author: WOODSON, J.

text:
    In Re LITTLE TARKIO DRAINAGE DISTRICT NO. ONE v. JOHN D. RICHARDSON et al., Appellants.
    In Banc,
    July 15, 1911.
    1. DRAINAGE DISTRICT: Change of Venue: Appointing Commissioners, Etc. Where a change of venue was granted before the incorporation of the drainage district on account of the prejudice of the judge, and another circuit judge was called in, who heard the objections and entered a decree organizing the district, the regular judge who was disqualified did not thereafter have jurisdiction to appoint commissioners to assess damages and benefits, nor to hear exceptions to their report filed by land-owners. The judge or circuit court having once lost jurisdiction by a change of venue, does not regain it.
    2. -: -: -: Waiver. But if no objection is made by the land-owners, after such change of venue has been granted, to the appointment of commissioners by the disqualified judge or to his authority to act, until after the commissioners’ report is filed and evidence is heard upon exceptions thereto, then the land-owners will be held to have waived any objection to the court’s jurisdiction.
    3. -: Lands Taken: Jury Trial. The taking of land for drainage ditches is an exercise of the power of eminent domain, and on the coming in of the commissioners’ report showing certain lands have been taken for that purpose and that lands will be damaged by the construction of the ditches, the land-owner, upon the filing of written exceptions thereto, is entitled to a jury to determine the amount of such damages; and a denial of a jury trial in such case is error. IjTot so, however, with the benefits assessed. The judge has power, upon a hearing, to increase or decrease the assessments allowed.
    4. -: -: -: Judgment Suspended as to Benefits. Where a jury trial is demanded to assess damages for lands taken, and damages done to other lands not taken in consequence of the construction of the ditches, the judgment assessing the benefits should be suspended until the damages are ascertained by a jury trial; and then, if the benefits exceed the damages, the court should deduct the damages from the benefits; and if the damages exceed the benefits, judgment should be rendered for the excess.

      5. -: Damages for Land Takeni Constitutional Statute. See. 5516, R. S. 1909, is not unconstitutional and void. Read alone it might be held to limit damages only to the value of the land taken for a drainage ditch. But read in connection with the other sections of the same article, as it must be, damages may be assessed in the same manner as for lands taken or damaged for railroad purposes in condemnation suits, and that means that the land-owner is entitled to damages, not only for the lands actually taken, but also for all damages that may result, from such improvement, to lands not taken. Besides, even if there were no such statutory provisions, section 21 of article 2 of the Constitution is self-enforcing, and it provides for all such damages.
    6. -: -: Deducted from Benefits. Damages awarded the land-owner for land áctually taken by the drainage district may be deducted from benefits assessed against the land of which that taken is a part. That course is authorized by the statute, and the statute is not in conflict with the Constitution in that respect.
    7. -:-:-: Payment in Money: Discrimination. The Constitution does not require the damages for the land taken to be actually paid in money. They may be used to decrease benefits, or if they exceed the benefits, the benefits assessed may be used to reduce the damages awarded. And that is no such discrimination .against the land-owner whose land is actually taken, in favor of the land-owner whose land is not taken, as renders the statute invalid.
    Appeal from Holt Circuit Court. — Hoot. Won. G. Ellison, Judge.
    Reversed and remanded.

      H. K. White for appellants.
    (1) The proceedings under review were a continuation of the proceedings instituted to establish the drainage corporation. In those proceedings Judge Ellison had granted a change of venue and had disqualified himself, consequently he remained disqualified. Coltrave v. Templeton, 106 Fed. 370; In re "Williams, 123 Fed. 321; Tabell v. Griggs, 3 Page (N. Y.) 207. (2) The court should have granted a hearing before a jury. R. S. 1909, secs. 5513, 5518, 2361. (3) Under the Constitution, the proceedings are invalid because by Sec. 5516, R. S. 1909, only the cash value of the land taken is to be allowed in reduction of benefits, without allowance for incidental damages. Constitution, sec. 21, art. 2; Mills on Eminent Domain, secs. 1, 87, 128, 216; Lewis on Eminent Domain, secs. 10, 240, 607, 608; 2 Dillon, Mun. Corp. sec. 453; St. Louis v. Franke, 78 Mo. 41; Moss v. Railroad, 85 Mo. 86; Stuart v. Palmer, 74 N. Y. 183; Bridge v. Bridge, 7 N. H. 56; Bradshaw v. Rogers, 20 Johnson 103; Gardner v. Newberg, 2 John Ch. 162; Thacher v. Bridge, 18 Pick. 501; Eastin v. Amoskeag Co., 44 N. H. 143; Railroad v. Railroad, 2 Gray 1; Schmidt v. Densmore, 42 Mo. 225; Hanbeek v. Franke, 78 Mo. 41; Cox v. Tipton, 18 Mo. App. 150; Lindell v. Railroad, 36 Mo. 543; Admr. v. Railroad, 38 Mo. 483; Railroad v. Weaver, 10 Kan. 344; Parker v. Railroad, 13 Lea, 669'; Gutshow v. County, 105 N. W. 548; Hatch v. Reardon, 204 U. S. 160. (4) The statute is void for the further reason that it provides that the whole of the damage for land taken shall be deducted from the benefits as assessed instead of paying them in cash, and permitting the owner to pay benefits as levied after-wards as required of those whose lands are not taken. See cases under point 3. (5) The act is in violation of the Fourteenth Amendment to the Constitution of the United States, which provides that no state shall deny to anyone within its jurisdiction the equal protection of the laws. Railroad Co. v. Wright, 207 IT. S. 127; Russell v. Croy, 164 Mo. 69; Railroad v. Reynolds, 183 U. S. 476; In re Van Horne, 70 Atl. 986; Board v. Johnson, 89 N. E. 594.

      Franh Petree and II. B. Williams for respondent.
    (1). The fact that Judge Ellison disqualified himself for having formed an opinion on the merits involved in the original proceedings for the incorporation of the drainage district, did not disqualify him

      from, sitting at the hearing of exceptions to the commissioners ’ report in assessing benefits and damages. The questions involved in the original action for incorporation were: Is the land a contiguous body of swamp and overflowed lands in this state, situated in one or more counties? Does the land embraced in the proposed district contain more than six hundred and forty acres ? Are the articles of association signed by a majority in interest of the owners of the land included within the boundaries of the proposed district? Sec. 5496, R. S. 1909. Under the provisions of Sec. 5518, R. S. 1909, the judge of the court shall, in a summary way, hear and determine the questions contained in the commissioners’ report. The questions involved in the commissioners’ report relate to the amount of damages and benefits accruing to the lands and property in the drainage district in perfecting the plan for drainage adopted by the board of supervisors. In the proceeding for incorporation, the action was between the signing and non-signing landowners in the proposed district, and when the decree of incorporation was granted, a new person (a corporation) was brought into existence. Thereafter this new person adopted a plan for reclamation of the lands in the district, and filed its petition ashing for appointment of commissioners to assess benefits to carry out its plan of reclamation, and the filing of exceptions to the commissioners ’ report commenced an action between this new person (the corppration) and the exceptors. The parties in the original action for incorporation and in the action on exceptions to the commissioners’ report, were not the same. Neither were the questions involved in the original action for incorporation, and those involved in the exceptions to the commissioners’ report, the same. Therefore Judge Ellison-was not disqualified from sitting at the hearing of exceptions to the commissioners’ report. When the decree of incorporation was granted and the landowners met as required by law and elected a board of supervisors, and said board organized, that was an end of the questions involved in the question of incorporating the drainage district. Nothing remained to be done to bring that corporation into existence. It was then a corporation, both de facto and dé jure. (2) The court did not err in refusing to grant appellant a jury trial on the issues involved in the exceptions to the commissioners’ report. The drainage district is not seeking to take exceptors’ land in this action. Said district is not attempting, in this action, to exercise the power of eminent domain. It has only ascertained values as a basis of taxation for local improvements. A city takes property of a citizen for a public street under the power of eminent domain. It raises money to make compensation therefor upon property that is specially benefited by the improvement. There is no law, constitutional or statute, requiring the benefits to be ascertained by a jury. St. Louis v. Buss, 159 Mo. 12. Assessments for public improvements are regarded as a species of taxation, and property owners are not entitled to have the assessments for taxation by a jury. 24 Cyc. 133; Land Co. v. Miller, 170 Mo. 259; Heman v. Schulte, 166- Mo. 419; Nauman v. District, 113 Mo. App. 578.
   WOODSON, J.

This is the second appeal of this case to this court. The opinion, delivered when the case was formerly here is reported in the 227 Mo. 252, which is referred to as-forming a part of the statement of this case.

The case was begun in the circuit court of Holt county, in 1908, by T. G. Quinby and others against the appellants and others, by which they sought to have a certain body of land situated in that county incorporated into a drainage district.

The appellants owned several hundred acres of land in that vicinity, a part of which was embraced within the boundaries of said district.

• Appellants appealed from the award of the commissioners and filed a motion for a change of venue from Honorable Wm. C. Ellison, judge of that court, alleging prejudice on his part against them.

Subsequent to the filing of that motion, but prior to any action having been taken thereon, appellants also filed objections to the granting of a decree of incorporation as prayed.

A change of venue was granted and the Honorable P. H. Trimble, judge of the Seventh Circuit, was called in to try the cause.

A trial was had before the latter judge, which resulted in a decree incorporating the district. Prom that decree the appellants here were also the appellants in the former appeal.

After the incorporation of the district the parties interested duly elected a board of supervisors, as' provided by law. In due time this board filed in the circuit court, of said county, a petition, asking the Honorable Wm. C. Ellison to appoint commissioners to assess damages and benefits, which would result to the property owners by reason of said improvements.

