author: BLAIR, J.

text:
    CLARA E. LIGGETT v. EXCELSIOR POWDER MANUFACTURING COMPANY, Appellant.
    Division One,
    April 8, 1918.
    1. NUISANCE: Powder Magazine: Negligence. A plant used in the manufacture and storage of powder, as to all property and residents in such proximity to it as are subject to danger from its ' explosion, is a nuisance regardless of the negligence in the manner of beeping it.
    2. -: -: Sufficient Evidence. The evidence set out in this case tends to show that defendant’s powder plant was a nuisance.
    3. HIGHWAYS: Railroads: Use. The plaintiff recovered judgment for damages for injuries suffered when powder stored or in process of manufacture on defendant’s powder plant exploded as a train on which she was a passenger was passing the plant. Belli, that the right of the public to use the railroad for the purpose of travel and the use of it for that purpose by the public gave to the railroad its character as a public highway, so far as this case is concerned.
    4. -: -: Bargaining Away Bights of Public. The consent of the railroad company to the use of a tract beside its tracks for powder mill purposes could not affect the rights of a passenger on one of the trains. The railroad cannot bargain away the rights and safety of the public.
    5. NUISANCE: Powder Mill: Competent Evidence. To establish that the powder mill was a nuisance because located in dangerous proximity to residents and property, evidence as to location of villages, schools, roads, farm houses, etc., is competent.
    6. -: Recovery: Concussion: Blasting Cases. Where only proof of the existence of the nuisance and of the consequent injury is required, plaintiff may recover for such of her injuries as were due to concussion. The rule as to blasting (even if the modern tendency of decisions were not against it) has no application to such a case.

      7. INSTRUCTION: Omission of Admitted Pact. It is not error for an instruction to omit to require the jury to find a fact which is clearly established by the evidence and is undisputed.
    8. EVIDENCE: Ultimate Fact: Province of Jury. An inquiry of a physician as to whether the plaintiff’s physical condition could have resulted from the accident as it was described and his answer that “it could cause this condition,” were not an invasion of the province of the jury.
    Appeal from Jackson Circuit Court. — Hon. James E, Slover, Judge.
    Affirmed.
    Kinealy. & Kinealy for appellant.
    (1) The second count of plaintiff’s petition being based upon the idea that the plant is a public nuisance became near a railroad, defendant’s objection to the introduction of any evidence should have been sustained, since: (a) Section 14 of article 12 of the Constitution declaring railroads to be “public highways,” merely means that they are subject to legislative control and have certain gwas-i-governmental rights, such as eminent domain. Farber v. Mo. Pac. Ry. Co., 116 Mo. 81. (b) ' The railroad is private property and no' one has a, right upon it without the consent of the railroad company. Nevada v. Eddy, 123 Mo. 546; Isabel v. Railroad, 60 Mo. 475. (c) Even if appellant’s plant were a dangerous thing, yet the fact that it is located .near a railroad could not constitute it a public nuisance, although it might be a private one.”22 Cyc. 1152; Martin v. St. Joseph, 136 Mo. App. 320. (d) For the maintenance of a private nuisance no one has a right of action except the owner of the premises, and not even he if he consents to it. Ellis v. Railroad, 63 Mo. 131; Whalen v. Baker, 44 Mo. App. 290; Kavanaugh v. Barker, 131 N. T. 211. (e) Mrs. Liggett’s complaint, if any she has, should be founded on negligence. The defendant would then have open to it the defenses of accident, contributory negligence and the exercise of ordinary care, which could not be set up in a case based npon tbe maintenance of a nuisance. Casey v. Bridge. Co., 114 Mo. App. 61; Paddock v. Somes, 102 Mo. 239.' (2) Tbe instruction that plaintiff conld not recover should bave been given because: (a) Tbe petition does not state a cause of action, nor does tbe evidence malee out a case of liability, inasmuch as a railroad is not a public highway in such sense as to make tbe powder plant a public nuisance, because of proximity to tbe railroad. 22 Cyc. 1152; Farber v. Mo. Pac. Ry.-Co., 116 Mo. 81; City of Nevada v. Eddy, 123 Mo. 546 ; Isabel v. Railroad, 60 Mo. 475; K. C. Ry. v. K. C. Ry., 118 Mo. 599; Schae-fer v. Railway Co., 128 Mo. 64; Reynolds v. Transit Co., 189 Mo. 409; Kavanaugh v. Barker, 131 N. T. 211; Ellis v. Railroad, 63 Mo. 131; Whelan v. Baker, 44 Mo. App. 290. (b) Tbe explosion and not tbe maintenance of tbe alleged nuisance was tbe proximate cause of plaintiff’s injuries. Hulk v. Thompson Tran. Co., 135 Mo. App. 119; Clemens v. Railroad,-53 Mo. 366; Logan v. Wabash Ry. Co., 96 Mo. App. 461; Lawrence v. Ice Co., 119 Mo. App. 316; Haley v. Transit Co., 179 Mo. 30; Bokamp v. Railroad, 123 Mo. App. 270. (c) As tbe evidence, following tbe petition, shows that plaintiff was injured only by concussion from tbe explosion, she cannot recover simply by showing tbe explosion and injury. Thurmond v. Lime Ass’n., 125 Mo. App. 73; Booth v. Railroad, 140 N. T. 267; Benner v. Dredging Co., 134 N. Y. 156; Simon v. Henry, 62 N. J. L. 486; Sowers v. McManus, 214 Pa. St. 244; Kerbaugh v. Caldwell, 80 C. C. A. 470; Bessemer C., I & L. Co.-v. Doak, 152 Ala. 166; Hieber V. Cent. Ky. T,r. Co., 145 Kyi. 108. (3) Tbe railroad not being a public highway tbe plant could not, because of proximity to the railroad, be any kind, of a nuisance if maintained by consent of tbe owner of tbe railroad and therefore tbe court erred in striking that matter out of tbe answer. 2 Wood on Nuisances, see. 806, p. 1187; 29 Cyc. 1259; 21 Am. & Eng. Eney. Law, p. 723. (4) Tbe court erred in admitting tbe following evidence, viz: (a) Evidence as to tbe location of defendant’s plant with, reference to the village schoolhouse, public buildings, etc. And the court also erred in overruling defendant’s motion to strike the allegations as to these matters out of the petition. No legal right of plaintiff as to these were violated. Bishop on Non-contract Law, sec. 411; 29 Cyc. 1154; Powell v. B'rick & Tile Co., 104 Mo. App. 713; Blackford v. Construction Co., 132' Mo. App. 157. (b) The questions put to Dr. McKenzie and Dr. Craig, were not proper hypothetical questions and put them in the place of the jury. Eoscoe v. Met. St. Ey. Co., 202 Mo. 549. (5) Even on plaintiff’s own theory, her instruction on the right to recover is erroneous as predicating that right on a finding solely and merely that the explosives were kept, “near” the railroad, without any qualification whatever. Certainly, there could he no nuisance unless the explosives were kept so near as to be dangerous to persons on the railroad. Whitfield v. .Carrollton, 50 Mo. App. 98 ; Harper v. Oil Co., 78 Mo. App. 338; Schmidt v. Disk Co., 90 Mo. 284; Witte v. Stifel, 126 Mo. 295; Beck v. Brewing Co., 167 Mo. 195; Loth v. Theater Co., 197 Mo. 328; 1 Wood on Nuisance, pp. 6-7; 12 Am. & Eng. Ency. Law (2 Ed.), p. 506. And the mere fact that this explosion occurred and injured plaintiff was no evidence that such explosion and result were likely to occur. Beasley v. Transfer Co., 148 Mo. 421.

