275 S.W. 44 | Mo. | 1925
Lead Opinion
A general demurrer was sustained to the petition of plaintiffs, who sought to enjoin the defendant drainage district and its supervisors, and the contractor, from constructing a levee, which, pursuant to the plan of drainage adopted, would bisect plaintiffs' lands, leaving part thereof between such levee and Grand River, and a part on the opposite side of the levee from Grand River.
The petition alleged that the defendant drainage district is a drainage corporation, incorporated by decree of the Circuit Court of Chariton County, under provisions of Article I, Chapter 28, Revised Statutes 1919; that part of the lands of plaintiffs were attempted to be included in said district, alleges ownership by plaintiffs of 210 acres of land; that the levee to be constructed will run north and south, upon the east side of Grand River, and will divide plaintiff's land, leaving eighty-five acres east of said levee and within said drainage district, and leavng 125 acres on the west side of said levee, and of said drainage district — that is, between said levee and said river; that plaintiffs' home and improvements are located on said 125 acres and that no means are provided under the plan adopted for connection between said lands so to be divided. *176
However, in setting forth the facts charged, those just indicated, and those as to the proceedings had by the circuit court and by the commissioners in the assessment of damages, we use the language of the petition, which upon that subject runs as follows:
"That defendant drainage district was organized for the purpose of drainage and leveeing certain lands in Chariton County, Missouri, in which district part of the lands of plaintiffs aforesaid were attempted to be included.
"Under the plan of reclamation adopted by said district for improving the lands in said district a large levee is provided and ordered constructed to prevent and keep the overflow waters from Grand River and other streams from coming on the lands in said district; a large part of the lands of plaintiffs aforesaid are and will be located and placed outside of said levee and between said levee and Grand River, and under the plan for reclamation as adopted by defendant drainage district the said levee will run north and south through plaintiffs' said lands aforesaid and divide said lands on each side of said levee, placing about eighty-five acres thereof on the inside and east of said levee and within said drainage district, and about 125 acres of plaintiffs' said lands, on which is situated and located the home and other improvements, on the outside and west of said levee and drainage district and between said levee and Grand River, with no means provided for connection between said lands so described.
"That by dividing and separating plaintiffs' lands as aforesaid, by the said proposed levee, plaintiffs' lands will be greatly damaged and depreciated in value; that the commissioners appointed to assess the value of lands to be taken for right of way of said levee and to assess the damages to the lands by reason of putting the plan for reclamation into effect did not consider or determine or find whether such lands of plaintiffs were damaged or not, nor did they allow plaintiffs or their said lands any prejudicial or consequential damages on account of *177 the construction of said levee over and across said lands and the dividing of said lands as aforesaid, although said lands will be, as stated aforesaid, greatly damaged on account of said levee and the putting into operation the said plan for reclamation and the improvements therein, the fact of such damages was not found or determined by them either way; nor did the court in confirming said commissioners' report allow any such damages which will accrue to plaintiffs' said lands as aforesaid, nor did the court in rendering its judgment in confirming said commissioners' report hear any evidence on the question of whether there were any such damages, nor that fact presented to, heard, passed upon or determined by the court on the hearing and determination of such report.
"Plaintiffs say the only damages allowed to plaintiffs and their said lands on account of the constructing of said levee and other improvements in defendant district, was for the land actually taken for the right of way for the said levee, but no prejudicial division or consequential damages were considered or allowed by reason of the constructing and location of said levee over plaintiffs' said lands, when, as alleged, said lands will necessarily be greatly damaged and the value depreciated by reason of being so divided and cut into by said levee and on account of the greater part and most valuable land, with the improvements thereon, being placed outside of the levee and between the levee and the river; as a result of which the said lands will be ruined for agricultural purposes and the market value thereof so greatly reduced that it cannot be sold, in fact it will have no market value or rental value whatever after said levee and other improvements called for in said plan for reclamation adopted by defendant district is constructed and put into operation."
After alleging that defendant, McWilliams Dredging Company, under its contract with the defendant drainage district, is preparing to enter upon plaintiffs' land to construct the levee, the petition continued: "Plaintiffs *178 say that under the statute and laws under which the defendant drainage district was organized and is now operating, it was and is the duty of defendant district to provide for and pay not only for the land actually taken for the said levee but to also allow, provide for, fix and pay all the other damages which would accrue to plaintiffs' said lands by reason of the taking of said lands for said levee and other improvements therein.
"Plaintiffs say that under Section 21, Article II, of the Constitution of Missouri, it is provided that private property shall not be taken or damaged for public use without just compensation, and until such compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.
"Plaintiffs say, under the said laws aforesaid and the above provision of the Constitution, that neither of the defendants can go in and on said lands of plaintiffs until the said consequential and prejudicial damages which will accrue to plaintiffs' said lands shall have been fixed and paid to plaintiffs; that not only the value of the lands taken shall be first fixed and paid, but also all the damages which will accrue to said lands shall be fixed, determined and paid before the said land or the proprietary rights therein, of plaintiffs, can be divested or taken.
"Plaintiffs say that if defendants or either are permitted to go on said lands of plaintiffs and construct said levee and other improvements thereon, as called for by the said plan for reclamation, irreparable injury and damage will be done to and accrue to plaintiffs' said lands."