After Judge Ellison had appointed the commissioners to assess the damages and benefits aforesaid, the board of supervisors undertook to enlarge the district and instituted proceedings to that end, also in the circuit court of Holt county. Thereupon the appellants filed, as I understand the record, a second application for change of venue from Judge Ellison, because of his prejudice.

This application was granted and this branch of the cause was sent to the circuit court of Andrew county, which proceedings for the enlargement of the district were heard and determined in that court, before Honorable A. D. Burnes, judge thereof.

Certified copies of the proceedings had in the Andrew County Circuit Court were transferred and filed in the cause in the circuit court of Holt county.

On July 18, 1910, Judge Ellison, in vacation, appointed C. G. Bostwick, E. L. Gaffney and Joseph Kite commissioners to assess the damages and benefits for the original and the enlarged district.

The commissioners, after having qualified as by statute provided, viewed the premises, assessed the damages and benefits, and duly reported their action to the court.

We omit the formal parts of the report, as they are not questioned. The total cost of the improvements was, by the commissioners, estimated to be $53,882.

The following quotation is taken from the statement of the case made by counsel for the appellants, viz.:

“The report and exhibits showed that the proposed ditch would be one hundred to .one hundred and twenty feet wide, would run in a general north and south direction, passing through appellants’ land described as the north half of section twenty, township 62, range 39. This ditch would enter these lands on the north line thereof, west of the north and south line of the section and then pass southeasterly till it reached the north and south line, and then pass south along the line into other lands within the district; thence beyond the southern line of the district, and empty into Big Tarkio Eiver, a mile or so south of the southern limits of the district.
“The report among other things, recited the following: ‘We went upon and over all the lands in said drainage district and we were accompanied by the secretary of the board of supervisors and assistant engineers of said district, and we have examined same . . . and we have made a calculation of the amount of land necessary to be taken and condemned for a right of way for the main drainage ditch, and for the laterals to be constructed over, upon and across each of said tracts of land. . . . We further report to the court that the following described tracts of land belonging to the parties respectively named, were found necessary to be taken and were taken and condemned for a right of way for main drainage ditch and laterals, aforesaid, to-wit:’ The report then proceeded to set forth the course and width of the ditch during its entire length. As to the appellants, the Richardson heirs, it described a strip of land fifty feet wide on each side of and measuring at right angles to center line of ditch, as shown on the plan for drainage- of said district, beginning on the north line of said section 20, township 62, range 39, and extending to the center of said section 20, and passing south along the center line of said section 20, until it passes south out of appellants’ lands.
“The report showed that the appellants were named as owners of the north half of section 20, township 62, range 39, containing 320 acres, situated within the limits of Little Tarkio Drainage District, and the commissioners’ report to this land found as follows:
“Total number of acres taken for right .of way, 6.06.
“Total damages allowed, $242.40.
“Total amount of benefits assessed, $8,633.35.
“Amounts of benefits assessed, less damages allowed, $8,390.95.”'

Upfin filing this report, the clerk of the court duly notified the parties interested, of that fact, and in proper time appellants filed exception^ to the same.

The exceptions so filed, and here presented, are as follows (formal parts omitted):

“1. That this court has no power or authority to appoint commissioners to assess the damages to these exceptions, or the benefits against them.
“2. That no notice whatever was ever given in any manner whatever of these proceedings, although Thomas O. Dungan, W. H. Eichards and-Schultz were residents of Holt county at the time of the institution of these proceedings and owned lands within said drainage district, which said lands have been assessed with benefits by these commissioners.
“3. And these exceptors now say that the statute under which these proceedings were conducted is unconstitutional and void for the following reason, to-wit: It -is provided by section 21 of article 2 of the Constitution of the State of Missouri, that private property shall not be taken or damaged for public use without just compensation.
“That article 3 of chapter 122, Eevised Statutes 1899, as amended from time to time, now known as chapter 41 of the Eevised Statutes for the year 1909, makes no provisions whatever for the ascertaining of damages to the lands of persons within the drainage district, but confines the authority of the commissioners to ascertaining the fair cash value of the lands necessary to be. taken and used for the right of way and improvements.
“That the proposed improvements cut off about ten acres of land belonging to these exceptors in the northeast corner of the northwest quarter of said section twenty, township sixty-two of range thirty-nine, from the remainder of said quarter section, and thereby damaged said quarter section in the sum of- one thousand dollars.
“That said proposed improvements separate the northeast quarter of said section twenty from the northwest quarter of said section, and such division of said half section causes damage to the land belonging to these exceptors in the sum of one thousand dollars, and no provision is made by which said damages or any part thereof can be ascertained.
“Wherefore, these exceptors say that these proceedings are wholly void and of no effect.
“That the said proposed ditch, in passing through the lands of these exceptors, passed through a part so located that the level water in said ditch at ordinary stages will be above said part of these exceptors’ lands, and at hight stages of water, said level will be far above the level of the lands of these exceptors, so that it will be perpetually in danger of overflow of said waters upon the lands of these exceptors. And that no provision of the statute in this case referred to has been made for the ascertainment of the damages to said land not taken, by the reason of the construction of said ditch in the manner and form aforesaid.
“Exception 2. And these exceptors further show that these proceedings are void for the further reasons that said drainage district has never employed any engineer to devise a plan of drainage and to report a plan for improvements, and to make a topographical survey of the lands within the district, and that no such plan or topographical survey has been made by any officer of the drainage district; and that the data used by the supervisors of said drainage district were not furnished by any engineer by it appointed.
“Wherefore, these exceptors pray that this report may be set aside and for naught held, and these proceedings finally dismissed.
“4. That section 5516, Revised Statutes 1909, under which the commissioners appointed have proceeded, is null and void, because it is in contradiction of the Fourteenth Amendment to the Constitution of the United States which provides that no State shall deny to any person within its jurisdiction the equal protection of the laws, in that said section attempts to provide that the damages to the citizens whose land within the district is taken for the purpose of the district shall be compelled to accept as satisfaction for such damages the benefits assessed to the full amount of the damages assessed, which benefits are only a~ basis for future taxation, and may not be required of persons whose property within the district is benefited but is not taken, and which property by said section is to be taxed for a series of years upon the benefit assessment; and because it attempts to compel the owner of land within the district to accept as satisfaction for said damages such benefits so assessed, as above stated; while, section 5513, Revised Statutes 1909, provides that persons owning land outside of the district, taken for the purpose of the district, shall be paid in cash.”

The exceptions were duly presented to the court and after hearing the evidence for and against the same, counsel for appellants asked five instructions, which are as follows:

“First. That the proceedings under consideration are ... to the original proceedings, resulting in a decree of corporation, and that the regular judge of the court who was disqualified in said original proceedings is not competent to hear and pass on the regularity of the proceedings under consideration at this term.
“Second. That the exceptors should have been granted a trial by jury as demanded by them, and no decree can be entered in this cause at this time.
“Third. That the statute of the State of Missouri assuming to define the duties and powers of the commissioners is void, being in contravention of section 21 of article 2 of the Constitution of the State of Missouri, in that it assumes to limit damages to the value of land taken and no decree can be entered in these proceedings.
“Fourth. That the said statute is in contravention of. said section 21 of article 2 of the Constitution of the State of Missouri, in that it assumes to direct that the damages assessed shall be deducted from the benefits assessed when such benefits are ascertained only for the purpose of a basis of assessment for taxes to be levied from year to year thereafter as might be found necessary, by the board of supervisors of the district and no decree can be entered in these proceedings.
“Fifth. That said statute of the State of Missouri is in contravention of the Fourteenth Amendment of the Constitution of the United States in that it denies to the owners of land within the district whose land was taken for the purpose of the corporation the equal protection of the law, in that it assumes to require the owner of said lands so taken to accept pay for the damages assessed on account of the value of the land taken, benefits assessed as a basis for taxation thereafter, while owners of land outside of the district which are taken for the purpose of the corporation are to be paid in cash, and that it assumes to require said owner of land within the district to accept or pay for the assessed value of their lands taken benefits to the full amount of such damages, while owners of land within the district whose lands are not taken or damaged are not required by said statute to pay only from year to year such taxes as may be levied by the board of supervisors upon such assessed benefits. And on account thereof no decree can be entered in these proceedings.”

Each and all of these instructions were by the court refused, and appellants duly excepted.

The exceptions to the report of the commissioners were overruled and the report modified and confirmed by the decree of the court.

The decree, in so far as is material to this appeal, is as follows:

“In the Matter of Little Tarkio Drainage District Number One. Report of Commissioners Assessing Benefits - and Damages, and Exceptions to the Same.
“Now on this Saturday, the 24th day of September, 1910, being the second day of the adjourned session of the regular August term, 1910, of this court, the above cause coming on for further hearing, come now the Chicago, Burlington and Quincy Eailroad Company in person, and the board of supervisors of Little Tarkio Drainage District Number One, by H. B. Williams and Frank Petree, its attorneys, and come also the landowners within the said district, who have filed their exceptions to the report of the commissioners herein, to-wit: T. C. Dnngan, W. H. Eichards, John W. Nauman, Jacob Nauman, Laura S.' Pebly, Joseph S. Nauman, J. H. Eoads, Mathew D. Eamsey, Mary Ehodes, Martelia Strong, George W. Shultz, and the Chicago, Burlington and Quincy Eailroad Company, in person and by their attorneys, and the court having heard the evidence in full and the arguments of counsel, and being sufficiently advised in the premises.”

