use without expressly Legislature compensation, if should -by provide sued should not districts he damaged private property for the use of owners (3) To he law unconstitutional. district would damaged property for a plaintiffs’ been has show public following Dis Houck v. cases: we use, cite 458; 269 Mo. District, rel. v. 373; Mo. State ex trict, Morey, District, v. Carter 543; 146 Mo. v. Morrison 849; State 236 S. W. District, ex rel. v. 556; Mo. 209- District, Arnold v. 15; 236 S. W. ex rol. v. District, v. App. 578; Tant v. S. W. 220; Wills, Greenwell Mo. Hausgen 245 S. W. District, v. District, 848; 238 S. W. plaintiff’s question whether or not 401. The judicial question. damaged public is a use have been S, (4) 1111. To show 198 W. West, v. State constitutional self-enforcing quoted provision above any appropriate recovered and that following* proceeding*, oases: -cite the we common-law Company, 184 City, Clemens 116; Mo. Hickman v. 560; McGrew 230 Mo. Railroad, McGrew 58;Mo. 124; Sedalia, Paving 560;, Mo. Smith v. Co., 247 City, 485; Greenwell v. Kansas Markowitz Joseph, 51 v. St. Thurston 239 W. S. Sons, Wells City, Fed. 488,21 Kansas 510; Householder Mo. (a) damaged” placed Con “or words Sup. 309 Mo. —13. *5 OF COURT MISSOURI.
194 SUPREME Drainage & Levee District. the word “taken” broaden the field of after stitution physical taking’ consequential where there is no property. Louis v. Railroad, St. of the owner’s (b) a There be violation constitutional 80. physical guaranty taking. 1215; C. J. without 12f In Carpenter, 98 N. T. Janesville v. "77Wis. Jacobs, 98; re (5) Respondent ap 325'. Marshall, In re 102'Fed. 288; peared obtained ease, leave answer an this answering, plea juris and after filed swered, its plea court, and its was overruled. Grant diction of right respondent ing In its contention that it wrong can case, in the venue how its been sued had against judgment prevail the solemn contention jurisdiction against deciding plea to the court its trial Baisley, respondent Baisley 113 550'. The Mo. it1? v. right in which attack the venue it was sued waived its answering. by obtaining to answer and State leave general (6) 214 103. demurrer Southern, v. S. W. judgment case sustain to the merits of the went appealed ing a bar to a from, subse would be parties same, touching quent the same the same suit between Moore, 229.;Insurance cause action. Wells v. (7) demurrer reaches 261. Smith, v. Co. only appear petition. on the face of matters (a) City Upham, A demurrer admits 211 882. S. W. well-pleaded Church, 192 W. Brennan v. S. all facts. A does 226 885. demurrer 982; Jones, Master S. W. Harty, alleged. conclusions of not admit law Tyler, Mo. Musser v. 281 Harelson '583; Mo. legal (b) determining In 649. Musser, Mo. be looked should demurrer, effect of the whole pe fact demurrer not admit to, for the does (c) Searcy County, Mo. 493. v.. contradicts. tition distinguishing conclusions law facts and between In an fact which is thát. ultimate must be borne mind it and the means corollary fact, still a facts other need established is to be which its existence Mo, App. vJCo., 187 Jones proved. APRIL TERM,
Yol.
Drainage &
Rombauer &
N.
Hill, William Barron and
Atkinson>
respondent.
& Oliver for
Oliver
*6
(1)
It is
conceded
St. Francis River over-
Drainage
flowed its banks
and that
Inter-River
Dis-
-pro
trict built
on the
the levee
west side of the river to
tect the
within the district from
the overflowwaters.
Such waters are
v.
surface waters. Goll Railroad, 271
Drainage
I.
668;
Mo.
R. D.
Ham,
D. v.
275'Mo.
Adair
384;
District v.