      W. D. Swmmers, fV. L. McSpadden and Ball & Upland for respondent.
    (1) The injuries of respondent having been caused by reason of the maintenance of a public nuisance by appellant, no allegation or proof of negligence was essential to recovery. Scalpinov v. Smith, 154 Mo. App. 524; Schnitzer v. Powder Mfg. Co., 160 S. W. 282; Jewell v. Powder Co., 166 Mo. App. 555; State ex rel. v. Powder Co., 259 Mo. 254. (2) Appellant’s objections to hypothetical questions asked Drs. McKenzie and Craig, as to whether respondent’s injuries could have resulted from the accident as described in the questions, are not well taken. Taylor v. Railroad, 185 Mo. 239, 256 ; Railroad v. Railroad, 256 Mb. 208.
   BLAIR, J.

Respondent recovered judgment for damages for injuries suffered when powder stored or in process of manufacture on • appellant's premises exploded as a train on which respondent was a passenger was passing appellant’s plant. After an effort had been made to prohibit action in the Court of Appeals, the cause was heard there and then transferred here.

• The answer admits that “at the times mentioned in the petition, it [appellant] was a corporation and owned and operated a plant for manufacturing powder near Holmes Park in Jackson County, Missouri;” avers it owns the tract upon which its plant is situated and that the tracks of the St. Louis & San Francisco Railway adjoin .this tract on the west. The evidence tends to show the village of Plolmes Park is located adjoining the north boundary of appellant’s property; the village consists of a store, post office, blacksmith shop, school- and a number of dwellings, and is a little- over a quarter of a mile from the site of the building in -which the explosion occurred; the school is nearer than any other part of the village; the village of Hickman’s Mill is about one and one-half miles away; the surrounding country is somewhát thickly settled for a farming community, with the usual public roads running through it; two railroad companies used the Frisco tracks which pass the powder plant and operated eight passenger trains and numerous freight trains, daily, over the tracks beside the plant; the explosion occurred in the glaze mill and its force broke windows and doors and wrenched timbers in houses within a radius of more than a mile and a half; threw large iron castings over a quarter of a mile and utterly destroyed the glaze mill, a building fifty by seventy feet in size; the railroad tracks were one hundred to one hundred and fifty yards from the glaze mill at the point at which the train was when the explosion occurred; the glaze mill was used in the final process of manufacturing, and contained eight barrels two and one-half by five feet or more which, in glazing, were half filled with powder and then revolved for the purpose of glazing the contents; when this process was finished the powder was hauled away in tramway trucks in loads of about 600 pounds each. There was also evidence tending to show respondent was injured.

I. “A powder magazine, as to all property and residents in such proximity to it that they are subject to danger from its explosion, is a. nuisance regardless of the question as to negligence in the manner of keeping it.” [State ex rel. v. Excelsior Mfg., Co., 259 Mo. l. c. 271.]

II. There was substantial evidence tending to show this plant was a nuisance. [State ex rel. v. Powder Mfg. Co., supra, l. c. 278, 279.] That case involved the same plant; and while the evidence is not identical, it is sufficiently so to justify the application of the rule in that case.

III.It is contended the railroad was not a public highway “in such sense that the location of a powder factory close to it could be held to constitute the powder mill a public nuisance.” In dealing with this identical .contention in another case Against thiis appellant (Schnitzer v. Powder Mfg. Co., 160 S. W. l. c. 286), the Kansas City Court of Appeals held plaintiff (in that case) “was as much a user of a public highway as she would have been had she been using the wagon road. So far as the rights of the users are concerned, the character of the use and purpose, not the ownership, of a utility determines whether it should be classed as public or private. ’ ’

The cases cited by appellant hold that railroads are not public highways in such sense (1) that one may-ride without paying fare, or (2) so as “to throw them open as thoroughfares for pedestrains,” or (3) so that they can escape taxation. - These decisions are beside the mark. Railroads are clothed with a. public use. They must carry all who apply and tender proper fare. The public has the right to use them for the purpose of travel. It is the public which does use them. As the Court of Appeals held, it is this use and this right which give roads their character as public highways so far as this case is concerned.

IV. The consent of the railroad to the use of the tract beside its tracks for powder-mill purposes could not affect the rights of respondent. The railroad could not bargain away the rights and safety of the public, of which respondent was a member.

Y. The evidence as to the location of the villages, school, roads, farm houses, etc. was competent. The whole situation within the zone .of danger constitutes the b'asis f°r determining whether a public nuisance existed. One charging the existence of such a nlljgaiice is nof; limited to proof of his own presence within that zone.

VI. It is urged respondent cannot recover for such of her injuries as were due to concussion. Appellant invokes a rule sometimes applied in cases in which it appears one has resorted “to blasting to adapt his property to a lawful use, that mode being the x A , ’ , , . only proper one, and the work being conducted with due care.” The later tendency is against the rule in such cases. [Hickey v. McCabe, 30 R. I. 346, 27 L. R. A. (N. S.) 425.] The question presented in those decisions was whether proof of negligence was necessary. In this case the proof of the existence of the nuisance and the consequent injury was all that was required. The cases appellant cites are inapplicable. [Scalpino v. Smith, 154 Mo. App. 524; Schnitzer v. Excelsior Powder Mfg. Co., 160 S. W. l. c. 287.] “While the last opinion may not he an .official pronouncement of the Court of Appeals, the conclusion it reaches on this question is correct.

YII. It is urged instruction one failed to require the jury to find that the powder was stored and kept dangerously near the railroad track. The omission of word dangerously, or its equivalent, is the ground of this objection. The same instruc.tion tells the jury that the keeping of “large quantities .of explosives dangerously near'to public places, such as railroads or county roads, so as to constitute a menace to the safety of persons while traveling thereon, is a public nuisance.” The answer admits the railroad right of way is adjacent to appellant’s premises. The evidence was clear and undisputed that the glaze mill was hut a short distance from the railroad track. There was no contention about this matter. In these, circumstances, this assignment must he overruled.

VIII. Physicians who had treated respondent for her injuries gave testimony as to the conditions they found. One of them was asked, whether the conditions he found could have resulted from the accident as it was described. The question was objected to. The witness answered that “it could cause this condition.”

It is contended this constituted an invasion of the province of the jury. The authorities are examined and the point ruled against appellant in Taylor v. Metropolitan St. Ry., 256 Mo. l. c. 208 et seq. Another physician was questioned the same way, hut testified merely that respondent’s condition indicated she- was suffering from violence of some kind.

The judgment is affirmed.

All concur, except Bond, P. Jwho is absent.


source: Caselaw Access Project

author: BROWN, C.