[The decree then recites the-various acts of the officers of the drainage district, of which no complaint is here made. It names all the exceptors and proceeds as follows:]

“That no exceptions were filed to the said report by any owners of land or other property within the said district except those above named and hereinafter referred to; that in passing on the exceptions filed by the above named owners of land and the property within the district in the light of the testimony before the court, and in assessing the benefits, the court proceeds upon the following basis, namely: It will first ascertain from the. evidence the present value of each tract of land to which exceptions are filed, without regard to the ditch. It will then find from the evidence the actual value of the land occupied by the ditch, and also the damage - resulting to the tract from the condition in' which the ditch leaves it, and will deduct these two items from the actual present value of the land. This will represent wh$t the owner has left, after the construction of the ditch to be benefited by it. An additional deduction will be made in some cases where the land slopes from the ditch and for .that reason will require tiling or some similar work in order to get the surface drainage or benefits which land sloping towards the ditch gets without the necessity of tiling.
“As to the Richardson exceptors, to-wit, the owners of the north half of section 20, township 62, range 39, the court finds the present value per acre of the 320 acres to be $35. The court further finds, taking into consideration the matters and things mentioned in the beginning, that the east 160 acres will be benefited to the extent of $20 per acre, and that the west 160 acres, in like manner will be benefited to the extent of $22.50 per acre. The court further finds that by the construction of the ditch and laterals seven and one-half acres of said 320 acres will be appropriated and that the benefits shall be reduced by deducting seven and one-half acres from the 320 acres, leaving 312% acres, in the following manner: first, deduct three acres appropriated from the west 160 acres, and four and one-half acres appropriated from the east 160 acres, then multiply what is left in each tract by the above benefits per acre, making in the aggregate $6,642.50, which represents the total benefits for the 320 acres. And the court finds that said 320-acre tract sustains no incidental damages whatever.
. “As to the lands of exceptor T. C. Dungan, the court finds the present value of the forty-acre tract, to-wit, the northeast fourth of the southwest quarter of section 20, township 62, range 39, to be $40 an acre, and finds that the slope of the land is towards the ditch! The court further finds that one and one-half acres of said land, of the value of $40 an acre, will be táken and appropriated by the ditch leaving 38% acres which the court finds‘from the evidence will be benefited $22.50 an acre, or in the aggregate $866.25. And the court finds that said forty acres sustains no incidental injury or damage.
“As to the eighty acres of said exceptor Dun gan, to-wit, the south half of the southwest quarter of section 17, township 62, range 39, the court finds the present value of said eighty to be $40 per acre. The court further finds that 3.60 acres of said land will be appropriated for said ditch, leaving 76.40 acres. The court further finds that the market value of said eighty acres of land will be diminished and injuriously affected by. reason of the triangular shapes in which it is left by the ditch to the extent of $400. The court therefore deducts from the eighty acres 3.60 acres, leaving '76.40 acres, and assesses the benefits at $22.50 per acre for said 76.40 acres, less $400 incidental damages, as aforesaid, making the aggregate $1319 which represents the total benefits for the 80 acres.”

The decree further finds specifically as to the other exceptors, and concludes as follows:

“It is therefore ordered, adjudged and decreed by the court that the report of. the commissioners, filed in this proceeding, be and the same is hereby modified, altered and corrected in accordance with the foregoing findings and as so modified and corrected, the report of said commissioners is confirmed.
“It is further ordered and adjudged that the drainage district pay all costs incurred by them and half the court costs in this proceeding.
“And it is further ordered and adjudged that the balance or remaining costs shall be paid in equal parts by the objectors.
“All objectors who withdrew their objections are adjudged to pay their own costs.”

To the entry of the decree and every part thereof, so far as it affected objectors, the Richardson heirs, and their said lands, the said John D. Richardson and others at the time objected, and their objections being overruled, they excepted to the said ruling.

Thereupon appellants filed their motion for a new trial, which was by the court overruled, and exceptions thereto were duly saved.

They then duly appealed the case to this court.

I. Complaint is first made by counsel for appellant of the action of Judge Ellison in appointing commissioners to assess damages and benefits against the lands embraced within the drainage district, by virtue of the improvements proposed, also of his action in hearing the exceptions filed to the report of the commissioners.

Their contention is that the assessment of damages and benefits, and the-trial of the exceptions made thereto, are but a continuation to the original proceedings instituted in the circuit court of Holt county to incorporate the drainage district, and are therefore additional steps taken in the same cause of action, and not a new or independent proceeding. That being true, they argue that Judge. Ellison, having lost jurisdiction over the cause, by granting a change of venue, and calling in Judge Trimble to try the cause, he was therefore forever disqualified and barred from' ever again acquiring jurisdiction over the same.

This contention of counsel for appellants is in our opinion well taken. The principal underlying that question was presented to this court for determination in the case of State ex rel. v. Wilson, 216 Mo. 210, 1. c. 280 to 286. We there held that not only was the first assessment of benefits a part of the original proceedings to incorporate the district, but also that a subsequent, or second assessment was a continuation of the original proceedings to incorporate, and for that reason we held that the landowners were in court for all purposes, and were not even entitled to notice of the second assessment of benefits.

The latter case was cited with approval by this court in Banc, in the case of State ex rel. McWilliams v. Bates et al., just decided and reported at 235 Mo. 262.

The conclusion announced in those cases is in perfect harmony with the statutes governing the organization of these districts, and the adjudications of this court regarding the change of venue in all civil cases of which this is one, as was expressly held in the case of State ex rel. v. Riley, 203 Mo. 175.

In the case of Ex parte Haley, 99 Mo. l. c. 152, this court, in speaking of this subject by Sherwood, J., said: “The transfer of the cause by change of venue took with it the whole cause, and every incident belonging thereto, to the Ealls Circuit Court, just the same as if the cause had originated in that court. Not a shred or patch of jurisdiction over the cause, or any of its incidents, was left in the Louisiana Court of Common Pleas. The jurisdiction of the Ealls Circuit Court was therefore complete over the petitioner. Having failed to obey the orders of the court, he became guilty of a manifest contempt by such disobedience. He was an officer of the court to which the cause was transferred. He was required to report his proceedings to that court, and ‘to hold the moneys collected, and all property received by him, subject to the order of court.’ [E. S. 1879, sec. 403.]”

It is provided in section 5497, Eevised Statutes 1909, that the circuit court in which the proceedings are instituted, “shall thereafter maintain and have original (evidently exclusive) jurisdiction coextensive with the boundaries and limits of said district without regard to the county lines for all the purposes of this article.”

Section 5499 provides that it shall be the duty of the circuit court organizing the district to “declare and decree said drainage district a public corporation of this State.”

This mandate of the statute has been followed in the cases of State ex rel. v. Wilson, supra, and Land & Stock Co. v. Miller, 170 Mo. 240.

Section 5506 provides that “within twenty days after the said district has been declared a corporation by the court, the cleric thereof shall transmit to the Secretary a certified copy of the record relating thereto.”

This duty is imposed upon the clerk of the court organizing the district and not on the clerk of the court where the proceedings were instituted, thereby clearly indicating that a change of venue might be granted in such proceedings.

This same item is expressed in the succeeding section, where it is provided that “within thirty days after the circuit court shall have declared any drainage district organized, the clerk of snch court (not the clerk of the court in which the proceedings were instituted, nor the clerk of the court from which the venue originally came, but the clerk of the court organizing the district) shall, upon fifteen days’ notice, call a meeting of the owners of real estate,” for the purpose of electing a board of supervisors to act for all the land owners.

Sections 5508 to 5513 prescribe the duties and create the powers of board of supervisors, and of the engineers mentioned in the articles.

Section 5514 provides that “within twenty days after the adoption by the board of supervisors of the aforesaid ‘plan for drainage . . . the secretary of said board shall prepare and file a certified copy thereof’ with the clerk of the circuit court having jurisdiction of said drainage district, as aforesaid, and at the same time the board of supervisors shall file with the said clerk of the circuit court a petition asking the judge of said court to appoint commissioners for viewing said lands.”

Section 5515 provides that the clerk of said circuit court shall, upon the filing of said order of appointment (of said commissioners), notify the commissioners of their appointment and of their duty to meet at a place named by said clerk for the purpose of organizing themselves into a board of commissioners.

Section 5516 states the duties of the commissioners, and prescribes the rules by which they are to be governed in making the assessments, and then provides that the “report shall be signed by a majority of the commissioners and filed with the clerk of said circuit court organizing said drainage district.”

' Section 5517 provides that “upon the filing of the report of the commissioners the clerk of said circuit court shall give notice thereof.”

Section 5518 provides for the filing of exceptions to the report of the commissioners. It also makes it the duty of the court in which the report is filed to hear the exceptions and to amend and modify the same as it may deem just and proper, and then render its decree accordingly. The clerk is then requested to make a certified copy of the commissioners’ report, as amended and modified by the decree of the court, and transmit it to the secretary of the board of supervisors of the district.

Even in the absence of the adjudications previously mentioned, if any doubt existed, as to which court possessed the power to appoint the commissioners to assess the damages and benefits mentioned in this article, that doubt must certainly be removed by a perusal of these direct, positive and mandatory statutes, mentioning the courts wherein the various proceedings are to be had.

Under this article, the petition for, or the original proceeding, must be instituted in the circuit court of the county having the greatest acreage of overflowed lands embraced within the proposed district, but the commissioners to be appointed to assess the damages and benefits mentioned therein, must be appointed by the court organizing the drainage district.

The same is true with reference to the report of the commissioners. It must be filed in the court organizing the district, and all exceptions made thereto must be heard and determined by that same court and none other.

The design and purpose of the Legislature as manifested by these direct, positive and mandatory statutes were to keep all the orders, proceedings and decrees relating to any drainage district in one county and one court. By this statute the court organizing the district is given the exclusive jurisdiction over the entire subject-matter of the proceedings, coextensive with the boundaries of the district “without regard to the county lines for all the purposes of this article.”

We therefore hold that Judge Ellison had no jm risdiction to proceed further in the case, after sustaining the motion for a change of venue, and calling in Judge Trimble to try the same.

Counsel for respondent insist that, even though it be conceded that it was error for Judge Ellison to proceed with the cause after having granted a change of venue, nevertheless the objection to his authority to so act in the premises came too late, and the error was waived because the objection was not timely presented.

