Campbell Lumber Co. v. Levee District No. 4

OPINION. STURGIS, J, — The plaintiff, although alleging that the defendant “is a body corporate organized and existing under and by virtue of the laws of the State [377] of Missouri,” attacks its corporate existence and right to construct this levee because it was not ‘ ‘ organized according to law.” The specific objection is that the notice required by section 5728, Revised Statutes 1909, in calling a meeting of the landowners to vote on the question, of doing the work according to the plans and estimates made by the engineer and assessor was not published as required by that section. Prom a reading of the method, of organizing such corporations by the county courts, it appears to us that the corporate existence of the defendant is in nowise dependent on the regularity of this notice or the method of voting or conducting this meeting. The corporation was already formed before this landowners meeting was called and was merely exercising its corporate powers in calling and holding such meeting. The failure to give notice required might affect the power of the corporation to levy and collect the taxes from the landowners in the district and such question might be raised in a suit to collect such taxes, or even to enjoin the doing of the work, by an interested landowner; but that is not before us for decision. We do hold, however, that one who is not a taxpayer in the defendant district cannot attack the legality of its organization or its corporate existence in this purely collateral action. In a suit to collect drainage taxes, the court, in State ex rel. v. Blair, 245 Mo. 680, 687, 151 S. W. 148, held that a collateral attack could not thus be made on the organization or corporate existence of a similar corporation formed under article 4, of chapter 41, Revised Statutes 1909, by alleging the unconstitutionality of section 5581, Revised Statutes 1909, or the failure to give the notice thereby required and said: “Defendant also asserts that the notice issued under said last-named section was irregular and insufficient in both form and substance. Neither of the issues thus tendered can avail defendant in this action, because a drainage district is a public corporation, and the legal [378] ity of its organization and the sufficiency of its corporate existence cannot he inquired into in this collateral action. [State v. Fuller, 96 Mo. 165; Catholic Church v. Tobbein, 82 Mo. 418; Burnham v. Rogers, 167 Mo. 17; School District v. Hodgin, 180 Mo. 70.] ’ ’ The notice there spoken of, however, is a notice similar to that required by section 5716, Revised Statutes 1909, of the chapter now in question, and relates to the formation of the corporation, which the notice required by section 5728, Revised Statutes 1909, does not. It is generally held that the legality of the organization of a public corporation cannot be collaterally assailed. [Barnes v. Missouri Valley Const. Co., 257 Mo. 175, 165 S. W. 723, 726, and cases there cited.] That these levee districts are public corporations is declared by statute, section 5714, Revised Statutes 1909. [State ex rel. v. Taylor, 224 Mo. 393, 469, 123 S. W. 892.] We need not, therefore, inquire further as to the sufficiency of the publication of the notice in question, although we think its publication was sufficient. And, it is also shown to be true in this case, as stated in State ex rel. v. Taylor, supra, that “this record shows that all of them (landowners) were actually in court in some form or other and participated at one stage or another in the proceedings.” ■ A few observations will suffice to justify the action of the trial judge in refusing to grant this injunction. A study of the physical facts disclosed by the plat will demonstrate this. The only relief at all justifiable would be to restrain the defendant from constructing that part of the levee deflecting along the Varner river above point “A.” That would not close up the gap between the two levees and we do not see how plaintiff would be much, if any, benefited. The court was not asked to compel the defendant to close up this gap by building its levee along the St. Francis river to connect with that of levee number 25. It would seem that if either district could be compelled to do this, a [379] point we do not decide, then, as district number1 4 was the first to organize and locate its levee,' number 25 is more properly the one which ought to do this. It is also shown that these two districts have adopted different methods of constructing levees, one of them making the embankment on the land side and the other on the river side of the excavation. There is no evidence as to which is the better. Defendant claims in argument that its method is far superior, but the point is that the two levees when constructed in these different manners cannot be joined without completely obstructing the excavated ditch carrying a large amount of surface and overflow water and causing same to be dumped on plaintiff’s and other lands. Again, we think that other things being equal, the district last organized, if either, should be made to conform to the prior one in the method of constructing the levee. It is conceded that plaintiff’s lands are swampy and largely covered with water in the absence of any levee. It is uncertain to what extent the building of both these levees, as proposed, will aggravate this evil. As plaintiff’s witness said, it does not make much difference whether the land is ‘ ‘ six inches wet or six feet. ’ ’ It is shown, that because levees are built on the Arkansas side of the St. Francis river also, the effect is to confine the waters to a channel and this raises the same two or three feet in high water. This would cause the waters to back up through the break in the levees to a greater extent. But, it is a matter of grave doubt as to what effect defendant’s levee has on this condition. The gathering together of the waters and casting same into this opening and onto plaintiff’s flat lowlands in greater volumes is due to levee number 25. Perhaps that part of defendant’s levee along .the Varner river aggravates this condition by not allowing the waters to spread out more, but it could do but [380] little damage in this respect without levee number 25 being built. Plaintiff bought this land after levee number 4 was located, but we have not given this fact much weight. Water must run somewhere and one who buys lands which are practically the bed of an overflow river cannot always demand that in draining lands more favorably situated the drainage system should be so constructed as to drain his lands equally with others more favorably situated. These drainage districts being public corporations, authorized by law to do this- character of work and formed partly at least under .the police power of the State and to promote the public welfare, must be given some discretion at least as to the method employed to accomplish their work. The courts go slow in administering their affairs or controlling the methods adopted in doing their work. What rights plaintiff may have in another action we do not say. There is a class of remote and consequential damages to property flowing from making public improvements which are regarded as damnum absque injuria. [Funke v. St. Louis, 122 Mo. 132, 26 S. W. 1034; Vam De Vere v. Kansas City, 107 Mo. 83, 17 S. W. 695; Northern Trans. Co. v. Chicago, 99 U. S. 635; 25 L. Ed. 336; 20 Am. & Eng. Ency. of Law (2 Ed.), 1192, 1193.] It is sufficient in this case to hold that the injunction asked should not be granted. The judgment of the trial court will, therefore, be affirmed. Robertson, P. J., and Farrington, J., concur.