license: Public Domain

text:
    A. J. HYNDS et al., Appellants, v. GEORGE HYNDS.
    Division One,
    April 8, 1918.
    1. LIMITATIONS: Acknowledgment of Ownership. A frequent statement by a- mother that her homestead, on which she and her son had resided from his infancy until he was forty years of age, that the land belonged to him, without any act or declaration on his part to indicate any connection between this continued acknowledgment and his position on the land, is not sufficient to establish, after her death, ownership or title by limitations, since there was nothing in the nature of the possession of either inconsistent with the possession of the other.
    2. -: Cotenancy. To bar the other children by adverse possession to land occupied by their mother and a son as a homestead, the son must establish such an unequivocal change in his conduct after her death as to constitute notice of a severance of the possessory relation of tenants in common, and actual possession for ten years thereafter. For such son to simply remain on the land after his mother’s death, and continue to work it as he had done, with his brother, during her life, and receive, without objection, the profits, with the brother while he lived and by himself after the brother’s death, is not sufficient to give notice of a claim adverse to the other children.
    3. EJECTMENT: Equitable Answer. If the answer sets up a purely equitable defense to plaintiff’s action of ejeetmeht (which is an action at law), the cause is converted into a suit in equity- and the appellate court will examine and weigh the evidence and determine its sufficiency to sustain the defense pleaded.
    4. RESULTING TRUST: Guardian and Curator. When a trustee purchases property with trust funds and takes the title in his own name a trust results for the benefit of the trust estate, which may be followed in favor of persons not named in the deed in proportion to the amount of the interest of each in the fund, and the rule applies to executors, administrators and guardians of minors, who invest estate funds in lands and take the title in their own names or in the names of some of the beneficiaries.
    5. WIDOW: Interest in Husband’s Personalty: No Exercise of Option. Where under the statute the widow was entitled absolutely to a share in her husband’s personal estate equal to a share of a child, or at her option to one-third of it absolutely, subject in either case to the payment of his debts, it will be assumed, in the absence of anything in the record to indicate that she exercised her option, that she was satisfied with the share of a child, although there were' six children.
    6. -: Resulting Trust: Purchase of Lands With Estate Funds. The administratrix, hy her appointment, became a trustee of the entire personal estate, and if instead of distributing it she invested it in lands, causing some of them to be conveyed to intestate’s children and taking the title to one tract in her own name, such lands, for purposes of distribution, were a part of the trust fund.
    17. -:-:-: Equal Distribution. And if all the children received lands and other property, equal in value to their respective shares of their father’s estate, except the youngest, who .received nothing, and the mother took title to one tract in her own name, whose value was equal to that of the others, a decree vesting the title to this fine tract in said youngest son,' upon the mother’s death, according to her frequently expressed intention, does equity.
    8. EJECTMENT: Heirs Bound by Acts and Declarations of Ancestor. After the death of the widow leaving the youngest son in possession, all the other heirs of herself and husband brought this suit against him, in ejectment, to recover their undivided interest in the land as heirs of their mother. -Bélcl, that the plaintiff’s are bound by the acts and declarations of the mother with respect to the trust and character of her possession, to the same extent that she, if living and a party, would be bound upon a trial of the same issue.
    9. INFANT: Charged with Childhood Expenses. Where the father died when defendant was two years old, and his mother, the ad-ministratrix, distributed the father’s personal estate by buying farms for the adult children and one for herself, upon which she and defendant remained until her death, he is not, in determining whether he received his distributive share of the estate, to be charged with his nurture during infancy, where he received little education and worked faithfully on the mother’s said homestead.
    Appeal from Macon Circuit Court. — Hon. _ Nat M. Shelton, Judge.
    AFFIRMED.

      J. M. McCall, P. J. Beiger and Joseph Parle for appellants.
    (1) Parol testimony to impress upon the clear legal title- an inplied trust, in order to accomplish such an object and secure sucb an end, must be clear, strong and unequivocal, so degnite and positive as to leave no reasonable doubt in tbe mind of tbe chancellor as to tbe existence of sucb trust. Allen v. Logan, 96 Mo.- 591; McFarland v. LaForce, 119 Mo. 500; Adams v. Burns, 96 Mo. 361; King v. Isley, 116 Mo. 155; R. S. 1855', sec. 4, 669. (2) A resulting trust can only arise where tbe person claiming tbe benefit of tbe trust has furnished tbe consideration money. The payment of tbe consideration money is tbe foundation of the trust; that is, tbe trust arises out of tbe circumstance that tbe money of tbe real purchaser, and not of tbe grantee in tbe deed, paid for tbe land. Shaw v. Shaw, 86 Mo. 594; Johnson v. Quarrels, 46 M,o. 423; Ringo v. Richardson, 53 Mo. 385'. (3) Do not all tbe known facts, coupled with tbe Dower law as it stood at tbe date of her husband’s death, raise a reasonable doubt? If she was entitled by law to one-third of her deceased husband’s estate at tbe time of her husband’s death, in tbe absence of conclusive evidence that she waived it, is not the presumption conclusive that she took it? Especially so, in view of tbe irresistible mathematical calculation based on the record that a child’s share was $558.74. The record shows that there were six children when she accounted for $2234.96, which was four-sixths. The whole estate going to the children would therefore be $3352.44. If she took her third then $3352.44 is two-thirds of the whole estate and one-third of her share was $1676.22, and the whole estate was evidently of the value of $5028.66. The consideration she paid for all the land she bought and kept to the date of her death was $1650.

      Campbell & Ellison and Higbee & Mills for respondent.
    (I) It is conclusively shown by the evidence of plaintiffs and defendant that at the time of the death of John Hynds, his widow, Permelia Hynds owned no property. That all of the property transferred to their children was purchased with the trust funds which came into the hands of the widow while she was acting as administratrix and guardian. That many years ago she had settled with each of her children by segregating the interests .of each in said estate, and setting apart to them their respective interests. That after the settlements with those children there remained in the estate only the lands involved in this controversy. It is conclusively shown, in fact admitted, that the defendant,'' George Hynds, never received anything from the estate except the lands involved in this controversy. (,2) It is yell settled law in this State when a guardian, curator, or administrator purchases property with, trust funds, a trust results in favor of the ward or beneficiary. Patterson v. Booth, 105 Mo. 405; May v. May, 189 Mo. 485; In re Ferguson estate, 124 Mo. 574. The conceded fact that Permelia Hynds owned no property at the time of her husband’s death and that she afterwards • acquired title in her own name to various tracts of land, is in itself sufficient evidence to show that the lands were brought with trust funds. Prewitt v. Prewitt, 188 Mo. 675. (3) Plaintiffs insist, however, that the 80' was bought by Mrs. Permelia Hynds with her individual money. If that be true it was not clothed with a trust and she could give it to her • son George, as she did when he attained his majority. The failure to execute a deed will'-'not defeat her purpose. Equity regards that as done which was intended to be done. Besides, the evidence shows that Mrs. Hynds and all her children dealt loosely with each other. (4) On the first trial the court found that the 80 acres belonged to George Hynds but that the other two tracts belonged to plaintiffs and defendant, ordered them sold and the proceeds distributed. By stipulation it is agreed that at the instance of the plaintiffs this was done, and the proceeds divided. Plaintiffs took the fruits of that judgment and are con-, eluded by it. If the trial court took that view of the case, absent declarations of law, it cannot be reviewed. 2 Cyc. 651, e.
   BROWN, C.

This is ejectment begun in the Adair Circuit Court in March, 1909, to recover three tracts of' land in that county. The first and largest of these tracts is described as follows: The south half of the southwest quarter of Section 12 of Township 61 of Range 15 except the right of way of the Wabash Railroad. It is not necessary to describe the two smaller tracts.

The petition was in the ordinary form, alleging that plaintiffs were entitled to possession on October 4, 1899, and the ouster on May 18, 1908.

The answer was (1) a general denial; (2) a prayer that the court ascertain and adjudge the right, title and interest of the parties plaintiffs and defendant respectively, and to adjudge the defendant to 'he the absolute. owner; (3) that his father, John Hynds, died in June, 1858, leaving his widow, Permelia Hynds and their children W. Gr. Hynds, A. J. Hynds, Richie Hynds, Jennie Mahaffy and defendant as his only heirs; that his mother toot letters of administration of the estate, consisting of money, notes and other personal property, out of which she purchased the land in controversy; that afterward she settled with each of the other heirs, paying them in full their respective shares, after which there only remained these lands, which did not exceed-his distributive share of the estate, and which she promised to convey to him, and which he accepted as his distributive share of the estate of his father, and took possession of the same, and that for more than ten years before the death of his mother and up to the time of the beginning of the suit had remained in actual and continuous possession, claiming title thereto.

The affirmative matters so pleaded were put in issue by the reply, which alleged that from the time of the death of her husband, his mother had furnished the defendant with food, clothing and shelter, by which all his interest in his father’s estate had been consumed.

The cause came on for trial in the Adair Circuit Court, and resulted in a judgment vesting the entire title to the eighty-acre tract we have described, in the defendant, to the exclusion of plaintiffs and each of them, and declaring the title in fee to the two smaller tracts to be in the plaintiffs ,and defendant according to their respective interests as heirs of Permelia Hynds.

Prom this judgment an appeal was taken to this court, in which it was reversed in so far as it-was in favor of defendant as to- his full ownership of the eighty-acre tract, and remanded for a new trial upon that issue, which is all that is left in the case. Upon the going down of our mandate a change of venue was-taken to the circuit court for Macon County, where a new trial was had; resulting in the judgment from which this appeal is taken. It adjudges the title to the eighty acres to be in defendant free from all claims of plaintiffs or either of them.