It appears from the record that, on the motion of the board of supervisors of the drainage district, the court, being presided over by Judge Ellison, appointed commissioners to assess the damages and benefits which the property owners would sustain in consequence of the proposed improvements. In pursuance to that appointment they proceeded to do that work, without objection from appellants, or from anyone else; and for the first time, after all their work had been completed and tbeir report filed with the conrt, and after tbe court had heard all the evidence offered in support of and against the exception filed to the report of the commissioners, counsel for appellants, by way of instruction, requested the court to declare that Judge Ellison had no authority to act in the case.

Our reports are full of cases holding that parties to actions may by their conduct in the circuit court waive their right to insist upon a' change of venue granted or refused, and when so waived, this court will not interfere for the purpose of restoring to them their lost rights.

We therefore hold that appellants are in no position to complain of the action of Judge Ellison in appointing the commissioners, or in having the exceptions made to their report.

II. When the exceptions to the report of the commissioners were by the court taken up for hearing, counsel for appellants demanded a trial by a jury, and at the close of the evidence introduced in support of and against the exceptions, counsel made the same request by the second instruction asked.

The court denied the demand and refused the instruction, and to that action of the court, counsel duly saved their exceptions.

This action of the court constitutes the basis of the second' proposition here presented for determination.

In order to correctly understand this proposition, it becomes necessary for us to consider sections 5513 and 5518, Eevised Statutes 1909. In the first instance these sections give the commissioners plenary power to assess all damages and benefits which will result to the property owners in consequence of the proposed improvements, including reasonable compensation to the landowners, whose lands are taken for the right of way for the ditches and drains; and in the second place, the circuit court is given full power to review and pass, in a summary manner, as therein provided, upon all assessments made by the -commissioners, to which timely exceptions have been filed.

These sections are dealing with two separate and distinct subject-matters; namely, taxation and condemnation.

The commissioners under those sections of the statute are empowered to assess not only the damages and benefits which will result to landowners, in consequence of the construction of the proposed improvements, but also, as previously stated, to assess the fair cash value of the land to be taken for the use of the ditches'and drains. But when the exceptions to the report of the commissioners come on for hearing before the circuit court, it must discriminate between the two classes of assessments complained of. If the assessment was made under the taxing power of the State for benefits which will result to the property in consequence of the improvement, then the circuit court may try the exceptions without the aid of a jury “in a summary .manner;” but when the exceptions filed challenge the assessment of the cash value of land to be taken for the right of way for the ditches and drains, or the damages that will be done thereto by reason of the improvements, under the power of eminent domain, then the court must grant a jury trial when demanded by the landowners, for the reasons to be presently stated.

The distinction between these two classes of assessments has been recognized by this court in a number of cases. [Keith v. Bingham, 100 Mo. 300; St. Louis v. Buss, 159 Mo. 9, l. c. 12; Gibson v. Owens, 115 Mo. l. c. 267; Heman v. Schulte, 166 Mo. 409, 1. c. 419; City of Independence v. Gates, 110 Mo. l. c. 380; Land & Stock Co. v. Miller, 170 Mo. 240, l. c. 259; City of St. Joseph v. Farrell, 106 Mo. l. c. 442.]

In Keith v. Bingham, supra, Judge Barclay, on page 306, in speaking for the court, said: ' “It is claimed by defendant that the taxbills in suit were issued in violation of that section of the Constitution which declares ‘that private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, •or into court for the owner, the property shall not be disturbed.’ Looking at this defense from the most favorable standpoint, it is evident that it is untenable. The section of the Constitution just quoted refers to, and is intended to regulate, the exercise of the right of eminent domain; whereas special assessments for local improvements, such as the taxbills before us, are referable to, and sustainable under the taxing power. This distinction is well recognized both here and elsewhere in the United States. [Garrett v. St. Louis (1857), 25 Mo. 505; Lewis on Eminent Domain, see. 5.] If the taxing power has been called into play in the mode required by lav/ for the purpose of paying for a local improvement, such as paving or grading a street, it is no defense to a bill issued therefor to say, as is said here, that the street, or the improve-, ment, damaged and did not benefit the property, though, if such were the fact, the party injured might, have his action (on a proper showing) under the Constitution for such injury.”

And in the case of St. Louis v. Buss, supra, Brace, P. J., in speaking for the court, said: “The contention of the appellants, in brief, is: that the court had no authority to thus modify the report, of the commissioners, and in support of this contention, section 21, article 2, of the Constitution, is invoked, by which it is provided ‘that private property shall not be taken or damaged for public use without just compensation. Such compensation shall he ascertained hy a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law,’ and the cases of Bridge Co. v. Ring, 58 Mo. 491, and Rochester Water Works v. Woods, 60 Barb. (N. Y.) 137, are cited. If the court had undertaken to modify their report as to the damages assessed for the property taken for the improvement, then this provision of the Constitution would have some application, and the contention receive some support from the cases cited. But such was not the case. The court did not in any manner change or modify the report of the commissioners as to the damages for the land taken. On the contrary, the modification was confined to the assessment for benefits to defendant’s lots not taken or damaged by the improvement. The city takes the property of a citizen for a public street or highway under the power of eminent domain. It raises money to make compensation therefor under the power of taxation, by levying a portion- thereof upon property that is specially benefited by the improvement. While under the charter but one proceeding is provided for the accomplishment of both objects, yet they are distinct in character, as are the powers from which they flow. So far as the proceeding goes, in the exercise of the power of eminent domain, it is subject to the constitutional provision quoted. But we know of no constitutional provision requiring the benefits to be ‘ascertained’ by ‘a jury or board of commissioners.’ In that proceeding, however, the charter of the city of St. Louis (article 6, sections 4, 5, 6 and 7) does provide that the board of commissioners appointed for the purpose of condemning the property required for the public use, shall also assess the benefits, subject to the power of the court in which the proceedings are had, to ‘review’ their assessment, on which review, ‘the court shall make such order therein as right and justice may require, and may order a new appraisement.’ The power of the commissioners to assess the benefits, and the power of the court to review the assessment, is derived from the same source, i. e., the charter. In the exercise of that power, the court is required to make such orders ‘as right and justice may require.’ This requirement is plenary and mandatory, imposes an absolute duty upon the court, and if in the proper discharge of that duty, it becomes necessary, the court ‘may order a new hppraisement upon good cause shown.’ This latter requirement, unlike-the former, is permissive, and imposes no absolute duty. "Whether or not a new appraisement shall be ordered in any given case, upon cause shown, is left to the judicial discretion of the court. In some cases, the exercise of a wise judicial discretion may demand that the assessment of benefits against all the property be confirmed; in some, that the assessment against all the property be set aside; in others, that the assessment against some of the property be confirmed and against some be set aside; and yet in others, that the assessment against some of the property be confirmed, against some be set aside, and against some be reduced as was done in the case in hand. The authority of the court to exercise its discretion in the last mode is just as ample as it is in the first three. And while in any case the court upon good cause shown, has a like discretion to order a new appraisement, in no case is it obligated to do so either by the Constitution of the State, or.the charter of the city, unless justice and right require it.”

The other case, cited announced the same general rule.

Our reasons for holding that the appellants were entitled to a jury trial are as follows:

Section 21 of article 2 of the Constitution provides : ‘ ‘ That private property shall not be taken or damaged for public use without just compensation. Such, compensation shall be ascertained by a jury or hoard of commissioners of not less than three freeholders, in snch manner as may he prescribed by law.”

In obedience to this constitutional mandate the Legislature enacted said sections 5513 and 5518, which, in so far as they are here material, read as follows:

Section 5513, after requiring the commissioners to file their report with the circuit clerk, proceeds, “And thereafter the same shall he proceeded with [in the circuit court] in the same manner as is now provided for by law in article 2, chapter 22 of the Revised Statutes of Missouri, 1909, for the appropriation and valuation of lands taken for telegraph, telephone, gravel and plank and railroad purposes.” And section 5518, after authorizing the landowners to file exceptions to the report of the commissioners, further provides: “All exceptions shall he heard by the court and determined in a summary manner so as to carry out liberally the purposes and needs of such drainage district. . . . and shall condemn any land and property that may he needed for a right of way or material, following as nearly as possible the procedure in cases of condemnation of rights, of way of railroads. ”

' Section 4 of article 12 of the Constitution and section. 2364, Revised Statutes 1909, provide in express terms, that when a railroad company condemns lands for a right of way, or where its property is being condemned, either party to the proceeding- is entitled to a trial by a jury.

Article 2 of chapter 22, referred to in section 5513, relates to condemnation proceedings of rights of way for railroads and other companies, which includes section 2364.

So under these constitutional and statutory provisions, there can be no doubt but what the appellants were entitled to have the value of their lands taken or damaged for the use of the district, to be assessed by a jury.

Counsel for respondent do not seem to controvert the correctness of the conclusions just stated, but insist that they have no application to the facts of their case, for the reason, that the district is not seeking to take appellants’ land in this trial.

We do not so understand the record. The decree as hereinbefore set out shows that the district proposes to take seven and one-half acres of the Richardson tract and five and ten one-hundredths of an acre of the Dugan tracts, which will be “occupied by the ditch.” Not only this, but the decree also shows that in assessing the benefits which would be done to these tracts, the court took into consideration the said seven and one-half acres and the five and ten one-hundredths of an acre, in reducing the benefits assessed against those tracts. Those portions of the decree are inconsistent with the idea that the district was not seeking, by this proceeding, to take any of appellants’ lands.

The court not only appropriated the seven and one-half acres, and the five and ten one-hundredths of an acre, before mentioned, but as before stated, the amount of the benefits assessed against the remainder of the Richardson and Dugan tracts was reduced by the value of the two tracts so taken for the right of way for the ditches.

