216 Mo. 709 | Mo. | 1909
This is a proceeding under article IV, chapter 122, Revised Statutes 1899, and tbe amendments thereto, for tbe establishment of a drainage district and tbe construction of drainage ditches. Tbe proceeding was begun by filing a petition in tbe county court of Chariton county May 2, 1904. On tbe same date tbe petitioners gave bond as required by tbe statutes to cover tbe cost of tbe proceedings. On tbe filing of tbe petition and bond tbe county court, in conformity to section 8280, Revised Statutes 1899; Mo. Ann. Stat. vol. 4, p. 3917, made an order which was duly entered on tbe record appointing viewers (as they are called in tbe statute) and a civil engineer, with directions to them to view and survey, tbe route and make report to tbe court at its next session. It was
The viewers and the civil engineer qualified as the statute prescribed, and entered upon their work, which they completed and filed their report July 1, 1904. The substance of the report was that having done as they were directed to do they found the proposed improvement “necessary and practicable and will be conducive to the public health, convenience or welfare,” and the route given was as proposed in the petition, referring also to a map on file in court with the petition. On filing the report the court postponed the further hearing of the matter until July 23rd, and on that day again postponed it to the August term. At that term the court approved the report, designated the district as Drainage District No. 4 of Chariton County, ordered the construction of the work as prayed in the petition, and appointed the same men as viewers and engineers as had been appointed in the preliminary order, as provided in section 8284. In that order the court gave a more particular description of the route, following in detail the map on file which had been made by the engineer. The viewers made their final report to the
After the cause was lodged in the circuit court it came on for trial September, 1905, whereupon a jury was empannelled to try the issues. The judgment of the court, contains a recital that.the plaintiff introduced in evidence the record of the county court in relation to the matter “together with all original papers and documents pertaining thereto together with further evidence and thereupon the plaintiff rested its case. Whereupon the defendant mad.e certain proffers of testimony to the court and jury, which on objection was by the court excluded and the court having excluded all the evidence offered by the defendant because not pertinent to be considered on this appeal and not being within the limitations of the statutes governing appeals and having no further evidence to offer within the purview of the appeal, the plaintiff moved the court to discharge the jury and affirm the judgment of the county court which motion is by the court sustained. Wherefore,” etc.
I. Although the appellant was duly notified of the pendency of this proceeding yet it took no part in it until after the final report of the viewers and then it complained only of the benefit assessment against it.The county court overruled the exceptions but reduced the assessment from $1,375 to $825, then appellant appealed.
A right of appeal is one given by statute and in order that a party may avail himself of the right conferred he must conform to the requirements of the enabling statute. The General Assembly might, if it had seen fit to do so, have made the judgment of the county court in such case final and allowed no appeal, in which event the judgment could be attacked only either directly for fraud, or collaterally on the ground that it was void on its face. In this kind of proceeding the statute gives an appeal, but it prescribes the method to be pursued in taking the appeal and limits the questions that may be litigated in the appellate court. The General Assembly has been careful to express the limitations on this right, ánd also on the scope of the litigation after the appeal is taken, saying who may appeal, when and how the appeal may be taken, and what questions may be heard by the circuit court when the cause reaches that court. When we notice the' changes or amendments that have been made in the statutes on these points we see that the General Assembly has acted with deliberation.
In 1905 the section was again amended, so that instead of the persons or corporations who might file
Thus we see that the General Assembly has with great particularity limited the subjects to which the exceptions may relate, has limited the right of appeal to the ruling of the court on those exceptions and limited the questions to be considered by the circuit court on the appeal.
The exceptions filed by appellant contained three specifications, to-wit:
“First: Because its said right of way is not used for residence or agricultural purposes and is not benefited and cannot be benefited by preventing overflows in said stream as residence and agricultural lands may. be, should said ditch prevent such overflows. Its assessment of benefits as returned by said viewers is, therefore, and for that reason, out of proportion to assessments of benefits to residence and agricultural lands, and is excessive.
“Second: Because the size of said proposed ditch is insufficient to prevent the overflows of said stream, and for that reason cannot on any theory benefit its said property in any way or in any amount whatever.
*718 “Third: Because of the frequent interruptions heretofore to travel and traffic on its said line of railroad in consequence and by reason of overflows in said stream, it has, at its own expense and cost, by a large outlay of money, built a very heavy, high embankment and trestle along and over that part of said track above mentioned, so that it is in that way and by reason thereof, fully and amply protected from overflow and interruption of traffic in its said line of railroad from said stream, and cannot and will not therefore be benefited in any sum whatever by the construction and opening of said ditch.”
The first of those specifications signifies that for the reasons therein stated the assessment of benefits against appellant’s lands is excessive. That is the only point in the exceptions that could with reason be claimed to come within the scope given by the statute; it may perhaps be considered as an “exception to the apportionments,” but it cannot be considered as an exception to “any claim for compensation or damages.” The second specification is only to the effect that the ditch as proposed is not big enough to do any good to appellant’s lands, and the third is that appellant has already protected itself and does not need any other protection. When the court overruled the exceptions appellant appealed. But the statute requires one appealing to specify in his application in writing the matter he appeals from, and that application is to be made a matter of record by being spread on the record of the county court. But appellant did not do that, it did not in its application state from what order or judgment of the county court it appealed.
The statute requires that the appellant make the affidavit required in ordinary cases of appeal from the circuit court, and that much of the requirement is here complied with, the affidavit says the appeal is not “for vexation or delay, but because this affiant believes that said appellant is aggrieved by the finding
The specification of what particular order or judgment of the court the party proposes to appeal from is very essential in this statutory proceeding, because there are only two questions in the whole proceeding that can be reviewed on appeal, first, whether compensation has been allowed for property appropriated, second, whether proper damages have been allowed for property affected by the improvement; why therefore should an appeal be allowed if it is not to bring up for the consideration of the appellate court one or both of the only two questions that can be considered on the appeal? For example section 8284 requires that “if the county court shall find that the proposed ditch or other improvement is necessary for sanitary or agricultural purposes, or would be of public utility or conducive to the public health, convenience or welfare,” it shall spread that finding on the record, and make an order appointing commissioners, etc., and proceed to other steps looking to the estab
Nor could the circuit court on such an appeal decide the question whether or not section 8285, authorizing the viewers to assess damages and benefits, was in violation of article III of our State Constitution as appellant now contends. Nor was appellant deprived of a constitutional light of trial by jury, as it claims it was, when the court discharged the jury and rendered judgment affirming the judgment of the county court, because the court on the face of the record would have been justified in dismissing the appeal.
When the cause reached the circuit court appellant made no effort to litigate a question of compensation for property appropriated or damages for property affected, but apparently relied on the same grounds it now relies on in this court, that is, that the whole proceeding is void. When appellant took that position the circuit court discharged- the jury and affirmed the judgment of the county court. It would have been more regular if the court had dismissed the appeal, but since dismissing the appeal would have had the effect of leaving the judgment of the county court in full force the affirming of the judgment by the circuit court has practically the samé effect, therefore it will not be disturbed.
Judgment affirmed.