Although the title of the cause is not mentioned, there is enough information scattered through the appellant’s abstract of the record to justify the inference that the plaintiffs include all the living children of John and Permelia Hynds excepting defendant, together with the living children of William G. Hynds, a son, who died in March, 1899. The defendant is their youngest son. John Hynds died in A,dair County in June, 1858, leaving surviving him the said Permelia, his widow, and six children, to-wit, W. ,G. Hynds (since deceased as' above stated), A. J. Hynds,' Richie Hynds, Jennie Mahaffy, Mary Hynds and George Hynds, the defendant. Richie died about two years before the institution of this suit, childless and unmarried. Mary died at sometime not stated in the evidence. Permelia Hynds died in 1898, seized in fee simple of the eighty acres of land in controversy. At the time of the death of Mr. Hynds, the defendant, his youngest child, was but two years old. Nothing is said about Mrs. Mahaffy’s husband, so that we may assume that she is a widow.

Immediately after the death of Mr. Hynds his widow took out letters of administration and filed an inventory of his estate, which consisted entirely of personal property, mostly cash, and notes, and amounting in all to $5452.91. She had no property of her own other than her interest in this estate. The inventory was dated and filed Angnst 11, 1858.

September 21, 1858, Mrs. ITynds purchased the west forty acres of the land in controversy, taking title in her own name and paying’ $750‘ therefor. On the same date she purchased the two small tracts of timber land originally involved in this suit for $225, .taking the title in her own name, and April 27, 1864, she obtained the other forty now involved in this suit, taking the title to herself.

On May 6, 1865, she made a statement as guardian of the persons and estates of “the minor heirs of John Hynds, deceased,” in which she reported that she made final settlement as administratrix of his estate at the April term, 1863, of the probate court, at which she paid W. G. Hynds, one of the heirs, $450, and that there was in her hands at that time belonging to the minors $3343.39. This statement showed a balance still in her hands of $2234.96, with which she accordingly charged herself as of-that date. On the next day after this statement, she gave bond as guardian in the sum of $5000, which was duly approved. The receipt of W. G-. Hynds for $450 is dated August 7, 1863. On August 9, 1880, the following entry appears: “Estate of Hynds, minor heirs, Permelia Hynds, G. & C., annual settlement filed.” And on the same date the following: “Estate of Jennie Mahaffy, Permelia Hynds, G. & C., final settlement filed and continued.” All other records of the probate court tending to throw light on this case seem to have been lost or destroyed.

' On August 8, 1863, Mrs. Permelia Hynds conveyed to William G. Hynds eighty acres of land in Adair County for the expressed consideration of $150.

On August 31, 1866, one William Kirby and wife conveyed to Richie Hynds seventy acres of land in Adair County for $1400.

On December 18,1868, she conveyed to A. J. Hynds two lots in Kirksville for $800.

Doctor A. J. Hynds, one of the plaintiffs, testified very fully and frankly of his own connection with the estate of his father and the circumstances of the purchase from Kirby .of the seventy acres of land conveyed to Richie. He himself according to his testimony received a considerable amount from the estate expended uppn his professional education, as well as the Kirksville lots, and he does not intimate that the amount so received was not as much as his full share of his father’s estate. That W. iG. Hynds, the oldest of the children, received eighty acres of land as valuable as that now in controversy is not questioned. The evidence also shows that in the purchase of the Kirby land Richie was as well taken care of as his- older brother. It is also freely admitted that George never received anything from the estate of his father, unless his nurture during infancy by his mother should be charged to him. He received no costly education and, from the time he was big enough, worked on the farm in controversy, contributing in that v^ay to his mother’s support. A,s to Mrs. Mahaffy she seems to have received a good education, both literary and musical, and a piano, the value of which is not stated.

At the time of the death of her husband Mrs. Permelia Hynds resided in Millard, but afterward went to live on the land in controversy with her family, including her two sons Richie and George, both of whom remained unmarried. After George became old enough the boys worked it. Until the mother’s death the place remained the family homestead. In 1908, Richie died, and George continued to live there and worked the land up to the time of the trial. Richie, at the time of his death, devised his seventy acres to George. This, as stated by one of the witnesses, created some dissatisfaction in the family. To use the words of the witness, it made them sore.

There was muela evidence to the effect that Mrs. Hynds had stated-frequently that this land belonged to G-eorge; that all the others had received from her their share in the estate of their father and that George had received nothing; and there was evidence to the effect that she had urged him to take her to a conveyancer to make a deed,but that he had been “dilatory” and had not done it. While the plaintiffs proved that George and his brother Richie, when they went to town, used frequently to come home under the influence .of intoxicants, and that Mrs. Hynds would sometimes get “ei'anky,” there was no question as to the industry and ability of both, and the farm was kept in good condition.

I. There seems to be an element in human nature which might with propriety be called the family sentiment, out of which much litigation has vexed the courts. ^ resents favoritism among relatives of the same degree of consanguinity, and sometimes sets the most affectionate families by the ears. In this case the very best of feeling seemed to prevail in the Hynds family for many years. The death of the mother, who seems from the evidence to have been a woman of strong character and excellent business judgment, did not disturb' or change their, relations to each other, and the defendant continued, during the succeeding eight years in the unquestioned possession of this land, farming it in connection with bis partner as before, without a word of protest or a call to account for his stewardship, until the death of Richie. While the appellants account for this in their testimony by the statement, in substance, that it was a small matter which did not, in their estimation, justify the stirring up o’f any disagreeable feeling in the family, it is impossible to avoid the inference that the act of Richie in leaving his nice little farm to his partner brother instead of dividing it among all, had something to do with the suppression* of these sentiments. They are now here in pursuit of their legal rights, which it has thus become our duty to determine. It is gratifying, under these circumstances, to find little in the record to indicate that their statements have been colored by self-interest or personal feeling.

II. We find little in the record to support the theory that the plaintiffs are barred of their possessory action by the Statutes of Limitation. The legal title of the mother constitutes the very foundation of the plaintiffs ’ claim. The defendant relies upon her continued acknowledgment of the character of his right, but has shown no act or declaration of his own to indicate any connection between that claim and his position upon the land. They were both there, and we can see nothing in the nature of the possession of either inconsistent with the interest of the other as asserted in this suit. The possession of the defendant is not shown to have been exclusive of or adverse to the ancestor of plaintiffs during her life. Nor do we think that the evidence discloses such an unequivocal change in the conduct of defendant after the death of his mother and more than ten years before the institution of his suit, as the law requires to constitute notice of a severance of the possessory relation of tenants in common and of a claim adverse to the true title. It would be a dangerous rule which would permit the title of the owner to be divested by any other than the most overt acts brought home to him so clearly that he cannot in reason close his eyes and ears against them. The 'burden is upon the defendant to fix the time when he began to hold adversely to the true title. [Missouri Lumber & Mining Company v. Jewell, 200 Mo. 707, 716; Hunnewell v. Adams, 153 Mo. 440; McCune v. Goodwillie, 204 Mo. 306, 339, and cases cited.] There can .be nothing clandestine or stealthy about adverse possession. [Meier v. Meier, 105 Mo. 411, 431.] As we have said in this case (Hynds v. Hynds, 253 Mo. 20, 33) “to establish such possession in favor of one cotenant, as against another, there must be such outward acts of exclusive ownership as to impart notice of adverse possession to other cotenants;” and that “the acts relied on, whether verbal or otherwise, must, be open, clear and so unequivocal as to coerce belief.” That is still the law in this case.

III. We now come to the real question which divides the parties to this cause and for the trial of which alone it was remanded to the Adair Circuit Court in a former heating by the court. The defense stands upon the theory - that upon the purchase of this land by Mrs. Hynds a trust resulted to the estate of her deceased husband of which she was the administratrix and out of the funds' of which it was paid for, and that the defendant is now the sole beneficiary of that trust and is consequently the equitable owner of the land and entitled to relief as suggested. The proceeding is ejectment, and as such is an action at law as distinquished from a suit in equity. Its object is to try the right to the possession of the land, and to enforce that right by an appropriate judgment. The Code (R. S. 1909, sec. 1806) provides that the answer shall contain “a statement of any new matter constituting a defense or counterclaim,” and “may set forth ... as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” [Id., sec. 1807.] These provisions are the fruit of the statute providing that in this State' there shall be but one form of action.