LINDSAY, C. The lying Edith of 262 of land Anderson, acres owners County, along bank of the St. Stoddard east Drainage River, Francis defendant Inter-River sued organized a decree Levee under District, district County, alleged Circuit Court of Butler County. Mutual Life located The Phoenix in Butler deed Company under a a lien Insurance holder of payment securing loan. of trust land, thirty plaintiffs judgment thousand dol- asked damages alleged been sustained lars to have as the of a them defendant construction alleged, it is river, west bank of said thrown over river to be caused waters of said *9 TERM, APRIL Vol. Drainage rendering plaintiff’s
upon it unfit for cultivation. land, boundary the line The River between St.'Francis forms County County on and Butler the east Stoddard west. general demurrer sustained to
The trial court declining petition, plaintiffs’ plaintiffs and to amended judgment plead and defendant, was entered for further, appealed. presented plaintiffs here have issues arising upon amended demurrer to are those petition. jurisdiction touching question
Certain matters County over de- of Stoddard of the Circuit Court practice, touching procedure and discussed fendant, and plaintiffs, to in the brief are not referred in the brief for require time than no more and this defendant, explanation. appears printed tran- from the It word script the trial plaintiff and the minutes of of the whole record petition judge, original filed was against against and also Andy defendant this Anderson, organized Drainage lo- Mingo district District, a petition original County. In the cated Stoddard against for dam- plaintiff sought recovery both districts ages which is not land, of his caused overflow respec- improvements district, either situated Drainage by Mingo in Stod- tively District, constructed by de- County, River, St. Francis dard east of the County, Process' river. of said in Butler west fendant appeared to time took districts issued. Both of said Mingo demurrer, plead. its filed District Afterward the th,e con- cause answer, defendant filed and this - plaintiff dis by agreement. the next term At tinued Drainage Mingo District, cause missed the as alone, against petition defendant amended filed the co-plaintiffs, An- Edith joined, were and therein there Company. Insurance Mutual and Phoenix Life derson jurisdiction plea filed its the defendant Afterward, nature defendant, based of the over the court alleging that proceedings prior referred bring de- process abused been court had SUPREME COURT OF MISSOURI jurisdiction. plea fendant within its was overruled. Then followed the defendant’s demurrer to said amend- petition ground ed “fails to *10 state against facts sufficient to constitute-a cause of action ’’ plaintiffs, perhaps anticipation defendant. press question juris- that defendant would here the of questions diction having and certain other to do with appellate procedure, gone length have at some into these questions and have cited thereon, authorities numerous attorneys but defendant’s have raised no issue here, as jurisdiction to the or venue,. defendant, as to over the steps appeal, or as to the taken in the but have confined argument their statement, brief and to the issues raised question petition the demurrer —the whether the states of cause action. petition alleges that defendant in- district was corporated purpose drainage “for the of from terri- its tory by means of ditches drains, and water territory, prevent, by fall within said and likewise to meails levees and from embankments, waters territory flowing of outside said from said into territory.” setting* After re- forth the status of the spective parties, describing and be- land, the same ing County, lying situated in Stoddard east of the and plaintiffs St. River, follows: Francis continued as ‘ part ‘Aver that no of within, said real estate lies or part any territory of, constitutes of said any part estate, neither or there- district, has said real damages, of, been on assessed with benefits or awarded improve- of account the location construction of and described. of said hereinafter ments district year con- “Aver that district about the said along high, feet structed levee from ten to fifteen from, point on on River, the west bank of Francis St. County Hodge’s Ferry, of in the said river known as general di- southern Butler and in a Missouri, State twenty- ferry of about rection for a from distance said dividing five the State line between miles, and be- that from the Missouri; Arkansas and State of TERM, Yol. APRIL District. Levee point ferry, ending ginning said levee, said point line, said thereof at said state river the di- forms County, viding line between said Butler bn the west side County, County river, of said and Dunklin Stoddard in the the east side said Missouri, river. County
“Aver Butler that the lands said ferry river, constitute the west bank of said between said state lower than line, were, are, said aforesaid, in the counties of Dunklin and Stoddard opposite, east, river, constitute the or bank of said ferry line. said to said state lying on the side of said