We are, therefore, of the opinion, that the circuit court erred in refusing-appellants’ request for a trial by jury, regarding the value of the lands proposed to be taken by the district for the right of way for its ditches and drains, and for the assessment of damages done to the remaining portions by reason of said improvements.

The judgment assessing the benefits should be suspended until the value of the land taken for the ditch, and the damages done to the remainder, in consequence therof,- is ascertained in the manner before suggested.

If the benefits exceed the damages, then the court should deduct the latter from the former; but if the damages should exceed the benefits, then the former should be deducted from the latter, and the judgment should be rendered accordingly. All this should be done in one proceeding.

III. By the third instruction asked, counsel for appellants challenge the constitutionality of the drainage statutes under which this proceeding was instituted and prosecuted. That instruction is as follows:

‘ ‘ Third. That the statute of the State of Missouri assuming to define the duties and powers of the commissioners is void, being in contradiction of section 21 of article 2 of the Constitution of the State of Missouri, in that it assumes to limit damages to the value of land taken and no decree can be entered in these proceedings. ’ ’

This instruction is predicated alone upon section 5516, Revised Statutes 1909, and ignores all other sections of the statute bearing upon the same subject. That section should be read and construed with the other section of the same article, bearing upon the same subject; and by so doing, the objection made to the constitutionality of the act will be eliminated for the reason that section 5513, Revised Statutes 1909, among other things, provides: “The court, or judge in vacation, shall appoint such commissioners, who, after having sworn faithfully and impartially to perform the duties devolving upon them, shall within thirty days after their appointment, unless longer time be given them, view'the premises and assess the damages to each owner separately, taking into consideration the advantages and disadvantages of the proposed work and improvements, and make their report in writing, and file the same in the office of the said circuit clerk, and thereafter the same shall he proceeded with in the same manner as is now provided for hy law in article 2, chapter 22 of the Revised Statutes of Missouri 1909, for the appropriation and valuation of lands taken for telegraph, telephone, gravel and plank and railroad purposes.”

The article mentioned refers to statutes which provide the machinery, hy which the damages the landowners will suffer in consequence of the improvement, may he assessed. Section 2367 thereof reads as follows: “In case property is to be, will be, or has been hy any corporation damaged for public use, any person interested may have such damages ascertained. The proceedings for ascertaining and paying such damages shall he the same as are and may he provided hy law for assessing damages which pwners of land may sustain in consequence of its appropriation for railroad purposes.”

And section 2364 of article 2 of chapter 22, referred to in the last section, authorizing railroads to condemn lands, was mentioned and considered in paragraph two of this opinion.

This article fully provides for the condemnation of lands for the use of “any road, railroad, telegraph, telephone or other corporation created under the laws of this State, for public use.”

It clearly appears from these statutes that ample provision is not only made for the assessment of the value of the lands taken for the use of drainage districts, but also for the assessment of all damages which may result thereto hy reason of such improvements. That being true, the court was justified on that ground alone in refusing to give said third instruction.

But there is another valid reason which also warranted the action of the court in refusing said instruction, and that is this: That provision of the Constitution which prohibits private property from being taken or damaged for public use without just compensation first being paid, is self-enforcing, and needed no statute to authorize the commissioners or the court in allowing reasonable compensation for the land taken aud damaged by reason of said improvements. [Householder v. Kansas City, 83 Mo. 488; State ex rel. v. Taylor, 224 Mo. l. c. 482.] That being true, then it is wholly immaterial whether there was a statute authorizing the assessment of such damages or not, for the obvious reason that the constitutional provision mentioned not only authorizes, but in express terms commands, that all such damages must be assessed.

In the last case cited, the same contention was made that is here presented. If was there contended that the statute, then under consideration, was void because no provision was made for the payment of damages, sustained by the landowners, for' having been deprived of a living stream of water which flowed by or passed over his land, by reason of the construction of the ditch. In passing upon that question, the court on page 481, said:

“We do not concur with the contention of learned counsel in that the law nowhere provides for the payment of compensation for whatever damages a landowner may sustain for being deprived of a stream of water which flows by or passes over his lands by reason of the construction of the drainage ditch.
“Section 20 of article 2 of the Constitution expressly authorizes the taking of private property ‘for drains and ditches across the lands of others for agricultural and sanitary purposes, in such manner as may be prescribed by law,’ and section 21 of the same article provides ‘that private property shall not be taken or damaged for public use without just compensation,’ etc. ‘
“In pursuance to that constitutional mandate, the Legislature duly enacted the drainage laws we now have under consideration. And whenever private property is about to be taken or damaged in conseqiience of said improvements, then in steps said section 21 and says all damages done private property by means thereof shall be first paid.
“So under those organic provisions, when it becomes necessary for a drainage district to take or damage private property (whether it be water or land) for the purposes of its organization, it must first pay. for the property to be so taken and the damage which will be done thereto in consequence thereof. If the value of the property to be taken and the damages which will be sustained cannot be agreed upon then compensation should be allowed for the same in the condemnation proceedings authorized by the acts of 1899 and 1905.
“And independent of that, this court at an early day held that said section 21 was self-enforcing and requires no legislation to give it force and effect; and that where a statute or the organic law creates, a right, but is silent as to the remedy, the party entitled to the right may resort to any common law action which would afford him adequate and appropriate means of redress. [Householder v. City of Kansas, 83 Mo. 488.] Under that ruling injunction would have afforded relators and all other interested parties-perfect protection against all such damages mentioned by counsel for relators. The point is therefore ruled against relators.”

We therefore hold' that the trial, court properly refused said third instruction.

IY. The fourth instruction asked by counsel for appellants assails the constitutionality of said section 5516, for the reason that it provides, among other things, that the compensation awarded to the landowner for land .appropriated for the right of way, for the ditch, and the damages allowed him for damage done to the remainder in consequence of the improvement, shall be deducted from the benefits assessed against the ]and when such benefits are in fact but the basis of assessments for taxes to be levied from year to year, as might thereafter be found necessary by the board of supervisors of the district for the purpose of paying for the improvements made.

This mode of compensating the landowners for the land taken and the damages done thereto, it is contended, violates section 21 of. article 2 of the Constitution of 1875.

There can be no doubt but what, under the section of the Constitution, it is permissible for the State, or any public corporation authorized by it, in the exercise of its taxing power, to assess against property, situate therein, special benefits accruing to it from public improvements, and such benefits may be considered in fixing the compensation to which one is entitled whose property has been taken or damaged for such improvements. [Newby v. Platte Co., 25 Mo. 258; Daugherty v. Brown, 92 Mo. 26; Lingo v. Burford, 112 Mo. 119; Wolters v. City of St. Louis, 132 Mo. 1; Bennett v. Woody, 137 Mo. 377; City of St. Joseph v. Geiwitz, 118 Mo. 210; City of St. Louis v. Buss, 159 Mo. 9.]

We are therefore of the opinion that the court did not err in refusing this instruction for the reason assigned by counsel.

V. Counsel for appellants also contend that said section 5516 is unconstitutional, null and void, for the reason that it violates section 1 of the 11th Amendment of the Constitution of the United States, which forbids a State from enforcing any law which denies to any person within its jurisdiction the equal protection of the laws.

Counsel states his position in the following language :

“It is also void because of its inequality in that it attempts to compel the owner of the property to take in pay for his property taken, the full amount of benefits assessed, when the benefits assessed are merely a basis for taxation therefor, so that the party whose property is taken under this law is to be paid immediately in benefits for the value of his property, while another landowner, who is not damaged, has twenty years in which to pay for such part of the benefit assessment as may be levied.
“It will be seen that it is not intended by the statute after benefits have been assessed to proceed to collect them immediately.
“By sections 5519 and 5520 provision is made for the use of this assessment of benefits as a basis of taxation. Taxes are to be levied and made payable in'twenty annual installments. If the statute is followed the person whose land is taken pays at once by loss of land the value, while his neighbor whose land is not taken pays in installments and may not have to pay all his benefits.
“For example, A owns land through which a right of way is taken, taking say ten acres with improvements, valued at one thousand dollars. Benefits to the amount of two thousand dollars are found and assessed to the remainder of the tract. These benefits are reduced one thousand dollars on account of the land taken, leaving one thousand, dollars as a basis for future assessments. . A’s neighbor B is as- • sessed two thousand dollars with no deduction because no land is taken.
“The board of supervisors find that all the benefits must be collected, and levies an assessment for the first year of five per cent.
“A, whose land is taken, at the end of first year has paid one thousand dollars by losing his land and fifty dollars, first annual installment. B, at the end of one year has paid one hundred dollars, first annual installment. At the end of second year A has paid eleven hundred dollars and B only two hundred dollars. This makes an unjust and illegal distinction.”

In support of that proposition, we are cited to the case of Grutschow v. Washington County, 105 N. W. (Neb.) 548.

In that case the drainage district appropriated 3.5 acres of the plaintiff’s land of the value of $140, and the commissioners appraised the damages done to the remainder of the tract at $100, and assessed the special benefits at $1,124.20. From that proceeding, the plaintiff appealed, to the district court, where a trial was had, and the court, over plaintiff’s objection, gave the following instruction:

“When you have ascertained the total damage, if any you find, suffered by appellant to the portion of his land not taken, you must deduct therefrom any special benefits which you find said land may have derived from the location and construction of said ditch. In determining the spceial benefits accruing to land by reason of the construction of the ditch, it is proper for you to take into consideration whatever will come to the land from the drain or ditch, making it more valuable for tillage or more desirable as a place of residence, or more valuable in the general market, the true and final test being what will be the influence of the proposed improvement on the market value of the property; but you are in no event to take into consideration the general benefits which the appellant may derive from the location and construction of said -ditch, and a general benefit is one which is enjoyed not by the appellant alone, but by the property owners along the line of said proposed ditch.”

