Opinion
No. 21518.
October 1, 1951.
APPEAL FROM THE RAY COUNTY CIRCUIT COURT, JAMES S. ROONEY, J.,
Wilson D. Hill, Richmond, Harry A. Hall, Kansas City, for appellants.
W. A. Franken, Wade W. Maupin, and John Franken, all of Carrollton, for respondents.
From a decree of the Circuit Court of Ray County, Missouri, authorizing the extension of the boundaries of the Ray County Levee District No. 2 of Ray County, Missouri, the objectors have appealed.
The District was originally organized in 1910 by the County Court of Ray County, in which county most of its area was located. Statutory steps were thereafter taken to perfect the organization and, according to a Plan of Reclamation adopted, a levee and drainage system was constructed and has since been maintained along the south, west and east boundaries of the District area to protect the same from the Missouri and Crooked rivers. The District comprised 2617 acres in Ray and Carroll counties, and was approximately four miles in length and ranging from about a half mile to nearly a mile in width.
On February 16, 1948, upon the filing of Articles of Association and a petition in the Circuit Court of Ray County, that court decreed the reorganization of the District under Article 7, Chapter 79, R.S. Mo. 1939, R.S.Mo. 1949, § 245.010 et seq., authorizing such proceedings in the circuit court, and the District was so reorganized under the same name and with the same boundary lines. Thereafter and upon statutory notice, a new Board of Supervisors was elected, which chose its officers and employed an engineer, who prepared a "Plan of Reclamation", which included a recommendation that the boundaries of the District be extended. The Plan was adopted by the new Board of Supervisors and filed with the county clerk of Ray County October 1, 1949.
On the same date, October 1, 1949, the District filed a petition in the above court for an extension of the boundaries as recommended by the Plan of Reclamation and for the appointment of commissioners to assess damages and benefits to the lands in the District and those included in the proposed extension, and asked for approval of the Plan of Reclamation. After notice to the owners affected, objections were made by the appellants which were heard by the court, resulting in a finding that the facts stated in the petition are true, and a decree extending the boundaries as prayed, retaining jurisdiction to appoint commissioners as aforesaid. In the decree the court found, among other things, that all of the land described in the petition would be benefited and protected from overflow by the execution of the Plan of Reclamation adopted by the District; that the Plan is necessary for that purpose, and that it was necessary to protect the land within the original boundaries of the District. The court further found it would be unfair to compel the owners of the original district to bear the cost of the execution of the Plan without contributions from owners of other lands benefited; that all of the land described in the petition is one contiguous body of wet, swampy, or overflow land, or land subject to overflow. The finding of mutual benefit and necessity over the large areas involved was a sufficient finding of public necessity and welfare. The court refused the motion of the objectors to set aside the decree and grant a new trial, and the present appeal ensued.
The objections to the proposed extension of the boundaries, in substance, were that the Plan is impractical, improvident, and unnecessary; that it is an illegal and unsound interference with the natural drainage of the area already adequately served by other drainage districts; that the new area is not a contiguous body of wet, swampy or overflow lands, or lands subject to overflow, as alleged; that the total cost would be $90,000, exclusive of damages, costing the landowners $30 an acre, which would be confiscatory and excessive; that it would be a block to the natural drain of Snowden Lake, causing water to be impounded and to flood the new area already adequately drained; it would not benefit the area; that the majority of the property owners oppose it; that the Plan is a change of an existing Plan of Reclamation and was not authorized, and for which the District had no legal authority from the court.
It is evident that if the Plan approved by the decree and on which it was based was never legally adopted the judgment extending the boundaries therefor cannot stand. On this point the appellants contend that the original Plan of the District embraces an area of 2617 acres, mostly accretion lands bounded on the south by the Missouri River and on the north by a high bench from which the Missouri River has shifted, and which separates the old area from the new area; that the old area naturally drains to the east and south to the Missouri River; that the proposed new area comprises 3071 acres adjoining; that the new area drains to the north and east of the bench and naturally into Snowden Lake and through other drainage courses into the Missouri River; that the area to the west and north are protected by a levee along Crooked River maintained by another district and by the levee of the Norborne Drainage District; that the new Plan would require an enlargement of the levee and the building of a floodway or reservoir of Snowden Lake, a tie-in with the levee of the Norborne Drainage District, and other drainage changes from the old Plan; that the new area is composed of rich, fertile farm lands and is not a contiguous body of swampy, wet or overflow land, or land subject to overflow, or wash erosion, as required by the statute.
Thus, appellants assert that the present proceeding is not merely one to extend the boundaries of the District, but is one to change or amend an existing Plan of Reclamation, to which the appellants, consisting of the owners of 2548 acres out of 5688 acres in the entire area, and who claim not to be benefited by the Plan, object. They argue that when the District was reorganized, its original Plan of Reclamation remained in effect; that if reorganized, the District could acquire its proposed plan only under Section 12532 of Article 7 of Chapter 79, R.S.Mo. 1939, R.S.Mo. 1949, § 245.140, which requires a petition for a change of a Plan of Reclamation, with notice thereof and a hearing thereon, which requirements were ignored by the respondents.
The respondents firmly insist that the Plan is not a changed Plan but is the original Plan of Reclamation of the reorganized organized District; that this proceeding is not one to change or amend a Plan of Reclamation; that after the adoption of the Plan the reorganized District followed the statutory requirements, among which was the adoption of the Plan of Reclamation in question, after which it properly brought the present proceedings to extend the boundaries of the District.
