Elsberry Drainage District v. Meyer , 277 Mo. 439 ( 1919 )

WHITE, C.:

The appeal in this case is from an order of the circuit court of Lincoln County extending the boundaries of the Elsberry Drainage District and changing the plan of reclamation in said district.

The Elsberry Drainage District had been organized and in November, 1913, it filed in the circuit court of Lincoln County its petition, under Section 40 of the Act of 1913 (Laws 1913, p. 254), praying for a change of plan of reclamation and extending its boundaries. Objection to tbe petition was filed by appellants herein who were owners of tbe land in tbe territory songbt to be annexed. Evidence was beard and tbe prayer of tbe petition sustained, judgment entered accordingly, and commissioners appointed by tbe court to appraise tbe property to be taken and assess benefits and damages and estimate tbe cost of improvements occasioned by tbe change of plan and tbe extension of boundaries, and to make due report to tbe court. Tbe objectors, appellants here, thereupon appealed from that judgment.

All of this is shown by tbe abstract of tbe record filed by tbe appellants. The respondents have filed’an additional abstract of tbe record showing that tbe commissioners appointed by tbe court afterwards filed a report assessing tbe benefits and damages to tbe parties concerned; that tbe appellants filed objections and exceptions to tbe report of commissioners, took change of venue from Judge W. B. Woolfolk, and Judge Barnett was then called in to try tbe case. He found that all tbe objectors were in court, beard tbe evidence, overruled all tbe objections and exceptions, and found that tbe commissioners’ report of assessments and benefits against each of the tracts to be included was equitable and just. Each of the objectors who had appeared and filed objections, excepting one, agreed and consented that tbe assessments against tbe said tracts of land for tbe benefits were equitable and just. Tbe court then entered an order and judgment against each tract, for benefits, in accordance with tbe amended report of tbe commissioners. This additional abstract of tbe record also shows that tbe amounts awarded as damages was paid by tbe district and received by a majority, if not all, of tbe objectors.

Respondents filed herein a motion to dismiss tbe appeal on tbe ground that tbe judgment appealed from is not a final decree and not a judgment from which an appeal would lie to this court. Appellants filed a motion to strike out respondents’ additional abstract of record because tbe matter contained therein is no part of tbe record in tbe case appealed and'tbe subject is rmt germane to tbe record.

Tbe Act under which tbis proceeding was brought, Section 16, p. 241, Laws 1913, has tbe following provision, p. 242:

Appeal “Any person may appeal from tbe judgment of tbe court and upon such appeal there may be determined either or both of'the following questions: “First, whether just compensation has been allowed for property appropriated; and, second, whether proper damages have been allowed for property pre-judicially affected by tbe improvements.”

Tbis provision appears in tbe conclusion of section 16, wbicb provides for tbe filing of exceptions to commissioners’ reports and tbe bearing and judgment thereon.

Tbis court, after an exhaustive review of tbe authorities construing that provision and tbe amendments of it, as they have appeared in tbe statutes from time to time, held that an appeal will not lie from an order incorporating a drainage district so as to enable tbis court to review alleged error committed in such proceeding. [In re Drainage District, Buschling v. Ackley, 270 Mo. 157.] An examination of that case and tbe authorities cited will show tbe reason for that interpretation of tbe statute quoted, wbicb appears in that part of tbe Drainage Act relating to tbe formation of a district. Tbis proceeding is brought, under Section 40 of tbe act, to extend boundaries and change tbe plan of reclamation of tbe district. Section 40 provides for tbe appointment and report of commissioners and tbe assessment of benefits and damages in tbe same manner as in tbe formation of tbe district under Sections 12 and 14 of tbe act, and proceeds (p. 255):

“The case shall be proceeded with in tbe same manner as is now provided for in tbe previous sections of tbis act for the organization of drainage districts.”

That applies to the provision relating to appeals. Accordingly, the appeal in this case is from a judgment from which no appeal lies.

The appeal is dismissed.

PEE CURIAM: — The foregoing opinion by White, C„ is adopted as the opinion of the court.

All the judges concur.