In passing upon that instruction, the court used the following language:

“The plaintiff contends that a different rule should obtain in a case where the landowner himself is compelled to bear the burden of the special benefits which his land sustains from the improvement. A special tax of $1,124.20 has been levied and assessed upon tbe lands of tbe plaintiff to pay for tbe construction of this improvement. Tbis assessment represents tbe value of tbe special benefits wbicb will accrue to tbe real estate through wbicb tbe ditch passes by reason of its construction, and be is compelled to pay that amount to reimburse tbe county for tbe money expended in tbe construction of tbe ditch. In tbe cáse of a highway being opened across bis premises or of a railway being constructed thereon, tbe landowners may in a sense be said to pay tbe value of tbe special benefits wbicb be derives by reason thereof, by such value being deducted from whatever damages tbe land not actually taken for tbe improvement may suffer by reason of tbe same. In tbe case of a drainage ditch, however, these benefits are assessed against him by tbe very act of tbe public authorities wbicb appropriate bis land to tbe public use. To allow these benefits to be' deducted from any damages wbicb be may suffer to tbe land not taken would be to compel him to pay twice to tbe public tbe value of tbe special benefits wbicb be has received. Tbis would manifestly be unjust and inequitable and would impose a burden upon him in excess of that borne by those whose lands were not damaged. To illustrate, suppose two adjoining proprietors were each assessed $1000 for special benefits accruing to tbe lands by reason of tbe proposed improvement. If tbe land of one were not damaged in any way by tbe proposed improvement, tbis amount would be tbe extent of tbe burden imposed upon him; but, if tbe land of the other proprietor were so traversed by tbe line of tbe ditch that tbe value of tbe remainder of tbe tract was depreciated $2000 by tbe construction of tbe ditch, if be were then compelled to offset against tbe damage $1000 in special benefits received by reducing bis compensation to that extent, bis burden would be double that of bis neighbor, since be would be mulcted $2000 for tbe same improvement for which his neighbor pays but $1000. In the case of a railroad or a highway the value of the special benefits accruing to the land is not assessed against and paid by the landowners, and hence the same should be deducted from his incidental damages, but with a drainage ditch the conditions are different, and the rule laid down by the district court would compel a double burden to be placed upon the landowners whose premises were damaged. Where special benefits have already been assessed against the owner of lands damaged by a proposed drainage ditch, the value of such special benefits should not be deducted from any damages accruing to the land not actually taken for the construction of the proposed improvement. [Livingston v. Mayor of New York, 8 Wend. 85, 22 Am. Dec. 622; Union Drainage Dist. v. Volke, 163 Ill. 243, 45 N. E. 415; Thomas v. Co. Comrs., 5 Ohio N. P. 449.] The apportionment of the cost of the ditch to each landowner is an exercise of the power to tax, but the taking of his property and the ascertainment of the damages he may suffer thereby is an exercise of the power of eminent domain. The statute makes no provision for the deduction of damages from the amount assessed against the land as special benefits, but the method provided is that the county authorities shall establish the apportionment according to the benefits first, and afterwards examine claims for damages and allow compensation therefor. No method is provided for offsetting one against the other.”

We are unable to understand the reasoning of that case, or to see wherein the inequality mentioned therein exists. Surely the case must be improperly reported, for obviously the very illustration given, by the learned commissioner who wrote the opinion, shows conclusively that the injustice or inequality mentioned by him did not exist in that case. But be that as it may, it has no application to the facts of this case.

The only inequality here complained of is that the landowner under this statute, whose lands are taken or damaged for the use of the district, is compelled to pay at least a part of the benefits assessed against his lands, before the landowner whose lands are not taken or damages is required to pay his assessment of benefits.

This contention is unsound. The landowner whose lands are taken or damaged for the use of the improvements is not, under this statute, paying his assessment in advance, either in law or fact, but under the requirements thereof, and in pursuance to the mandate of the Constitution, he receives just compensation for the land taken and damaged thereby, by the commissioners deducting the value thereof from the total benefits assessed against his other lands and the remaining benefits assessed, if any, he must pay, just as all other landowners in the district must pay their assessments. [Newby v. Platt County, supra; Daugherty v. Brown, supra; Lingo v. Burford, supra; Wolters v. City of St. Louis, supra.]

There is no merit in this contention.

There are other questions, of a minor character, discussed in the brief filed in this case, but they will not be considered here, as it is not necessary to do so in order to properly dispose of the case.

For the error suggested, the judgment of the circuit court is reversed, and the cause remanded for a new trial.

All concur, except Kennish, J., who dissents, and Graves, J., who expresses no opinion.


source: Caselaw Access Project

license: Public Domain

text:
    CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant, v. LITTLE TARKIO DRAINAGE DISTRICT NO. ONE.
    In Banc,
    July 15, 1911.
    1. REMOVAL OF CAUSE TO FEDERAL COURT: Application Not Timely: Drainage District. An application by a railroad company, in a drainage district case, for tbe transfer of tbe cause to the Federal court, not filed in the trial court until after the commissioners had filed their report assessing damages and benefits, which was two years after the suit was instituted r and after the lapse of several terms of court, is not timely made and should for that reason be overruled. The application should be presented on or before the third day of the term of the court to which the suit is brought. The filing of the report of the commissioners is not the beginning of the suit as to the landowner.
    2. DRAINAGE DISTRICT: Condemnation: Trial by Jury. The right of the landowner to a trial by jury, upon timely exceptions filed to the report of the commissioners of the drainage district appointed to assess benefits and damages, cannot be denied, where his property was taken for ditches and drains. And the report of the commissioners showing that lands of the railroad company were “necessary to be taken and were taken and condemned for a right of way of the main drainage ditch and laterals aforesaid,” and that they assessed the railroad company’s damages, for “railroad bridge, $9,000; right of way of main drainage ditch across railroad, $250; and delay in operation to railroad company, $750; total, $10,000,” on its face shows the proceeding involved the power of eminent domain, and the court erred in holding that the law of eminent domain does not apply to such a case.
    3. -; -: —-: Report Modified so as to Strike Out Damages. Where the commissioners’ report designated certain lands of the railroad company “taken and necessary to be taken for the main drainage ditch,” and assessed its damages therefor at $10,000, and its benefits at $16,000, leaving $6,000 as the benefits it should pay, and the court struck out the $10,000 damages and reduced the benefits to $10,000, and then confirmed the report as modified, the railroad company’s land has been taken, and the power of eminent domain was necessarily involved, and the trial court erred in refusing to the railroad a right of trial by jury to determine the damage.

      Appeal from Holt Circuit Court. — Hon. William G. Ellison, Judge.
    Reversed and remanded.
    O. M. Spencer and II. J. Nelson for appellant.
    (1) The court erred in refusing to order removal of case to Federal court: (a) A drainage district proceeding is removable when necessary diversity of citizenship exists and amount in controversy is sufficient. Regardless of whether by this proceeding any land is condemned, the proceeding is similar to a condemnation proceeding, the purpose being to assess benefits and damages, and section 5518 of Drainage Laws provides for saíne procedure as in railroad condemnation eases. 34 Cyc. 1227; 18 Ency. PI. & Pr. 221; Moon Removal Causes, sec. 144; Traction Co. v. Mining Co., 196 U. S. 248; Pacific Removal Cases, 115 IT. S. 1; Railroad v. Railroad, 141 Fed. 582. (b) The drainage district.is a public corporation, being so declared by statute. ■ Sec. 5499, R. S. 1909. A “public corporation” is a “municipal corporation” —merely interchangeable terms. 23 Am. & Eng. Ency. Law, 311; Covington v. Kentucky, 173 IT. S. 242; New Orleans v. Water Works, 142 IT. S. 91. A municipal corporation is a citizen of the State of its incorporation for purpose of removal, and has always been so considered by the courts, and cases are continually being removed on citizenship of a city, county, drainage district, etc. 18 Ency. PL & Pr. 188; Moon Removal Cases, sec. 126; Cowles v. County, 7 Wall. 161; Pacific Removal Cases, 115 IT. S. 1. (c) The necessary separable controversy exists because the proceeding is a separate controversy as to each piece of property involved. 18 Ency. Pl. & Pr. 221; Moon Removal Cases, sec. 144; Railroad v. Railroad, 141 Fed. 582; Sugar Creek v. McKell, 75 Fed. 34; Pacific Removal Cases, 115 IT. S. 1. (2) The court erred in refusing the railroad a trial by jury on the issue of damages raised by the exceptions of the drainage district, for the following reasons: (a) The drainage statute provides that this, proceeding shall be in accordance with the general condemnation statute of the State, and it has always been held by this court that the filing of exceptions to an award of damages gives (and is provided for the very purpose of giving) the right of trial by jury on the question of damages. Sec. 5518, R. S. 1909; Railroad v. Story, 96 Mo. 619; Railroad v. Woodard, 193 Mo. 656; Railroad v. Wyatt, 223 Mo. 354. Yerbal demand is sufficient. Railroad v. Cox, 41 Mo. App. 502. (b) But if it should be held that said provision of the drainage statute is not to be construed as specifically providing for right of trial by jury, and if it should be held that the provision of section 5518, which says the exceptions ‘ ‘ shall be heard by the court and determined in a summary manner,” does not entitle the railroad company to a trial by jury, then said statute is void because it deprives the railroad company of its constitutional right of trial by jury, and deprives it of due process under the law and equal protection under the law as guaranteed to it by the Federal Constitution. The very provision for an award of. damages assumes that property is taken for which payment must be made, and if taken, then the constitutional guarantees of right of trial by jury are inviolate. Sec. 28, art. 1, Constitution of 1875, provides that “right of trial by jury as heretofore enjoyed shall remain inviolate.” At the time of the adoption of said Constitution the law of Missouri provided for trial by jury in condemnation proceedings. R. S. 1879, sec. 896; Laws 1873, p. 24. (c) And even if it be true that the right of way is not being condemned in this proceeding, still appellant was entitled, under Sec. 2367, R. S. 19'0'9, to a jury trial on question of its damages, because Sec. 2364 so provides. And this court has so held. St. Louis v. Buss, 159 Mo.. 12. (3) But if the court he correct in its holding that this proceeding for the award of damages is not a condemnation proceeding, then it should have amended the report of the commissioners by expunging therefrom the statements that they condemned right of way for ditch across the railroad right of way and awarded damages therefor.

