Drainage District No. 19 v. Arcadia Timber Co. , 315 Mo. 597 ( 1926 )

This is a suit in equity brought by plaintiff drainage district to fix a lien for $35,000 upon nearly 6,000 acres of land in Dunklin County. Plaintiff stood on its third amended petition, which alleges that the drainage district, appellant herein, was duly organized by the county court under Article 4, Chapter 22, Revised Statutes 1899, and the amendment thereof found in the Laws of Missouri of 1905, page 180, for the purpose of constructing and maintaining drainage ditches; that after the organization of said district bonds thereof were issued and sold in the amount of $106,374.45; that respondent Arcadia Timber Company had large bodies of land situated within the exterior boundary lines of said district; that said district was organized and its ditches were constructed for the purpose of draining and reclaiming all of the lands within its said exterior boundary lines; that said ditches are now constructed on and across the lands of said respondent, and that by reason thereof said lands, which were formerly worthless for agricultural purposes, are now and in the future will be greatly increased in value and usefulness. The petition further recites the fact that through mistake or inadvertence the report of the viewers and engineer showed the Arcadia Realty Company, instead of the Arcadia Timber Company, as the owner of said respondent's lands within the exterior boundaries of said district, and that the Clerk of the Dunklin County Court erroneously directed notice to the Arcadia Realty Company, and that by reason of such error the Arcadia Timber Company refused to pay the assessment of drainage taxes placed against its said lands. The petition then recounts two unsuccessful efforts, prosecuted to this court, to enforce payment of said drainage assessment, and appellant's theory of its present alleged cause of action is indicated in the following paragraph of the petition:

"Plaintiff further states that the aforesaid defendant, and the lands in question, have received many and lasting benefits from the improvements constructed and being constructed and maintained by the plaintiff; that it is now receiving many lasting and permanent benefits from said improvements so constructed, being constructed and maintained at an additional expense to other landowners and taxpayers of said district; all of which facts above recited are and were at the time well known to the aforesaid defendant; that the officers and stockholders of said defendant company have stood by and have seen all of said improvements made, which said improvements so made consist of ditches, drains and watercourses adequate to properly and permanently drain the lands of the district, and now being made, and now see and know that the same are being maintained at additional cost to other landowners of the district, and that they do not now nor have they ever made any protest against the same, and that by reason of such facts said defendant is justly entitled to pay its just proportionate part of the costs of construction and maintenance of the improvements from which it has received so many lasting and permanent benefits to its lands, and from which it, in the future, will receive and is now receiving."

It is further alleged in this amended petition that subsequent to the institution of this suit, to-wit, on or about September 22, 1919, defendant Arcadia Timber Company sold all of the land described in the petition, except about 400 acres, to defendant Hemphill Lumber Company, which sale is evidenced by written contract and deed of record showing that the former has agreed to hold the latter harmless against any judgment or lien on this land by reason of the improvements done by said drainage district. Judgment was prayed in the sum of $35,000, and the same was asked to be declared a lien against the lands described in the petition.

The defendants filed separate demurrers stating the following grounds:

"1. That there is a misjoinder of parties defendant in this cause.

"2. That plaintiff's petition does not state facts sufficient to constitute a cause of action against this defendant.

"3. That this court has no jurisdiction of this defendant.

"4. That plaintiff has no capacity to maintain this action."

The trial court sustained both demurrers and entered final judgment against plaintiff and in favor of both defendants, from which judgment plaintiff has appealed.

Appellant insists that the petition states a cause of action against defendants, but frankly admits that no authority directly in point can be found in this State. Appellant does cite some authorities, however, and reading these together with the petition in this case it is plain that appellant seeks to rest its alleged cause of action on the doctrine of estoppel. One of the citations is 19 Corpus Juris, pages 678 and 736, but the application of the doctrine of estoppel is there expressly limited to "irregularities" in drainage proceedings. On page 679 of 19 Corpus Juris we read: "So, where the commissioners failed to give notice of the time and place of letting contracts for the work, as required by statute, the landowners, by accepting the benefits of the work, are not estopped to raise the objection upon application for judgment and sale, although they did not proceed in equity to prevent the doing of the work under the contract." To the same effect is 19 Corpus Juris, page 736: "But no estoppel arises, nor does the landowner waive any rights, where the defects are jurisdictional, and the acts of the officer in levying the assessment are not merely voidable, but void." Again, the rule as to estoppel is thus enunciated in 21 Corpus Juris, pages 1207-8:

"In order to create an estoppel by the acceptance of benefits, it is essential that the party against whom the estoppel is claimed should have acted with knowledge of his rights, also that the party claiming the estoppel was without knowledge or means of knowledge of the facts on which he bases his claim of estoppel, that he was in-influenced by and relied on the conduct of the person sought to be estopped, and that he changed his position in reliance thereon to his injury."

The amended petition upon which plaintiff stood discloses a jurisdictional defect in the failure of the Clerk of the Dunklin County Court to direct notice to the "Areadia Timber Company," and in State ex rel v. Arcadia Timber Company, 178 S.W. l.c. 95 (not officially reported), this court held the defect fatal under Section 5587, Revised Statutes 1909, which required that the notice therein provided should be directed "by name, to every person returned by the engineer and viewers as the owners of every lot or parcel of land affected by the proposed improvement or any interest therein; and also by name, to all others whom [sic] it may in any manner be ascertained own such land, or any part thereof, or any interest therein, and also generally to all other persons, without mentioning their names, who may own such land."

The following language of the court in Manistee v. Harley,79 Mich. 238, is clearly applicable in the instant case:

"After the sewer assessment has been set aside as illegal and void, the city is not entitled to recover in assumpsit from a property owner such amount as the court may determine that he ought to pay, since the special share of a public burden which each person ought to contribute must be determined by some form of assessment on a uniform basis."

The amended petition upon which the cause was submitted obviously failed to state a cause of action, and the trial court properly sustained the demurrers. Ruling thus, it becomes unnecessary to review other defects suggested.

Judgment affirmed. All concur, except Graves, J., absent.