This defense is, within the meaning of the provisions we have quoted, a purely equitable one, and under the practice as it existed before the Code, required an equitable remedy. Its object is to establish a trust in lands, and to afford a complete and appropriate remedy to the equitable owner. A judgment for the defendant in ejectment on that issue would necessarily afford him complete equitable relief and would constitute a complete adjudication of the equitable issue involved. [Chouteau v. Gibson, 76 Mo. 38.] The testimony necessary to support it would have to- be judged by those equitable rules established for the purpose of protecting legal rights and not by the ordinary rules applicable to the trial of actions at law. While we make these observations for the purpose of directing attention to the fact that we have considered the questions relating to the form of trial adopted in the circuit court and the consequent credit to which its findings upon questions of fact is entitled, we do not consider such questions important in this case in view of the conclusion at which we have arrived. We will therefore treat the issue as an equitable one, triable by the court, and examine the weight and sufficiency of the evidence accordingly.

IV. Both parties agree that when a trustee purchases property with trust funds and takes the title in his own name a trust results for tire benefit of the trust estate, and that this may be followed in ' ** favor of persons not named in the deed in proportion to the amount invested by each. [In re Ferguson’s Estate, 124 Mo. 574; Patterson v. Booth, 103 Mo. 402; Hynds v. Hynds, 253 Mo. 20; Freeman v. Maxwell, 262 Mo. 13, 21.] That this rule applies to executors, administrators and guardians of minors, as well as to other trustees, goes without saying. We have only to apply these facts to this simple and salutary principle to arrive at a correct solution of this case. Although the record is not as instructive as we could wish, nor as it should be, there is little difficulty in arriving at a satisfactory result.

Mr. Hynds died in June, 1858. Although he had no land he had horses, wagons, cows and other property which indicated that farming was his business and his intention. His estate consisted largely of cash and evidences of indebtedness, inventoried at $5452.91, of which his widow, who .had no property of her own, immediately took charge, having 'been appointed his administratrix. The law at that time provided (R. S. 1855, sec. 4, p. 669) that his widow should he entitled1 absolutely to a share of his personal property equal to the share of a child; or at her option to one-third of his personal estate absolutely, subject in either case to the payment of debts. There is nothing in the record to indicate that she exercised her statutory option, and we must therefore assume that she was satisfied to take the share of a child, of whom there were six. This defendant, the youngest, was then only two years old. By her appointment she became the trustee of the entire fund, neither she nor the children having any interest other than such as was subject to the trust, which included the payment of debts and costs, as well as the distribution of what might be left. Mrs. Hynds had no money of her own. Everything in her hands was included in the trust fund.

She seemed to have a well founded confidence in Adair County land, and immediately upon the death1 of her husband began to buy it with money of the estate. Among other tracts she purchased the land in controversy, which thereupon became in equity a part of the assets in her hands belonging to the estate. Each investment she made from the trust fund became a part of that fund, and its character in that respect followed it through all its subsequent transmutations. The theory suggested by the appellant that she might' separate her own interest in the final distribution from the body of the fund whenever she chose to' do so is without foundation in law or in fact. It may be true that the probate court might, by its order, have directed the severance of this money from the estate, subject to the rights of creditors and other distributees, but that question is not before us for determination. It is sufficient to say that the trust attached to all property in which the fund or any part of it was invested, as against any and all persons receiving the titles at the time of the-purchase, or afterward with knowledge of the source from which the purchase money had come. [See cases above cited.] It follows from this that all property purchased by Mrs. Hynds with the money of the estate in her hands was in equity the property of the estate and so continued until final distribution to those entitled. The inquiry is thus, reduced to the interest of defendant in the estate of his father, of which these lands constituted a residuum, at the time of the death' of his mother.

We will assume, because it is admitted by the parties, that he never received anything from the estate unless his, nurture as an infant be charged against him, and there is nothing in the record to indicate the propriety of doing this. He was an infant only two years old at the time, and during the forty years succeeding the death of his father, he remained on the land with his mother. Whatever she may have done with the rest of the estate, he was entitled to his distributive share from this so long as it should remain in her hands or in the hands of her heirs. There is nothing in this meager record to indicate that he ever went to school, and much to show that he worked. It is shown by evidence apparently credible and upon which no word of suspicion has been breathed, either with respect to the character of the witnesses or the truth of their statements, that during all that time the mother freely stated, in substance, that this particular land belonged to .^eorge, because all the other children had received their share of the estate while he had received nothing. It shows without question that she had attempted to have him take her to town for the purpose of executing a deed to.carry out this design, but that he had been “dilatory.” All this remains undisputed, either directly or by circumstance, and is made probable by the frank admission of Doctor A. J. Hynds, the only one of the plaintiffs alive and in position to know all the facts of the transaction, that Greorge never received anything from the estate. All of the plaintiffs are now seeking to recover the land solely upon the ground tlrat they inherited it from the mother. Her title is the title in question. While, had they been still interested in their father’s estate, they might have proceeded in equity against this land as a part of the trust fund, they have not done so, hut admit by their course that they have no such interest. In that case their remedy would have been in equity and they depend on no equitable title. As we have already said the suit is e-jectment founded solely upon the title of their mother, and in which they claim no equity. They are bound as heirs by her acts and declarations tending to prove the equity of their adversary to the same extent she would be bound were she living. . They have made their bed in the place of their choice and cannot now complain of the hard places in it.

Bearing in mind that while the mother was under no obligation whatever to take her share of her husband’s estate, she was bound to render‘to defendant his full share, we must look to the record to ascertain it. At the door of this inquiry we find it interesting to inquire about the ages of the Hynds children. ..While this must have been a matter of notoriety we find that for the most part it is excluded from the record. There was testimony .of the ages of some of them at the time they testified, but even that date is withheld, the testimony having been taken by deposition or at a former hearing. The order of their birth is given, however, as well as the fact that Doctor A. J. Hynds, the second child, and Richie, the third, enlisted, in the Army of the United States in February, 1862, ‘and served for three full years, having been discharged in the spring of 1865. We have no right to assume that there was any concealment or misstatement about their ages at the time of their enlistment, and note that we have said, in this case when it was here before that they were respectively eighteen and twenty years old at the'time of their enlistment and we will so assume.

The record recites that Mrs. Hynds made final settlement as administratrix of the estate of her husband on August 7, 1863, and that on that date she paid W. J. Hynds $450. On the next day she made him a deed to eighty acres of land described in the evidence as being as valuable as the home farm now in controversy, for the expressed consideration of $150. As he must at that time have been considerably past the age of twenty-one years it would seem that this was sufficient to dispose of his interest in the estate, and the plaintiffs do not question that it amounted to his full share. A receipt for $450 is preserved in the record. Whether Mary, the fourth child, was alive or dead at that time does not .appear. The balance on hand at the final settlement is stated to have been $3343.39. All this appears in a statement which she filed in the probate court May 6, 1865, and upon which she was appointed “guardian and curator of the minor heirs of John* Hynds, deceased.” This does not disclose the number or names of the minor heirs, nor do those facts appear anywhere in the record. It is certain, however, that both A. J. Hynds and Richie had reached their majority. If Mary was then living there were three minors. If she was dead there were but two. Whatever their number may have been the amount of their estate was $2234.96 — a decrease of something more than $1100 from the amount on hand at the final settlement.