      E. B. Williams and Frarik Petree for respondent.
    (1) The trial court did not err in refusing to order removal of cause to the Federal court, (a) The application for removal was based for removal on diversity of citizenship, and should have been made before or at the time fixed by the statute of the State to answer, demur or plead. Railroad v. Cave, 50 Fed. 637; Railroad v. Nestor, 50 Fed. 1; Bank v. Apple-yard, 138 Fed. 939; Martin v. Railroad, 151 U. S. 673; Dovle v. Beaufre, 39 Fed. 289; Trust Co. v. Newport, News & M. Y. Co., 70 Fed. 403. (b) Sec. 5518, R. S. 1909, requires any land or property owner in the drainage district to file their exceptions to the commissioners ’ report assessing benefits and damages, within ten days after said report is filed, and this is the only pleading required. When appellant failed, as he did, to file his application for removal to Federal court, within that ten days, he waived any right to afterward do so. (c) A subsequent pleading not filed within the time prescribed by statute tenders no issue that can be inquired into on hearing of original, that filed out of time being of no force and effect in law. Fusselman v. Railroad, 139 Mo. App. 199. (d) The filing of a supplemental pleading has no effect except to abandon the first pleading, as to all matters not re- . stated in the supplemental pleading. Therefore all pleadings filed by appellant after the expiration of the time given by the statute to file exceptions to the commissioners’ report amounts to abandonment of the exceptions first filed, if they have any effect at all. Kortzendorfer v. St. Louis, 52 Mo. 204; Fusselman v. Railroad, 139 Mo. App. 199. (2) The court did not err in refusing to grant appellant a jury trial on the issues involved in the exceptions to the commissioners’ report, (a) The drainage district is not seeking to take exceptors’ land in this action. Said district is not attempting, in this action to exercise the power of eminent domain. Said district, in this action, has only ascertained values as a basis of taxation for local improvements, (b) A city takes property of a citizen for a public street under the power of eminent domain. It raises money to make compensation therefor upon property that is specially benefited by the improvement.. There is no law, constitutional or statute, requiring the benefits to be ascertained by a jury. St. Louis v. Buss, 159 Mo. 12. Assessments for public improvements are regarded as a species of taxation, and property owners are not entitled to have the assessments for taxation made by a jury. 24 Cyc. 133; Land Co. v. Miller, 170 Mo. 240; Hernán v. Schulte, 166 Mo. 409. Corporations formed under the drainage law are governmental agencies created to perform a work of general utility. Nauman v. District, 113 Mo. App. 575; Land & Stock Co. v. Miller, 170 Mo. 253.
   WOODSON, J.

This is an appeal taken by the railroad company in the case of In re Drainage District v. Richardson.

Richardson has appealed the case to this court twice. The opinion written on the first appeal is reported in the 227 Mo. 252, and the second opinion has just been handed down, and reported at page 49 of-237 Mo.

Reference is here made to that case for the purpose of seeing a full statement of the facts.

Counsel for this appellant present not only the questions presented by tbe Richardson appeal, but three additional, which'are peculiar to it.

We will not again discuss the questions passed upon in the Richardson case, but will confine our considerations to the points affecting this appellant alone; and will therefore only state so much of the record as bears upon these questions.

The commissioners appointed, by the court, to assess the damages and benefits which would result to the landowners, for the land to be taken, or damaged for the use of the district, made their report and filed it with the clerk of the circnit court, and in so far as it is applicable to the questions presented by this appeal, it is as follows:

“We herewith submit to the court a schedule list and statement of each and every of .the owners of land owning land within said drainage district, with a description of the land owned by each and the amount of benefits accruing to the same shown thereon, and have also shown the amount of damages assessed to each owner by reason of the condemnations of right of way and other damages accruing thereto separately, deducting from the total benefits the total amount of damages, and have shown in our reports separately the net benefits accruing to each tract of land, returned herewith, marked ‘Exhibit A,’ and made a part hereof.-
“We find that the Chicago, Burlington & Quincy Railroad Company has and owns a right of way running through sections 13 and 24, township 62, range 40, and sections 19, 20 and 29, township 62, range 39, Holt county, Missouri, in said drainage district, with a railroad roadbed in said railroad right of way.
“In the performance of our duties, and in the assessment of the benefits and damages aforesaid, we took into consideration in connection therewith all other drains, dykes, ditches or levees heretofore constructed-within the boundaries of said drainage district, and we have also examined all streams, water courses, ditches, ponds, lakes and bayous within the district,'which are partly within and partly without said drainage district, and we have also examined all railroad rights of way, culverts, bridges and grades, and all other railroad property in said drainage district, and we have also inspected and examined all other improvements, highways and bridges belonging to any county or corporation which may be affected by the proposed drainage and reclamation works and improvements; and we have also prepared a statement of the estimated cost of the works and improvements to be made in said drainage district for the protection and reclamation of the properties above named, situated and being in said drainage district; and we have also assessed all damages which will accrue or may accrue to the county for the taking of any right of way necessary for the construction and completion of said drainage work.
“Our estimate of the cost of the whole work proposed in the plan of drainage aforesaid is as follows:
Main drainage ditch....... 350,00o cubic yards
Lateral number one........ 2,066 cubic yards
Lateral number two ........ 700 cubic yards
In all .... 352,766 cubic yards......$31,832.00
Two bridges across public highways .. 1,500.00
Levee on west boundary of drainage district, 5,720 cubic yards ........ 600.00
Railroad bridge .................... 9,000.00
Right of way for main drainage ditch across railroad ................... 250.00
Delay in operation to the railroad company ................•............ 750.00
Engineer’s salary, first year ...... 100.00
Engineer’s salary, second year...... 600.00
Attorney’s fees first year ........... 1,250.00
Attorney’s fees second year ;....... 1,250.00
Salary of secretary and treasurer, 1st and 2d year ..................... 250.00
Salary of secretary and treasurer, 18 years •.......................... 350.00
Court costs ....................!... 1,000.00
Expenses of commissioners ......... 150.00
Organization and other incidental expenses .......................... 2,500.00
Cleaning brush and debris out of Big and Little Tarkio in and bordering upon drainage district ............ 2,500.00
$53,882.00
“We further report to the court that the following described tracts of land belonging to the parties respectively named were found necessary to be taken and were taken and condemned for right of way fob main drainage ditch and laterals aforesaid, to-wit:”

Then follows a detailed description of the various ditches which were to be dug, which is not here material, except as follows:

“Chicago, Burlington & Quincy B. B. Company.
• “A strip 50 feet wide on each side of, parallel to and measured at right angles to the center line of the main ditch as shown on the plan of drainage of said district, across the right of way of said railroad in the northwest quarter of section 29, township 62, range 39.
“Lateral Ditch Number Two.
“Commencing at the end of a private ditch at the intersection of the wagon road and the Chicago, Burlington & Quincy Railroad, on the half section line running north and south through section 19, township 62, range 39; thence southeasterly along the north boundary of the railroad right of way to a railroad bridge or culvert; thence southwesterly through said bridge and across the right of way of said railroad; thence in a southerly direction along slough to the Big Tarkio River.
“Landowners, and description of land taken belonging to each for the right of way for Lateral Ditch No. 2. . . .
“Chicago, Burlington & Quincy Railroad.
“A strip of 10 feet wide on each side of, parallel to and measured at right angles to the center line of said lateral ditch, where the same crosses the right of way of the railroad, through said section 19, township 62, range 39.”

So much of ‘Exhibit A’ of commissioners’ report as is pertinent to this appeal is in words and figures as follows:

“Name of Owner: Chicago, Burlington & Quincy Railroad Co.
“Real Estate: A right of way for railroad over strip of northwest corner of section 19, township 62, range 39, one hundred feet wide, the center line commencing 157 links south of northeast corner of section 24, township 62, range 40; thence'north 47.75 degrees west to north line of section; and over strip one hundred feet wide, the corner line commencing three chains south of northwest corner of section 19, township 62, range 39; thence south 47.75 degrees east about 44.66 chains to intersection with south line of original drainage district, 10 chains north of south line of section; and over strip 100 feet wide across the southeast quarter and the east ten acres of southwest quarter of section 13, township 62, range 40, the center line commencing three chains south thence north 47 degrees west to west line of east ten acres of said southwest quarter; and over strip 100 feet wide, the center line beginning 175 feet east of northwest corner of section 29, township 62, range 39; thence south 47.75 degrees east 6,900 feet to east line of section; and over strip one hundred feet wide, the center line beginning 159 feet north of southeast corner of sec-¿ion 19, township 62, range 39; thence north 47.75 degrees west to north line of the sonth 40 acres of the southeast quarter of said section; and over a strip one hundred feet wide, the center line beginning 159 feet north of southwest corner of section 20, township 62, range 39, thence south 47.75 degrees east to south line of said section; being the right of way of the said road, from a point on the west line of the west 10 acres of southwest quarter of section 13, township 62, range 40, in a southeasterly direction through said district to its intersection with the sonth line of said district about three hundred feet east of the center of section 29, township 62, range 39, being 2.79 miles in length.
“Total amount of damage ............ $10,000.00
Total amount of benefits ............ 16,000.00
Amount of benefits allowed less damages assessed .................... 6,000.00”