“Aver that the lands east ferry river, line, most said said state or between slightly, gradually, eastwardly from fall lands, said ferry and the eastern of said between said river, bank adja- plaintiffs’ land said said lies state and that line, along bank and near the east cent to river, borders *11 ferry and at line, state between said and said the of one' feet from center distance about hundred opposite the main and the side river, channel of said eastwardly'' being from and distant levee, thereof said three-quar- quarter from from a of a mile to said levee river, on banks of said mile; ters of a that the natural along river flows where the thereof, the western side opposite, bank eastern, are the or levee, said lower than plaintiffs’ located; that lands are where said thereof,, practically and level flat low, said river runs upon country, winding the lands and that stream,; is a frequently under water levee was built were said during portion before the same was and built, part bed year formed last mentioned the lands escaped and river said river, of said waters of and frequent at passed intervals, and down the river upon year, lands over the seasons various es- thereby enabling said waters built, said levee was cape pass obstruction without river and off and down said they would. rapidly otherwise and more than obstruction an “Aver constitutes that said levee diverts and therein river flow of the waters said and the OF MISSOURI. SUPREME COURT river from of said the west side thereof out waters upon of their water channel and to and over, natural ’ plaintiffs great damage. lands, said to their construction of levee “Aver that the said narrowed the channel of said and caused water said river, pile up bank and over the eastern of said river flow ’ upon plaintiffs river, levee, lands, from said to and said great damage. to their building
“Aver and construction of said that high entirély off, cut and obstructed closed, has river the west channel, water or flood of said or channel, thereby causing waters of said river thereof, side plaintiffs’ upon lands; said that to be thrown over and plain- levee, location construction of said before the and dry tillable and had been used tiffs’ said lands were purposes; farming agricultural that loca- for destroyed said said levee has tion and construction of purposes; and loss for destruction said said throwing, casting, waters of said resulted consequence and as a lands, river said over obstructing aforesaid; river as channel of said cast over are, so been,- said waters have still periods at such time, for such lands, year, unfit for culti- them as to render seasons agricultural purposes, and value for and without vation, thirty damage plaintiffs-in thou- sum of pray plaintiffs costs suit dollars, which, sand ’’ judgment. charged negligence of lawful nor want There is no plaintiffs’ bottomed authority case is in defendant. The *12 property theory dam- has sustained on the that their along consequence levee age of the construction this river; of the bank west on the and Grounds of public mean- within the damage use a is for Damage. the Con- 2- of ing Article of Section provision constitutional this State; that stitution of this recoverable are self-enforcing, that the proceeding. any appropriate common-law thereunder \rol. APRIL TERM, parties controversy
There is between the over the charged petition, effect of the facts, in the and ad- general mitted demurrer, and whether the de- applicable fendant invoke the rule to overflow and surface water. properly
The demurrer admits the all facts truth pleaded, and carries admission of all inferences that may fairly reasonably [Mar be drawn therefrom. Ray County Rodgers tin v. Co., Coal Co., upon 255.] Fire Insurance But Demurrer. question petition as a whole is to be a a fact that to, looked and demurrer does not admit as County, Clay plaintiff (Searcy v. which the contradicts 493); and a statement made as conclusive or specific general, cannot state be held to be unaffected necessarily particulars into, enter ments general qualify or limit -the statement. particulars in describ- first with deals alleges
ing It that the the river and the lands. levee, Hodge’s Ferry general southern levee in a extends twenty-five miles direction for distance about a “along and on a construction line; Arkansas that it is levee River.;” that the bank Francis the west St. quarter plaintiffs’ a a lands “from distant from plaintiffs’ quarters lands mile;’-’ of a mile to three eastwardly bordering “about are distant on the east bank from, channel of main center of the hundred feet one flat low, river runs river;” said that “said ’’ winding country, stream; practically level and is river constituting bank of said the west that the land constituting bank; east lower than the land frequently built were which the levee was lands during built, and was before the levee under water of said part bed portion year formed escaped passed river said river and “the waters of sea- at various frequent intervals, down the river at said year, sons of the over escape and enabling thereby waters built, *13 SUPREME OF COURT MISSOURI. Drainage & District. Anderson Levee pass off down said river without and and obstruction they rapidly than otherwise would.” more descriptive particulars, the After the has general character, three in as of the averments, results of the in manner construction of the at the the place obstruc- are, These that it constituted an described. the tion of the river and diverted waters the river channel; the side thereof out of their natural water west the that it the channel caused waters narrowed pile up the river over the east that it bank; to flow entirely high water cut off and obstructed closed, channel, or flood channel of said river on west side thereof. particular important are in statements 'their general