On August 31, 1886, Richie received the conveyance of the seventy acres of land near the home farm, which he devised to the defendant at his death in 1908, and on December 18, 1868, Doctor Hynds received by con-veyence from his mother the lots in Kirksville, the deed reciting a consideration of $800. We have carefully examined the testimony of Doctor Hynds and have no doubt that in these transactions both he and Richie received from their mother the full arnomit due them from the estate of Mr. Hynds, as well as from the estate of their sister Mary. The lands were valuable, the seventy acres being worth as much as the land in controversy. While the doctor disclosed the receipt of money and notes that had belonged to his father’s estate, he is living and testifiéd and has no fault to find with the treatment he received in this respect, and Richie evidently found no fault in his lifetime. He lived with his mother until her death. Their relations seem to have been of th'e pleasantest, and his relations with the defendant were such that he gave to the latter his property at his death. The mother seems to have, devoted herself entirely to her children and one cannot read this record without a strong impression that had she lived this difference would not have occurred. That the defendant never received anything either from his father’s estate or from the estate of his deceased sister is not denied, and that she intended this land as his share and purchased it for that purpose is shown by testimony of neighbors and friends,. and even by the testimony of her other living son, so plainly, that it leaves no doubt in our mind of the fact. The only doubt we have had relates to the position of Mrs. Mahaffy, but upon a. thorough examination of the evidence we conclude that she was well taken care of in th'e final settlement which her mother filed in 1880 as her guardian, and which is not preserved. She must then have been thirty years old and capable of fully comprehending her rights; but the matter was dropped in th'e probate court and evidently from her own mind. We see no good ground for reviving it .in her behalf after the lapse of thirty years.

We find from the evidence that the land in question was purchased by Mrs. Hynds with the money of her husband’s estate; that all the other assets of the estate have been fully administered and distributed among the heirs, each one receiving the full share to which he or she was entitled, including the share which descended through the deceased daughter Mary, but that the defendant has received nothing; that the only asset of the estate remaining undistributed is the land in controversy, which amounts to no more than defendant’s share, considered either independently of or with reference to the amount already distributed to the' others; that the land in controversy constitutes the entire residuum of the estate, of which he is the sole owner in equity.

The trial court having taken this view of the matter its judgment is affirmed.

Railey, G., concurs.

PER CURIAM: — The foregoing’ .opinion of Brown, C., is adopted as the opinion of the court.

All of the judges concur; Bond, P. J., in result.


text:
    In re BIRMINGHAM DRAINAGE DISTRICT v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY et al., Plaintiffs in Error.
    Division One,
    April 8, 1918.
    1. GOVERNMENTAL POWERS: Distribution: Legislative Powers Committed to Courts. Duties which are not judicial may be performed by judicial officers unless they are clearly such as are confided by the Constitution to the legislative or executive departments of the State Government.
    2. -: -: -: Drainage District. A drainage district is a public corporation constituted by legislative authority, and may be put into effect either directly or by an appropriate designated agency. That agency may he a court, and the Legislature may make the power of that court in assessing benefits as full and final as if the powers were vested in a board of commissioners or an assessor.
    3. .-: -: -: -: Appeal. The Circuit-Court Drainage Act has separated those proceedings which are purely legislative from those which are constitutionally beyond lgeislative control and .require judicial action for their validity — the matter of assessing damages is judicial and from a judgment thereon an appeal lies; the construction of the• improvements and most of the other proceedings are not judicial, and are such as might have been accomplished through the direct action of the Legislature and its administrative agencies, and as to them an appeal does not act as a supersedeas.

    4. APPEAL: Writ of Error: Drainage District: Review Of Benefit Assessments. The right of review in any case is purely statutory; and though under the general code either an appeal or writ of error is available, the Legislature may restrict the right of review to an appeal, and may confine the review in a drainage district case to questions concerning the damages assessed. An objector to the benefits charged against his property by the circuit court cannot by writ of error have the amount reduced or the assessment reviewed in the Supreme Court.
    5. WRIT OF ERROR: No Notice to Some of Parties. In any event an appellate court cannot review the judgment of a trial court, unless it has all the parties before it who would be affected by' a modification of that judgment; and if it is sought by a writ of error to review the judgment organizing a drainage district and to have the benefits charged against the property of plaintiffs in error reduced by the appellate court, all landowners in the district and all other persons whose property rights would be affected by such reduction and will not join in the writ must be given notice, according to Section 2071, Revised Statutes 1909, and if not so notified the writ must be dismissed.
    Error to Clay Circuit Court. — Eon. Frcmh P. Divelbiss, Judge.
    Writ dismissed.