Section 12541, contained in Article 7, Chapter 79, R.S.Mo. 1939, R.S.Mo. 1949, § 245.045, pertaining to reorganization of levee districts by circuit courts, provides: "Any levee district heretofore organized * * * may organize under the provisions of this article, and after so organized shall be entitled to the benefits of all of the provisions of this article." It provides, among other things for the filing of Articles of Association by the owners of a majority of acreage in any existing levee district, containing the same name, the same boundaries, and stating the years the District is to continue, accompanied by a petition that the lands in the area be declared a levee district under the above section, article and chapter. Under Section 12542, R.S.Mo. 1949, § 245.050, notice is required of the filing of such Articles of Association and petition and of a date fixed for the hearing of objections to such reorganization. Section 12543, R.S.Mo. 1949, § 249.055, states that: "After said notice has been so given the matter shall be proceeded with in the same manner as is provided for where articles of association for the formation of a levee district have been filed."
Accordingly, after the decree of reorganization, the election of a Board of Supervisors on notice, Sec. 12496, R.S.Mo. 1949, § 245.060, the election of officers, Sec. 12501, R.S.Mo. 1949, § 245.080, the appointment by the Board of an engineer to prepare a Plan to carry out the reclamation of the land in the District or adjacent thereto, Sec. 12502, R.S.Mo. 1949, § 245.100, the next step under Chapter 79 is the adoption by the Board of such Plan or a modification thereof as its "Plan of Reclamation". Thereupon such Plan is to be filed with the circuit clerk, Sec. 12505, R.S. Mo. 1949, § 245.110; commissioners are appointed to appraise the damages and benefits, Secs. 12506-7, R.S.Mo. 1949, §§ 245.115, 245.120, and a date is set for a hearing of objections to the report of the commissioners, Sec. 12508-9, R.S.Mo. 1949, §§ 245.125, 245.130. For a mere change of an existing Plan the procedure is provided in Section 12532, R.S.Mo. 1949, § 245.140.
It appears from a consideration of all such statutes that from and after the notice was given under Section 12543 of the filing of Articles of Association and a petition to reorganize the respondent District, under Article 7, Chapter 79, the next step following the decree granting the reorganization and the election of supervisors and officers with the appointment of an engineer, was the adoption of a Plan of Reclamation, which was done. Such Plan, when so adopted, became not a change of the Plan in effect under the old organization, or of any other existing Plan, but constituted the original Plan of Reclamation of the reorganized District. It was not required to be established by the procedure for a change of Plan by Section 125.32. The proceeding in which the appeal is here taken is one to extend the boundaries of the reorganized District, and the Plan on which it is based is the only Plan of Reclamation of the reorganized Ray County Levee District No. 2 of Ray County, Missouri. Therefore, that Plan was legally adopted by the reorganized district and approved by the court.
Appellants next contend that the court had no jurisdiction to extend the district boundaries because the evidence failed to show that the new area proposed is a contiguous body of wet, swampy, or overflow land, or land subject to overflow, wash or bank erosion, or that the extension is a matter of public necessity, convenience or welfare, as required by Section 12492, R.S.Mo. 1939, R.S.Mo. 1949, § 245.015. The district engineer had been over the area in flood periods, had prepared his report from a combination of surveys made by him and his staff and from state geological surveys, and from those made by the corps of engineers of the United States Army. As a witness for the respondents he was asked: "Now, you are not telling the court that the area north of the old district is a contiguous body of swampy and wet land, are you? A. I am saying that it is a contiguous body of swampy, wet or overflow land or land subject to be overflowed." He said that some of the land was good, fertile farm land, but that such as was high enough not to be inundated in high water would suffer from isolation from surrounding areas under water. He was asked if the proposed plan was necessary for the health and agriculture of both the old and the proposed areas. He answered: "I think it is very essential for that purpose."
There were other witnesses for the respondents whose testimony tended to prove that breaks occurred in the present levee on the south of the district, and that there were low points in the bench forming the present north boundary of the district, and that there were other points in the present system through which flood waters can pass and have caused high waters to pass from the old area to the new, or from the new area to the old, as in 1943, 1944, and 1947; that if flood waters should now reach the height to which it went in 1947, from 40 to 50 percent of the new area would be flooded.
On the other hand there was substantial evidence tending to prove that, in general the new area is higher than the old, contains much fertile farm land, adequately drained, would naturally drain away from rather than toward the old area; that the Plan contemplates making a reservoir of Snowden Lake, for the sole benefit of the old area; that there is no need for protection to such area by the proposed Plan; that neither area is in danger of flood if the present district levees are properly maintained and natural drainage is not interfered with.
It was a question of fact for the court to determine whether the appellant's lands should be included in the district and whether they were benefited by the Plan of Reclamation. On those issues we are confronted with conflicting testimony. It was said in Sibbett v. Steele, 240 Mo. 85, 95, 144 S.W. 439, 441; "Whether the lands of the objectors will be benefited, and whether they are properly included within the district, are questions of fact which were tried out before the court upon testimony pro and con. The judgment of the trial court is supported by substantial testimony, and therefore should not be disturbed in this court." See, also, Gossett-Warner Drainage District v. Griswold, 225 Mo.App. 1040, 16 S.W.2d 691, 699. Under the record and the above authority, we defer to the finding of the trial court that the lands of the proposed new district are a contiguous, wet swampy overflow land or land subject to overflow, in the sense of the statute, to be benefited by the Plan and that the extension is a matter of public convenience and welfare. The witnesses were many, their testimony copious and the trial was most ably conducted by both court and counsel. Finding no error in the record the decree is affirmed.
All concur.