269 Mo. 161 | Mo. | 1916
In that case it was held that the district was validly incorporated and the circuit court of Scott County was possessed of jurisdiction of all further proceedings to be taken in the case and the judgment of the circuit court, purporting to annul the incorporation of said district, was reversed and the cause remanded for further proceedings.
On the second trial it was shown that a board of supervisors was duly elected, which appointed a chief engineer and assistant; that a plan of reclamation was submitted to the board of supervisors, which will be adverted to in the subsequent discussion; that the board of supervisors filed a petition for the appointment of commissioners to appraise the land; that the regular judge of Scott County made an order in vacation appointing commissioners, who made a report of their acts and doings as such, which, together with the
We shall consider the questions thus presented in order. The present record shows a plan of reclamation reported by the body of engineers which was sufficient under the statute unless invalidated by the following suggestion therein, to-wit: “The report of the board of engineers recommended either condemnation of certain lands for storage, or • of non-assessment of these lands for benefits. ■ After full discussion the
The records of the drainage district show, by date October 20, 1913, that the board of supervisors passed upon the suggestion of the board of engineers above quoted and decided that the lands referred to should be assessed as other lands in the district and not condemned as a storage basin. This entry on' the records of the district was objected to for the reason that it appeared to have been written above an erasure of the name of the secretary. The testimony of the president of the board of supervisors was that he was present at the meeting referred to in that record of the proceedings and wrote' out the minutes of the meeting himself; that when he looked over the record subsequently he discovered that the clerk had not copied that part of the minutes in the record; that the omitted portion contained an order made at that meeting and that the records of the meeting were not complete until that order was written in; that he thought the correction was made the next day or soon afterwards; that after the correction the name of E. Lindsay Brown, Secretary, was signed, and a blank space left for the signature of the president.
We therefore hold that the learned circuit judge was in error in ruling, as he seems to have done, that the plan of reclamation in this proceeding was invalidated by reason of the insertion therein of the above quoted advisory clause and the temporary postponement of the consideration of it.
The plan of reclamation as adopted by the board of supervisors, including the modifications consented to by the chief engineer, was filed with the petition of that body for the appointment of commissioners. This identical plan, except the delayed action of the board of supervisors on the extrinsic suggestion made by the chief engineer above quoted, had been duly filed and certified to the circuit court. The petition thus filed prayed for the appointment of commissioners to appraise the land and the performance of other statutory duties. Such commissioners were subsequently appointed and duly reported their action to the circuit court and respondent, among other grounds, excepted to the damages allowed him in said report. It is, however,' insisted by the learned counsel for respondent, among other objections to the petition filed for the appointment of commissioners, that it does not show that the district made an effort to agree with respondent for the sale of the right of way over his land. In support of that contention respondent cites the statute (R. S. 1909, sec. 2360) relating to proceedings to condemn lands by telegraph, telephone and railroad corporations, etc., and the adjudications thereon. The section of the statutes regulating proceedings in the establishment of drainage districts, provides for “following, as nearly as possible, the procedure that is now provided for by law for the appropriation of land and other property taken for telegraph, telephone and railroad rights of way.” [Laws 1913, p. 241, sec. 16.] But the Drainage Act does not require that it shall be alleged in any petition that an effort has been made to agree with the owner, nor is there any language in the act requiring an effort to contract with the owner antecedently to the filing of the petition for the appointment of commissioners. On the other hand, the
Other minor objections are urged to the report of the commissioners which seem not to have been noticed in the judgment of the trial court and which we think are without merit.
Our conclusion is that the judgment sustaining the exceptions of respondent to the report of the commissioners was erroneous. It is, therefore, reversed and the cause remanded for further proceedings not inconsistent with this opinion.