Plaintiffs have brought the case here upon appeal on the theory that under the Constitution (Sec. 21, Art. II) damages resultant from the taking of their land for a public use must be ascertained and paid before their proprietary rights in the land are divested, or can be disturbed; that there are consequential damages incident to the taking and construction of the levee which have *179 not been assessed nor paid to them; that therefore, title has not passed, and that payment of all damages being a condition precedent to divesting the plaintiffs' right in the lands, and to the right of the district to take possession, the district, as the condemning party, may be restrained from taking possession until such damages are determined and paid. There is no allegation that the damages which were allowed have not been paid in for the use of plaintiffs.
Where no part of the property of the landowner is taken for a proposed public use, and his property rights therein are not disturbed, and the damage to his property is purely consequential, he is not entitled to have such damages ascertained and paid in advance of the prosecution of the proposed work. [Clemens v. Ins. Co.,
Under the drainage law, as well as under the Constitution, damages resulting from the taking of lands for the use of a drainage district are required to be found and paid in advance. [Secs. 4390-4405, R.S. 1919; Drainage District v. Ham,
The forum and the manner of proceeding therein for the ascertainment of the damages in condemnation of lands by defendant drainage district, are prescribed by *180 Article I, Chapter 28, Revised Statutes 1919. It is plain from a reading of the petition in this case that the sole basis of plaintiffs' claim is what the petition terms "consequential damages." The petition shows incorporation of defendant district, adoption of a plan of reclamation, and the proposed construction of a levee; that the levee bisects plaintiffs' land, leaving part out of the district and next to the river, and part within the district; that commissioners were appointed, acted, and filed a report in the assessment of damages; that the report was confirmed by the circuit court, and judgment entered thereon; that by the report and judgment there was an allowance to plaintiffs of damages on account of the construction of the levee, "for the land actually taken for right of way for the said levee," followed by the further statement that "no prejudicial division or consequential damages were considered or allowed" by commissioners, or court. There is the statement that the commissioners did not "find whether such lands of plaintiffs were damaged or not," followed by the statement: "nor did they allow plaintiff or their lands any prejudicial or consequential damages." After that again appears the statement that the court did not allow "such damages," and that there was not any evidence as to whether there were "such damages." There is further the statement that the fact that there were consequential damages was not presented to, nor heard by the court. The petition offers no reason why such fact was not presented to the court. The petition alleges that there was allowance of damages for the land actually taken. It does not disclose why plaintiffs did not file exceptions to the report of the commissioners. But, in alleging that the fact or claim of consequential damages was not presented to the court, plaintiffs must be held to mean that in said proceeding, to condemn part of their lands for a levee and fix all compensation which they should receive therefor, they presented no fact and no reason why no greater compensation should be allowed than that for land actually taken for right of way. *181
The plaintiffs make no attack upon the jurisdiction of the court over the subject-matter, or over the parties, plaintiffs, or others. There is no allegation of irregularity, except in the particular upon which it is sought to found this action. Since the petition alleges confirmation by the court of the report, we must assume that upon the filing of the report of the commissioners, property owners were notified thereof, and of their right to file exceptions, as is provided by Section 4391, Revised Statutes 1919. So much must be here presumed as to the action of the circuit court, a court of general jurisdiction. [23 Cyc. 1079.] The forum was provided, and the proceeding pending therein wherein plaintiffs were parties, and were required to litigate the very contentions which they make here. The ultimate purpose of the judgment was to authorize the taking of a part of plaintiffs' land, upon the condition of paying in advance of the actual taking, the price or sum fixed in the judgment. The petition shows such a judgment and shows there was an allowance of an amount to be paid. The essence of the contention here is that this sum, whatever it was, did not include consequential damages, and that the fact that there were consequential damages was not presented, and not considered. But, under what is said and what is left unsaid in this petition, we must hold that if the fact or claim for damages other or greater than the damages actually allowed, was not presented, it was through plaintiffs' own neglect or default in that regard. A party in the situation of a defendant in a proceeding, as these plaintiffs then were, must use the forum, and act in the proceeding, provided for the litigation of his contentions. It is urged here for plaintiffs that the defense of res adjudicata is an affirmative defense, and must be pleaded, and cannot be invoked under a general demurrer. That res adjudicata is an affirmative defense, is well settled. [Beattie Mfg. Co. v. Gerardi,
This statement of the law is set forth with approval in Spratt v. Early, 199 Mo. l.c. 501, and other authorities are cited in the opinion by Judge GRAVES to the same effect. This suit, in its essence and purpose, is upon an integral part of the same cause of action as that adjudged between defendant district and plaintiffs, by the circuit court, in its confirmation of the report of the commissioners, since it was upon the right to take a part of plaintiffs' land, and to fix the compensation to be paid therefor. The defense, which was pertinent to and involved in the issues there and was available to plaintiffs there, is attempted to be made the foundation for a claim for relief here. This cannot be done. We have considered the cases cited by counsel for plaintiffs upon the doctrine, that a former judgment is conclusive in a second action, only when the point raised was in issue, and was *183
adjudicated in the first suit. Those cases are not controlling here, because the point now raised and sought to be made the foundation of this action, was involved in the former proceeding, by its very nature and by statutory requirement, and might have been brought forward by plaintiffs, in that proceeding, by the exercise of ordinary diligence. The rulings made in Lynch v. Railroad,
Addendum
The foregoing opinion by LINDSAY, C., is hereby adopted as the opinion of the court. All of the judges concur. *184