bearing de- averments, because water, the rule to and overflow fendant surface invokes plaintiffs while petition Insist that under the statements application of that rule. no basis for the
there is is or not There is contention as whether there is to channel, or in law. fact, flood given river in Gould definition of a fresh-water quoted approval by this court 'Waters with Longfellow, c. ex 169 Mo. l. as follows: rel. v. composed river, fresh-water like a tidal river, A in- it banks bed, water; but has the alveus or and the land are the elevations shores. The banks stead when channel waters in their natural which confine the banks; highest they not rise to and do overflow banks, and the soil that condition of the water and in submerged, permanently the bed of form which is part but river-bed, river. The banks are beyond arc banks, river does not include lands extraordinary floods, or or covered times of freshets swamps grounds overflow, to liable are or low which, agriculture, or but being for meadows are reclaimable though always covered not reclamation, low too range upon, as be used for cattle water, although pasture. rivers, Fresh natural or uninclosed may rise subject daily tide, fluctuations APRIL TERM, 1925. Mol. 309] District. Levee fall at certain thus have periodically seasons, high and low-water marks. The mark defined low-water which the its stage. river recedes at lowest point *14 mark is line the im- the river. high-water covering the it for sufficient by periods soil presses of and deprive it to its value for vegetation destroy to ’’ agriculture. stream, applied the to a winding When definition low, having “through described as banks and flowing ” level not country, reasonably flat and it does practically the existence of water channel or flood imply high plaintiffs channel.- The contend that under the 'alle- the it must be here that the assumed gations petition the River been obstructed “channel of St. Francis has in their brief and narrowed.” that the state- They say in “the levee was constructed petition ment that the river does not mean on west bank of along and not in the channel of that the levee was constructed may just “the word river;” they ‘along’ that argue and ’’ channel. mean the channel as outside in properly construction, give such It would unreasonable words, re- their meaning View-of the ordinary in the described petition, lation the natural conditions or of construc- course place, and their relation described of the levee as tion, purpose and the inevitable levee, from one- bank, and distant therein. A on west feet) 100- (less of a fourtli to three-fourths mile be in the held to channel cannot be of the main center channel. District, 196 Drainage Bruntmeyer case
In the plain relied particularly by a case 360, Mo. App. in the opinion, as set forth were, tiffs, allegations enter drainage of its in the creation “that page dikes, drains, system its defendant constructed prise, water creeks and and and intersected ditches, cat there the waters diverting turning courses, thereby natural from the watercourse in from their natural con waters, collecting after thereof, and, drainage to a ditches drains and means of said ducted them MISSOURI, 206' SUPREME COURT OF point points plaintiff’s or near to land, which land was deposited outside of said upon, district, and there them plaintiff’s them injury overflow, caused land to his damage. other words, In establishment system drainage district and its collecting resulted in waters creeks other watercourses, and also surface land, casting upon plaintiff’s them in water, and a volume enjoyed theretofore its own natural Upon was free'from overflow.” that state of facts, the n plaintiff owner land outside of the district was held en provi- titled to recover virtue constitutional sion mentioned. The in the instant does case allege plaintiffs’ land free from overflow allege levee, before construction nor does it that defendant’s levee collected the water of other plaintiff’s streams, or water surface and threw it on land. allege, side, It however, does bank the west *15 plain- lower than the bank on the eastern side, where ’ According tiffs land is. to -the this is the con- Hodge’s Ferry, begins dition from where the levee twenty- the the north, line, to Arkansas state a distance of “through practically five a miles, low, flat and level country.” According plaintiffs’ petition, Bruntmeyer’s instance, case, not an inas of collection of the waters of creeks and other watercourses and surface discharge and their in a waters upon plaintiffs’ volume ditches by
land; but, this-levee, waters year, escaped various otherwise, at seasons of the over the western bank of the river and other lands on upon built, the levee was were forced to flow the east thereby greater side of the a flow over was the levee, east bank of river in time of the flood. plaiptiffs by recovery by