The following is taken from the statement of the case made by counsel for appellant, which is supported by the record, to-wit:

“Notice of the filing of said report was issued and published by the clerk of the circuit court, and under the law the time within which'exceptions might be filed to said report expired on the 15th day of August, 1910, and upon that date the respondent drainage district filed its exceptions to said award of damages on specified grounds, to-wit, that Railroad Company is not entitled to any award of damages; that it is the duty of the Railroad Company to construct a bridge for said ditch without compensation, and asked that the said award of $10,000 damage be stricken out. The next term of .the circuit court of Holt county commenced one week from the date of the filing of said exceptions by drainage district, to-wit, August 22, 1910, and on said-day the appellant Railroad Company filed its petition and bond in removal in due form, asking that said controversy be removed to the Federal court, which petition for removal the court denied on the ground that it was filed too late, claiming that it should have been filed at the time of the original incorporation of the drainage district. The court thereupon set the case for trial at an adjourned term, and when said cause came on for hearing, September 23, 1910, the Railroad Company filed a reply to said exceptions containing a plea to the jurisdiction on the ground that the cause was in fact pending in the Federal court and because the Honorable W. C. Ellison, the judge of said court, had disqualified hims.elf from sitting in the cause, which plea to the jurisdiction the court overruled. Said reply also alleged the drainage law to be unconstitutional, and asked for damages in the sum of $30,000. Appellant also asked for a trial by jury, which the court denied and proceeded to hear the cause itself.
‘ ‘ The court announced that it would hear the question of damages on the exceptions of the drainage district thereto along with the question of benefits on the exceptions of the Railroad Company thereto, and during the trial evidence was heard showing the manner of the crossing of the ditch under the railroad, the size of bridge and raise of railroad track necessary therefor, that where the main ditch is planned to cross under the railroad the railroad has a solid earth embankment and there is no water course, that the Railroad Company has a large bridge over present ditch, etc.”

The drainage district introduced no evidence on the question of damages, and the court with nothing before it, except the report of the commissioners showing what the award of damages to the railroad company was for, refused evidence offered by it on that question, and proceeded to strike out the award of $10,000 damages made by the commissioners-to it. The court then modified the report of the commissioners in that respect, and confirmed it without striking out of it that part pertaining to the condemnation of a right of way under said railroad.

The appellant duly objected, and saved its exceptions to all of said rulings of the court.

And in due time it filed its motion for a new trial and in arrest of judgment, which was by the court overruled, and appellant duly appealed the cause to this court.

The complaint of appellant, to the rulings of the trial court, is tersely stated in the following language:

“Briefly stated, the Eailroad Company complains herein that the court erred in retaining jurisdiction of the cause, not only because it had been duly removed to the Federal court, hut because the Honorable W. G. Ellison, the regular judge of said court who tried said cause, had no jurisdiction so to do for the reason that he had disqualified himself from sitting in the cause. The .appellant also complains that it was deprived of the right of trial by jury, complains that it was deprived of any trial whatever in this branch of the case, complains that the court erred in striking out the award of damages made this appellant by the commissioners, and that the court erred in failing to so change the report of the commissioners as to expunge therefrom all reference to right of way condemned by the commissioners as the court was in duty hound to do if it had the right to strike out said award of damages upon the ground claimed by it, to-wit, on the ground that this is not a condemnation proceeding and that the commissioners had no right to condemn any right of way for a ditch in this proceeding and no right to award any damages for such right of way.”

I. The first error assigned by counsel for appellant challenges the correctness of the ruling of the trial court in refusing to transfer the case to the circuit court of the United States, in and for the St. Joseph Division of the Western District óf Missouri.

The record shows that the application for the transfer was not filed in the trial court, until after the commissioners had filed their report, assessing the damages and benefits against the various tracts of land situate in the district, which was some two years after the suit was instituted and after the lapse of several terms of the court.

Clearly this application was not timely made, and the trial court for that reason alone properly refused to make the transfer. The act of Congress authorizing the removal of a cause from a State to the Federal court, requires the application therefor to be filed in the former court on or before the day on which the moving party is required to appear and plead. [Black’s Dillon on Removal of Causes, page 15.]

According to that act the application should have been presented to the circuit court of Holt county in 1908, and on of before the third day of the term of the court to which the suit was brought. [Sec. 1799, R. S. 1909.]

Counsel for appellant are evidently laboring under the erroneous impression that the filing of the report of the commissioners, was the beginning of the suit as to their client. The filing of the report, and exceptions thereto, are but remote steps in this class of cases,'long after the time when the parties thereto were required to plead. [State ex rel. v. Wilson, 216 Mo. 215; In re Drainage District v. Richardson, 237 Mo. 49, by this court In Banc.]

We therefore rule gainst the appellant upon this assignment.

II. Counsel for appellant next complain of the action of the trial court in denying to it a trial by jury.

This was error, as was held by ns in the ease of In re Drainage District v. Richardson, supra. It was also error for the further reason that section á of article 12 of the Constitution in express terms guarantees to a railroad company a right to a trial by jury, when its property is sought to be, taken or damaged under the power of eminent domain.

Counsel for respondent, for last reason stated, do not seem to question the right of a railroad company to demand a trial by jury, where its property is proposed to be taken for public use under the power of eminent domain, but insist that no such question is involved in this case.

We are unable to lend our concurrence to that insistence, for the reason that the report of the commissioners as filed shows that they found that lands of the appellant were “necessary to be taken and were taken and condemned for right of way of main drainage ditch and laterals aforesaid;” and that they assessed appellant’s damages for “Eailroad bridge, $9,000; Eight of way for main drainage ditch, across railroad, $250; Delay in operation to the railroad company, $750.00.” Making a total of $10',000.

The report also shows that the commissioners assessed benefits amounting to $16,000 against the appellant, and deducted the former from the latter, thereby leaving a balance of $6,000 of benefits assessed against appellant. On exceptions of respondent the court disallowed the $10,000 damages awarded appellant ; and on the exceptions of appellant the court reduced the benefits assessed against it from $16,000 to $10,000, and modified the report accordingly, but in no other respect. Then follows the decree in the usual form, and so much of it as is here pertinent, reads as follows:

“As to the objections of the C. B. & Q. Eailroad Company, and the objections of the Drainage District with reference to said Eailroad Company, the court declares the law to he that no damage alleged or claimed to result or arise by reason of .the necessity for additional bridges can he considered in this proceeding.
“And the court further declares the law to be that as to all claims of damages for additional bridges, or raising of tracks, the same must he considered only in a condemnation proceeding, which is not involved in the matter now before the court.
“The court further declares the law to be that the only damage which can be considered in this proceeding is such as the evidence may show will result in the way of diminishment of the permanent value of the railroad bed and track thereof, by reason of the construction of the ditch. And the court finds that there is no evidence showing any such permanent injury.
“The court further finds from the evidence that the benefits derived from the ditch of the Railway Company and to its roadbed through said Drainage District, and secured by reason of the construction of said improvements and works, in affording drainage and giving an outlet for drainage, protection from overflow and damage from water, is ten thousand dollars.
“It is therefore ordered, adjudged and decreed by the court that the report of the commissioners, filed in this proceeding, he and the same is hereby modified, altered and corrected in accordance with the foregoing findings, and as so modified and corrected, the report of said commissioners is confirmed.”

It is thus seen, that while the court struck out and disallowed the $10,000 damages awarded appellant, and stated in the decree that “the same must he considered only in a condemnation proceeding, which is not involved in the matter now before the court;” nevertheless the report of the commissioners shows that they condemned appellant’s property for the uses of the district, and the decree of the court confirms that report, modified, in that regard; and as thus confirmed, if it means anything, it means that the right of way for the ditches across appellant’s property has been established and that respondent is authorized to take posession of the same for the purposes mentioned. If not, why then, was the $10,000 assessment made against appellant for benefits it would receive from the construction of the ditches described in the report? That judgment was final, and if it had not been appealed from, it could have been enforced against appellant, and the $10,000 adjudged thereby could have been collected, even though subsequent condemnation proceedings had never been instituted by respondent.

The court may have intended ‘differently; how-, ever, this record does not show that intention, but-upon the controversy it does affirmatively show that the property of the appellant has been appropriated by respondent for drainage purposes, without compensation, and it has been assessed $10,000 for the benefits it will receive from the construction of the ditches which must pass over and along plaintiff’s property.

Such procedure was erroneous, and cannot be tolerated.

III. Counsel for appellant finally complain of the amount of the assessment of benefits made against it. It is claimed that $10,000 is grossly excessive.

We will not pass upon that question now, for the reason that the judgment must be reversed and the cause remanded for another trial, and if excessive, that error can be corrected by the trial court. .

For the reasons stated in this and in the opinion in the Richardson case, the judgment is reversed and the cause remanded to the circuit court for further proceedings.

All concur, éxcept Kennish, J., who dissents, and Graves, J., who expresses no opinion.


text:
    LITTLE TARKIO DRAINAGE DISTRICT NO. ONE v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant.
    In Banc,
    July 15, 1911.
    . Appeal from Holt Circuit Court. — Hon. Wvn. G. Ellison, Judge.
    Reversed and remanded.

      O. M. Spencer and H. J. Nelson for appellant.

      H. B. Williams and Frank Betree for respondent.
   WOODSON, J.

This is another appeal growing out of the case of In re Drainage District v. Richardson, just decided, and reported in 237 Mo. 49.

All the questions presented by this appeal are decided either in the Richardson case, or in the case No. 16383, between these same parties, just decided, and reported at 237 Mo. 86.’

For the reasons stated in those cases, the judgment is reversed and the cause remanded for a new trial.

All concur, except Kennish,-J., who dissents, and Graves, J.; who expresses no opinion. -