      James L. Minnis, E. J. Nelson, N. S. Brown, Fred S. Eudson, M. G. Roberts and E. L. Moore for plaintiffs in error.
    (1) Under tlie undisputed and uncontradicted facts shown in this record, the amounts severally assessed as benefits against each of the railroad companies respectively on account of the construction of the levee are so palpably and grossly excessive and out of all proportion to the decreased- cost of maintenance and the increased physical efficiency of the roadbeds that the contributions in cash and the outlay of work and material exacted are, as a matter of law, conficatory, arbitrary and constitute a flagrant abuse of the rights of property in contravention of the Fourteenth Amendment to the Federal Constitution and the provisions of the State Constitution. The same general principles of law guiding a court in determining whether damages awarded are excessive, arbitrary or unreasonable, as a matter of law, must of necessity be applied to ascertain the excessiveness or the unreasonableness of the amounts of benefits assfessed. The courts have uniformly held that the contribution exacted from the owner of realty on’ account of a public improvement must not exceed the actual benefit received and any assessment in excess of the actual benefit is pro tanto an unconstitutional taldng of private property for public use without just compensation. In other words, the sum assessed must be in proportion to the special benefit conferred upon the owner to the property and must be limited to the amount of benefit received. Where damages from overflow to a railroad track, for example, during a period of fifty years did not exceed the sum of $750', an assessment of benefits upon such a railroad track in the sum of $18,000' in cash and $25,000 in outlay of labor and materials is nothing less than a pure .case of flagrant, confiscation and spoliation. 10 Am. & Eng. Ency. Law (2 Ed.), pp,. 254-6, also vol. 25, p. 1172; 2 Page & Jones on Taxation by Assessment, sec. 665, p. 1139; vol. 1, sec. 78, p. 131; vol. i, sec. 86, p. 143; vol. 1, sec. 118, pp. 197, 198, 199 and 200'; Theilen v. Board of Supervisors, 1601 N. W. 915; Railroad v. Board of Supervisors, 153 N. W. 110; Levee Dist. v. Dunbar, 155 S. W. 96; Realty. Co. v. Granite Co., 240 U. S. 58; Drainage Dist. v. Livingston, 11Ó N. E, 806 ; Carson v. Sewerage Com. 182 U. S. 403; Moore v. Yonkers, 235 Fed. 491; Wagner v. Baltimore, 239 U. S. 220; Houck v. Drainage Dist. 239 U. S. 262, 265; White v. Tacoma, 109 Fed. 32,1. c. 34. (2) Remote, contingent, speculative and uncertain benefits are not regarded in determining the amount of local assessments. Where a railroad track has been in existence for a long period-of years and credible proof is available as to the amount of damages caused by the overflow of the river to the track during that period, the amount of future benefits to the track by the erection of a levee along the iiver may be ascertained with almost mathematical certainty. When such1 facts'as to damages, injury or impairment in the past by overflow are shown by credible evidence, supplemented by G-overnment records with definite certainty, the opinions, theories, speculations, prophesies and assumptions of expert witnesses as to future benefits should be ignored. Unquestionably there are uncertainties where the legislation determines benefits conferred on property by such public improvements as sidewalks, sewers and street pavements by the front foot or other proper rules, but here the determination of benefits in such particular case has been delegated to a court that can and must proceed on evidence and facts, and, as the operation of physical laws in the future, may be judged by their effect in the past, future benefits from the construction of a levee can be definitely determined by ascertaining the injury or damage in the past to a railroad track from an overflow which the levee is designed to prevent. Hence, courts need not resort to speculative theories and remote contingencies. 25 Am1. & Eng. Ency. Law (2 Ed.), p. 1159; Coal & Coke Co. v. Hartman, 491 C. C. A. 244, 111 F'ed. 916,- Drainage District v. Railroad Co., 295 Ill. 398; 1 Sedgwick on Damages (9 Ed.), sec. 170; p. 317. (3¡) The court erred in refusing to allow the jury to pass upon the benefits to the three railways as well as the damage. Hull v. River Dist., 219 Ill. 454; Joliet v. Drainage Dist., 222 Ill. 441. (4) The court erred in assessing benefits and damages in this case for the construction of a levy because under the drainage statute under which this district was organized and the court was proceeding, the court had no jurisdiction or authority to order the construction of a levy costing $350,000 in the absence of any plans or provisions for drainage whatever. Drainage Dist. v. Railway 266 Mo. 60; Drainage Dist. v. Ackley, 192 S. W. 727. (5) Section 3 of article 6 of the Constitution provides that the Supreme Court shall have a general superintending control over all inferior courts and shall have the power to issue. writ of habeas corpus, mandamus, quo %oarranto, certiorari and other original remedial writs, and to hear and determine the same. Under this provision this court may issue writs of error without legislative restrictions, and a litigant has a constitutional right to such writ and to a full review of his case. St. Louis v. Marchel, 99 Mo. 475; Jim v. State, 3 Mo. 147; Blunt v. Shepard, 1 Mo. 219; Calloway v. State, 1 Mo. 211; English v. Mullanphy, 1 Mo. 780 ; Tentón v. Dugal, 1 Mo. 761; State v. Thayer*, 158 Mo. 36; Lynes v. State of Alabama, 5 Porter (Ala.) 236; Ex Parte Anthony, 5 Ark. 358-; Walker v. Dobson, 135 Mo. 20; Densmore v. Manchester 81 Atl. (N. II.) 533; Railroad v. Railroad, 29 Wash. 491; State ex rel. v. Superior Court, 143' Pae. (Wash.) 168. (6) When a statute provides for an appeal which is limited in its scope, a citizen may not thereby be deprived of his constitutional and statutory right to a writ of error. Bowers v. G-reen, 2i Ill. 41; Railway v. Railway, 29 Wash. 491; State ex rel. v. Superior Court, 143 Pac. (Wash.) 168; Peck v. Hapgood, 51 Mass. 174; Day v. Laflin, 47 Mass. 280; Eppstein v. Holmes, 64 Tex. 560; Smith v. Morrow, 52 Pac. (Colo.) 1110: (7) Although condemnation proce¡eding|s are special statutory proceedings and were unknown to the common law, this court has always held that writs of error lie from final judgments in all such proceedings by virtue of the statute which provides that a writ of error lies from the final judgment or decision of the court of record in all cases. Moberly v. Hotter, .266' Mo. 457; Railway v. Railway, 100' Mo. 425; Railroad v. Fire Brick Co., 85 Mo. 332; Railroad v. Lewright, 113 Mo. 660; Lee v. Railroad, 53 Mo. 178; Drainage Dist. v. Jamison, 176 Mo. 564; State ex rel. v. Englemann, 106 Mo. 634; Railroad v. Lackland, 25 Mo. 526; Railroad v. Chrystal, 25 Mo. 544. (8) The Missouri ■statute (Sec. 2054, R. S. 1900) provides that writs of error upon any final judgment or decision of a circuit court in all cases are writs of right and shall issue of course. This statute did not adopt the common-law rule, but on the. contrary the authority to issue writs of error are greatly extended thereby and the statute now applies to all final decisions or. judgments of tlie circuit court affecting property rights in whatever mode of proceedings they may he made or rendered. It includes equitable as well as common-law actions, statutory as well as common-law proceedings. It applies “in all cases” where final judgments are rendered and is broad enough to include condemnation proceédings in the establishment of drainage district. State ex rel. v. Riley, 203 Mo. 191; State ex rel. v. Bland, 189 Mo. 215; Dryden v. Swinburn, 15 "W. Va. 234, 253; Hocke-meyer v. Thompson, 150 Ind. 176; State v. Schneider,, 47 Mo. App. 669. (9) In Missouri writs of error and appeals are concurrent remedies. One is not dependent on the other. One does not exclude the other. The only limitation is that both cannot be prosecuted at the same time. Writs of error are writs of right under section 2054 and are not affected, limited, or qualified to any extent by the provision of section 2038 or any other section of the statute granting appeals. Chinn v. Diavis, 21 Mo. App. 371; Moberly v. Lotter, 266 Mo. 465; Burdick v. Life Assn., 91 Mo. App. 532; Railway v. Railroad, 94 Mo. 542 ; Railroad v. Fire Brick Co., 85 Mo. 322; Kroeger v. Dash, 82 Mo. App. 332.

      Eaff, Meservey, German & Michaels, Martin E. Lawson and Beardsley & Beardsley for defendant in error. .
    (1) If á writ of error does lie in a drainage district proceeding, then all persons owning property in the district must be made parties to the writ of error, or it will be dismissed. R. S. 190^ sec. 2058-, 2059; State ex rel. Holden v. Grill, 84 Mo. 248; Kansas City v. Woerishoeffer, 249 Mo. 1; Drainage Dist. v. Railroad Co., 266 Mo. 60 ; Drainage Dist. v. Foard, 268 Mo. 310; Smith v. Moseley, 234 Mlo. 486. (2) The action of the trial court with respect to damages and benefits was justified by the evidence and the law. Railway v. Hamilton County, 171 la. 741; Levee Dist. v. Dunbar, 107 Ark.-285: (8) It was for the court and not the jury to pass upon the assessment of benefits. Kansas City y. Woerisheoffer, 294 Mo. 23; Railroad v. Pickett, 25 Mo. 539; In re Drainage Dist. v. Richardson, 237 Mo. 49; Cooley on Taxation (3 Ed.),p. 1188; Lewis on Eminent Domain (3 Ed.), secs. 4, 5, 69 and 633. (4) Section 31 of the Act of March 24, 1913!, requiring the railways to raise their embankments and bridges at their own expense is constitutional, and such expense is not damage. In re Drainage Dist. v. Richardson, 237 Mo. 49;-Laws 1913, p. 2!51; Railway v. Levee Dist., 207 Fed. 338; Railway v. Illinois, 200 U. S. 561; Railway v. Board of Supervisors, 182 Fed, 291; Hahn v. Railway, 113 Ark. 537; Cubbins v. River Com., 204 Fed. 299 ; Railway v. Minneapolis, 232 U. S. 430; State ex rel. v. Drainage Dist., 252¡ Mo. 345; State ex rel. v. Drainage Dist., 269 Mo. 444. (5) The Act of March-24, 1913, provides its own code of procedure; it provides for a review of proceedings only by appeal and the general provisions of the Civil Code of Procedure for writs of error do not apply to such special statutory proceedings, and therefore the motion to quash the writ of error must be sustained. Sec. 16, Laws 1913', p. 241; Buschling v. Ackley, 192 S. W. 727. (6) Appeal did not exist at common law and is of purely statutory origin. State v. Thayer, 158 Mo. 36, 53. The method of review at common law was by writ of error, but, of course, it could be sued out only to correct errors in common-law proceedings. 2 Cyc. 508 et seq.; Railroad v. Green’s Admr., 34 Mo. 159. (7) A writ of error is a. new suit begun in a higher court to review the record proceedings of an inferior court. Turner v. Edmondson, 210 Mo. 411, 419; Macklin v. Allenburg, lOOl Mo. 337, 343:. So that for the right to a writ of error to exist here, there must be a right to institute a new suit in the higher court, but section 16 of the Drainage Act provides that “any person may appeal from the judgment of the court,” and an appeal is not a new suit, but a continuation of the ■proceeding already instituted. Macklin v. Allenburg,-100 Mo. 337. It was the intention of the Legislature, in framing- the drainage act, to provide for one single continuous proceeding and that such proceeding should at all times be expedited. This alone clearly negatives any idea that the Legislature intended that a writ of error could lie in a drainage case. Hall v. Thade, 75 Ill. 173; Young v. Hudson, 99 Mo. 102; Duncan v. Forgey, 25 Mo. App. 310 ; Drainage District No. 4 v. Wabash Railroad Company, 216 Mo. 715.
   BROWN, C.

This is a proceeding in the circuit court for Clay County for the assessment of benefits accruing to property situated in the Birmingham Drainage District in that county and to assess damages to property to be taken or injuriously affected in the construction of its works.