Another cited wherein case the owner outside the district was land Drainage District, sustained v. Inter-River is Schalk Springfield Appeals. by 277, S. W. decided the Court Bruntmeyer The decision in that followed v. Drain- case age upon supra, liability of the the defendant District, provisions 21 of of Section Article district under the APRIL 1925. TERM, Yol. Drainage upon Otherwise,
of the Constitution. the merits, it upon fact that was evidence based tended to show that in times flood the waters of Black River slough, constituting into a certain a overflowed natural and one watercourse, channels of Black River sloughs with other which connected and before the con by struction of a levee the defendants conducted the water (cid:127) again into Black River. The levee obstructed the flow sloughs, of wáter in these it caused to be dammed plaintiff’s up land. and to back over the A similar situ Sigler in ation was shown Inter-River Dis holding 487, 257 S. like trict, made, W. was but ground that certified to this court cause was in decision was conflict with what was said . City Appeals, in Court of v Kansas Arnold Worth App. County District, Mo. The last named case, negligence alleged in one which however, was was bridge, holding construction of that there against quasi- of action was no cause as a district, corporation and arm the State, on account of the holding harmony negligence of its officers. This Hausgen holding court in ex rel. of this Allen, where the cases are reviewed Judge held absence and it was Craves, declaring, drainage governmen district, statute as a so agency, liable for to lands tal was not within Bruntmeyer, negligence. due to district its negli Sigler grounded upon Schalk and cases are ground gence, decisions therein rest and 'the improvements damaged made, in the had district, public plaintiffs property plaintiff’s *16 and the use, for a provision. the to sue under constitutional were entitled proceeded opinions also in these But each of the cases showing, theory, upon upon that the drain facts improvements age made, in the character of district gone beyond the protect had overflow, lands from ip. opinion regard. right in common-law that being Sigler held, That especially does this. case more injuria absque could well of damnum the doctrine SUPREME COURT OP MISSOURI Drainage & entering apply in these cases as into the construction to given “damaged” to the word be used in Con- stitution. Bruntmeyer decision in the case follows the de Bradbury in
cision
v. Vandalia Levee
Dist.,
provision
so as to cause the water to back on the erty plaintiff up of the farther the stream. The court right sustained the to maintain such a suit under the petition provision, upon constitutional but the counted Section 2 of the act under which defendant in corporated, provided that in lands embraced drain age liable, any districts should be all might any by levee, sustained ditch drain in such district under the act. That na section was legislative applying of a ture declaration rule drainage the Civil districts. The court said: Law adopted by “Under court, the rule of the Civil Law right governed nature, the law of proprietor anything prevent and the lower cannot do the natural flow of surface cast it back water and recognizes the land above; and this court no distinction flowing between surface waters those a natural watercourse.” aggregation
It was held that an of landowners vol- untarily accepting the of the act could not do benefits (under rule) an what individual landowner the Civil-Law organization could not It was held do. proceeding district an exercise thereunder was not police power. Its defined as that of a status was gwsi-public corporation “organized upon the they majority of a of owners of belief organization,” would be benefited and on the theory “they privileges them have conferred *17 - 209 TERM, APRIL Yol. Drainage & Levee District. request are a consideration for the duties their imposed In this State the them.” view held has swamp drain and been that the to overflowed lands police power State; of the drain is referable age political are subdivisions of the State, districts counties, road districts school be classed and dis private accruing tricts, benefits individ regarded [State as ual are incidental. ex landowners Drainage 73; Dist., River 291 Mo. rel. Caldwell v. Little Morey, 146 v. Morrison v. Mo. Land & Stock Co. 543; Hausgen Allen, Mo. ex rel. v. 298 Miller, 240; 170 Drainage District, 291 State ex Kinder Mo. 448; rel. 267.] Mo. rule to sur
In the common-law State, too, [Adair Drain waters face water overflow force. age 244, 252; Mo. Co., Dist. K. Railroad 280 Goll v. v. O. 655; Inter-river D. A. 271 Dist. C. & Railroad Mo. Co., Ry., 174 Hannibal & St. Ham, 384; Cox v. J. Thompson v. 271; 588; Railroad, Mo. Abbott v. App. Applegate Franklin, 109 Railroad, 62; Mehonray App. App. 229; Mo. Foster, Mo. 232.] Leazenby, App. Johnson v. Mo. drainage landowner, not a but under district is no reason
(cid:127)the common-law rule force this State governmental perceived why as a district, representative agency in a collective do, could not capacity, embraced within and for the lands the State under could do district, what individual landowners that rule. complaint petition is that essential prevented from es- the waters of the levee
construction whereby caping’ built, the levee was over the lands where height the east side water on there was increased damage. consequential There is in river, lying on the east that the lands the statement Hodges Ferry the state of the'river between side slightly gradually lands, fall east- or most of line, wardly said from which river, bank the eastern were affected said lands it inferred that most of Sup. Mo. —14. SUPREME COURT OF MISSOURI. Drainage . . height rulings the increased of the water. Under the Drainage
of this court in Goll v. Railroad, Ham v. Dis Adair trict, District, others, above, cited *18 this court is committed to the doctrine that overflow from, pro water prietor a stream is surface water, and that one right lands has to shut off such surface being pro water from prietor land without liable his to another damage for the caused. Under the declared thus powers purposes districts the rule must apply governmental be held to where the district as a agency shuts off such or surface water from overflow the lands embraced its boundaries. plaintiffs power
It conceded here to swamp po and overflow referable drain lands is lice of the State. The essential contention is that police power any cannot extend to exercise expressly thing impliedly forbidden the Consti destroy tution, and cannot be made a cloak to constitu [City rights. Public Com tional of St. Louis v. Service 129 Mo. 509; Julow, 163; 276 Mo. State v. State mission, 242 233 Railroad, 339; Smith, v. Mo. Pac. Mo. State v. plaintiffs’ prop it 242.] Next, Mo. insisted damaged public erty [Houck v. for a use. Dis has been Drainage District, rel. 269 248 Mo. State ex trict, 373; Drainage 542; Mo. State 458; District, Carder v. Drainage ex District, rel. Caldwell v. 448.] Hausgen di
ex Mo. Attention is Allen, rel. holding Mo. 80, Railroad, rected to in St. Louis damaged” placed in the that the words “or Constitution consequen broaden the after the word “taken” field physical taking. damages no tial where there is Drainage provision applied in was The constitutional exceptions filed 384, Ham, District damages. The proceeding condemn land and assess exceptor’s proposed and left a land, bisected the part River. the St. Francis of it between the levee and right injury compensation land thus to the The facts were off determinative cut was sustained. seeking but was landowner, not a that the district was Yol. APE.IL TEEM, 1925. & part exceptor’s
to condemn a land. The land contiguous right way affected was and the dam age Bungenstock immediate. In v. Nishnabotna Drain age question Dist., 163 Mo. land in was outside charged and the district, defendant was with unskil negligence carrying plan. fulness out the Of that Hausgen it said, in State case ex rel. Allen, distinguishing l. c. 459, Mo. it from the case then under damaged consideration: “There the land was outside right- the district. There the district had condemned a of-way ditch, over the not in land the district, for its paid against and had assessed init favor by negligent of the landowner. After all this, conduct by negligently plan, devised the land of this owner damaged. question was further wak not so much a question negligence appropriar as it further was the plaintiff’s property public tion of *19 to a use, without com pensation.” opinion Hausgen’s The in case discussed at length some the status nature of districts, “legislative agencies, exercising exclusively govern as quoting mental in functions,” that connection the ut Judge terances of in the Caldwell case and of Eagland Judge White in the Kinder case. Bungenstock and Ham cases, also Haus
gen respective materially in case, are, their facts, differ from bar. ent the case at In instant case the defend attempting ant district did not exercise is not power respect exercise plain eminent domain in ’ negligence property; charged plan tiffs in is not or con unnecessary damage. nor struction, infliction infrequently respective courts have discussed na police power of the domain, ture and of eminent some application in other, what their relation to each their in question given property case to the whether owner compensation. concurring opinion was entitled to In the Judge in rel. Penrose Investment Co. State ex Graves involving Zoning McKelvey, ordinance, St. Louis 301 Mo. l. c. 22, it was said: OF SUPREME COURT MISSOURI. property right property
“Ill broad sense no or can except through police from individual be taken power power may of the State. This be exercised to property abate a to restrict the uses nuisance, to law purposes, private prop ful or and non-deleterious to take rights erty7', growing property, public out of for use payment In therefor. other words, eminent do police power main is but limited use of the of the State. distinguish I know that cases and text-writers between police power and eminent domain, but in the analyses ultimate principle
the basic
domain
eminent
is the
police
sovereign
that,
inherent
State. So
my judgment,
in
eminent domain is but the limited exer
police power.
rights
So that in some
cise
cases
police power,
property
limited,
bd
with
compensation,
require compensa
whilst other cases
out
tion.”
Gray
In v. Reclamation District, Supreme Court of California dealt the same sub- ject provision under a constitutional similar to ours, presented substantially where the facts the issue abase before case. court after statement of us That page facts 1032: said, enjoined
“But that work of the character here legitimate police work done under a exercise of power, damages it, and that will result such contended are for, as are here compensation, is, the owner of the is not entitled to land Iby slightest them, without conflict in established authorities, all Federal and at least where the State, provision taking. merely a consitutional forbids Our *20 cases, supra, and the cases, Swift, own such Green v. as Supreme as the States, of the Court of the United such only7 supra, are the case, Jackson case and the Cubbins made) support incontest need be to this references' which able declaration. ‘‘ query being sub case, the final Such provision ject-matter in amended our is this: Has the private property providing may neith Constitution, APRIL TERM, Vol. Drainage & damaged public pre for
er nor use without the be taken compensation, abridged payment limited the ex police power of the in of the its efforts di ercise great public rected to the abatement of this nuisance1? abridged po limited and 'the exercise of the “Has it power, adopted by an which, definition, lice this court analysis gov power has to be in its final ‘the declared Pillsbury, Indemnity 170 Cal. [Western ern’? Co. the courts 398.] Much has been 686, 694, 151Pac. police between the broad, the distinction about the obvious power power domain. We will not and the eminent unnecessarily the intricacies of ex enmesh ourselves in pow far these we think that so Indeed, act definition. given. overlap, precise can definition be no ers meet police incontestably Where the much true: But this power is uncompensated legitimately submis exercised property property if his owner sion is exacted of destroyed.' damaged, In the exercise taken, or either compensated obedience domain, of eminent property taking damaging the owner’s or for of his right. constitutional any similarity problems in not arise
“The
do
They
powers
in each
arise
themselves.
the nature
determining
difficulty
or not
whether
case from the
police power
dis-
is but'a
of the
asserted exercise
private
rights,
evading
guise
owner’s
for
that,
damaged
property
com-
without
is'taken
result
his
compensation
for.
called
pensation
in a
where
case
unquestionably
that the addi-
true
it is
“But while
gov-
‘damaged’
law
constitutional
our
of the word
tion
gives
right
erning
eminent domain
the exercise
many
compensation
right
which did
instances
touching
the exercise
formerly
not,
did
exist, it
power, give
right
police
of action
injuria.”
absque
were damnum
theretofore
pro
bearing
question
issue in its
is dis
United States
-of the
Constitution
visions
Hughes
1;S.
States,
U.
cussed
Jackson United
Mississippi
and Cubbins
States,
River Commission,
health arising swamp from the except and overflowed property lands, and where compensation paid, taken for which must'be such inter- way give general any ests must to scheme for recla- improvement mation large of such lands. The of swamp bodies though and overflowed lands, even purpose reclaiming done for the agricultural them for purposes, purpose promoting.the pub- and not for the public purpose proper lic health, is a police power and a exercise damages resulting prop-
of the State, and to erty carrying out of such scheme are dam- absque injuria, taking num and do not constitute property under the Fourteenth Amendment.” McCoy Bayou
In Plum Board of Directors of Dist., Levee 95 Ark. the suit was an owner of lands situated between Arkansas River the levee, provision constitutional that of tb e like under. setting Missouri The court Constitution. after forth page phvsical detail with, said, conditions dealt 349: . presented question or not, “The whether is therefore protection for the flood of lands from inundation may rightfully river, of a a levee be built across waters depressions, prevent places so as to swales low surrounding* escape low lands into the. flood water sought protected; not, order also whether or to be protect prevent spread lands water and to of flood building of a overflow, which would otherwise higher raising on the the water has the effect of compen- river calls lands between the levee damaged. thereby sation to the owner of such dif- questions free of “The solution these ficulty, of the court are but decisions there few TEEM, APBIL ATol. Drainage & light inquiry much them. The would first
sited seem overflowing to the characterization of floo'd be as waters they they again recede—whether stream, return *22 running water or be treated as surface as water should inquiry an stream. But we are not sure that such of the question presented, now is essential to solution of calling water, it, it surface treat without we for, of the sea, like surface water or the waters common any body enemy or landowner or of landowners incurring public agency may against without lia defend unnecessarily injury bilit)r inflicted for unless expense, which, another reasonable effort Ry. Chap v. [Little Rock Ft. Co. could avoided. & S. 271.]” Ark. Allen, 39 Baker man, Ark. v. 66 463; City, v. M. & Railroad Co. of B. The eases Kansas District, and Lamb v. Reclamation Smith, 677, Miss. plaintiff quoted. extensively was 125, 73 Cal. are recovery. page con 352: said, denied a It “AAre jury which the could exist, that, facts clude the state of court found under instructions have; rightfully in the the levee could defendant .construct plaintiff liability for manner described without damages. a distinction however, that is insisted, [It provision our' Consti be made because should appro ‘private property taken, not be that shall tution compeib just damaged public priated without or for use In 1874.] [Art. Constitution 2, 22, therefor.’ sation are reaching announced, we conclusion above no provision; but where unmindful of the constitutional right injury which the is no violated, has been there injury compensation. with anof a case law affords It is supra.]” drainage damages. District, [Lamb Reclamation out v. that doctrine This court is to the committed per they governmental that functions; districts exercise private proprietary that their functions; form no po powers granted are referable existence and plaintiffs case power In the instant lice proceed upon of the State. building theory their of it result act, was a lawful but as a SUPREME COURT OF MISSOURI. Anderson, Drainage & District. Levee public damaged meaning for a use within are statutory provision No their Constitution. authorizes alleged inj'ury that if it must be conceded the provision, suit, but, pro- damage within the constitutional self-enforcing. City, [Householder Kansas vision is Paving 247 Mo. Co., 560.] 488; McGrew making just compensation an essential con domain, exercise of eminent dition of the injury making compensation for an has never been but police power. an inevitable condition of exercise [Tranbarger S. Co., & A. R. R. 238 U. v. C. City Gunning Mo. Louis, of St. Co. v. 67.; St. Louis Ry. B. Q.& Co., 339; Mo. Pac. C. 99; State v. Gray Dis 561; R. 200 U. S. Illinois, R. v. Reclamation Washingtonian Chicago Home, Pac. trict, 206.] 289 Ill. *23 governmental as a conclude that the defendant
We agency individual, more than an of the done no State has might collectively, have done or a number of individuals plaintiffs;. incurring liability the con- without alleged circumstances under the struction of its police legitimate State; was a exercise damage injury alleged sustained within not provision; meaning that, of the constitutional statutory defendant dis- the absence authority, trict not liable. judgment con- Seddon, G., be affirmed. should
curs. foregoing opinion PER CURIAM: The Lindsay, Ragland, R. adopted opinion the court.
C., as the J., Ahvood, concur; J., and Woodson, JJ., and Graves sitting.