The proceeding for incorporation of the district was instituted September 22, 1913,' under the provisions of the act of the General Assembly approved March 24, 1913, pertaining to the “Organization of Drainage Districts by Circuit Courts” (Laws 1913, p. 232), by the filing of the articles of association and giving the notice required by the act. The articles were signed by eighteen persons and corporations owning more than one-half in acreage of the 5390 acres of land in the proposed district. A formal decree of incorporation was entered by the court, and was brought to this court by appeal, where it was affirmed. [In Re Birmingham Drainage District, 266 Mo. 60.]

Supervisors were thereupon elected and such proceedings taken that benefits and damages were assessed, the former amounting to $572,376.27 and the latter to $25,341.20. The estimated cost of the work, including the damages, was $350,657, and the court entered its decree accordingly.

The Chicago, Burlington & Quincy Railroad Company, Chicago, Milwaukee & St. Paul Railway Company, and the Wabash Railway Company, appealed from the judgment to this court on April 1, 1916. In March, 1917, the appeal was, by leave of the court, dismissed, and the appellants sued ont this writ of error, in which seven other lando wndrs in the district joined.

It is sufficiently accurate for the purpose of this statement to say that more than one hundred landowners against whose property benefits, were assessed, failed to file exceptions to the report of the commissioners, and were not notified of the application for or issue of this writ of error, and have made no appearance here.

Upon the return of the writ the Birmingham Drainage District, appearing for that purpose only, filed its motion to quash it on the ground that .error does not lie in a case of this character. This motion was by the court taken with the case and is now up for1 consideration.

The benefits assessed against the property of the three railway companies respectively, as modified by the court, were as follows: The Chicago, Burlington & Quincy, $18,000; Chicago, Milwaukee & St. Paúl, $7000'; Wabash, $71,000. The decree states that in arriving at those amounts the court took into consideration, and deducted from the actual gross benefit found, the estimated cost necessary to be incurred by each railway company in conforming its tracks to the works of the district; which amounted, as there was evidence tending to show, in the case of the Wabash, to $42,000; the C. Bi & Q., $25,000; and the C., M. & St. Paul, $17,000. The damages awarded by the jury to each railway company were confined to land actually taken for or damaged by the work, and amounted to $250 each. The court refused the request of the companies to submit the question of benefits to a jury.

The plaintiffs in error, in their brief, state the issues as follows:

“The principal errors complained of, stated in a broad general way, are:
“The court refused to submit the question of benefits accruing to the corporate defendants, as well as the damages which would be caused to them, to a jury.
“The court’s assessment of benefits ■ is grossly ■excessive under the evidence as well as under the law —that is, the assessment of benefits made by the court is not sustained by any evidence in the case, unless measured by the rule laid down by the statutes, that the benefits shall be assessed at the ‘increased, physical efficiency and decreased cost of maintenance.’ That if such statutory rule is so construed as to justify the result arrived at by the court, then the statute itself would be void as a taking of property without due process of law, and a denial of equal protection of the law. The claim, as to this, is that the 'statute is void for these reasons, even when correctly construed, but that construed and applied as the court has applied it in this case, as shown both by results and declarations of law, then the statute is clearly and unquestionably subject to the foregoing objections.”

I. In the gateway which leads to the merits of this case stands the motion to quash the writ of error which is responsible for its presence in this court. That the question so presented is not without difficulty under our Constitution and statutes in their application to this proceeding is evident upon the most casual examination. That this difficulty was fully appreciated by the plaintiffs in error, and that they dismisses the appeal upon which the matter was pending in this court and substituted this writ for the purpose of giving us a jurisdiction which we did not have and could not exercise by virtue of the appeal, is frankly conceded in their printed argument upon this motion. They refer to our decision in In re Mississippi and Fox River Drainage District; Buschling v. Ackley, 270 Mo. 157, as holding that an appeal allowed in a proceeding under the Act of 1913 brought up two questions only: “First, whether just compensation has been allowed for property appropriated; and, second, whether proper damages have been allowed for property prej-udicially affected by the improvement.” They describe the language used in the act as a trap which “furnishes a very plain and evident reason why the appeals were dismissed, and this attempt made by writ of error to obtain a real review of the decision.” We have noted this phase of the argument because it authorizes us to assume without further discussion which could only lead to the same result, that only a limited appeal is authorized by the statute, while a broader jurisdiction is invoked by the writ of error. Whether this is based upon the theory that whenever the Legislature invokes the assistance of a court in the performance of its governmental duties by a special proceeding of any character whatever, its final action is brought under the yoke of Section '2054 of the General Code (R. S. 1909) notwithstanding the legislative desire to the contrary, or upon the provisions of section three of article six of the State Constitution giving this court “a general superintending control over all inferior courts ’ ’ does not so- plainly appear.

II. Although article three of the State Constitution, while distributing the powers of the State Government into three distinct departments- — the legislative, executive and judicial — forbids any person or collection of persons charged with the exercise of pow-erg properly belonging to one of -those de- , , , . ° , partments to exercise any power properly belonging to either of the others, we have held (State ex rel. v. Higgins, 125 Mo. 864, 368) that . duties which are not judicial may be performed by judicial officers unless they are clearly such as are confined by the Constitution itself to the executive or legislative department. This literal and -altogether reasonable construction is founded in the necessities inherent in all governments. While the power to indicate what the laws shall be is purely legislative, the power to authoritatively determine what they are is judicial, and these are frequently so interlocked as to suggest the assistance of the judiciary in giving practical effect to a legislative enactment. The case before us is an excellent illustration of this principle, because it includes in the accomplishment of the single result contemplated by the Legislature the performance of both legislative and judicial functions distinctly separated by the Constitution, and each definitely assigned to. its own magistracy. To accomplish the single purpose of putting in action a drainage district required not only the enactment of a, statute fixing the extent, purpose and general powers of the district, which is a purely legislative function, but the appropriation of private property for such purpose a-nd determining the damage therefor by jury trial, which are distinctly judicial functions. Between these lies “no man’s land,” a region of action unclassified by the terms of the Constitution.

That these districts are public corporations which may only be constituted by legislative authority exercised through an enactment of the General Assembly and put into effect either directly or by appropriate agencies designated by legislative authority, has been too often held by this court to be open to argument. [Egyptian Levee Co. v. Hardin, 27 Mo. 495; Columbia Bottom Levee Co. v. Meier, 39 Mo. 53; Morrison v. Morey, 146 Mo. 543; State ex rel. v. Drainage District, 192 Mo. 517; Mound City Land & Stock Co. v. Miller, 170 Mo. 240; State ex rel. v. Taylor, 224 Mo. 393; Squaw Creek Drainage District v. Turney, 235 Mo. 80; Little River Drainage District v. Railroad, 236 Mo. 94; Houck v. Drainage District, 248 Mo. 373 ; State ex rel. v. Foard, 268 Mo. 300.] And these drainage districts, when so formed, exercise the granted powers within their territorial jurisdiction as fully, and by the same authority, as municipal corporations of the State exercise the powers vested by their charters. [Houck v. Little River Drainage District, supra; Same case, 239 U. S. 254, 262.] Among other powers they may exercise that of taxation, and this power, so far as it may be expressly granted for the purposes of their incorporation, is only limited by the power of the Legislature which grants it.

The assessment and levy of taxes is a legislative function to be exercised in such manner and by such agencies as the Legislature may designate within the limits of its power. In the assessment and levy of taxes for street improvements it has generally fixed rules resting substantially on the frontage of lots benefited by the improvement, while in this case it has undertaken to secure equality by an assessment of the actual value of the benefits accruing to the property to be subjected to the tax. As we said in the Houck case: “In selecting th'e Subjects of this class of taxation, and in the assessment and levy of the taxes, it is not expected that even approximate perfection will be attained. The discretion of the Legislature, subject only to well-defined constitutional restrictions, must be full and untramelled; otherwise revenue laws would never pass the region of judicial debate into the region of execution.” The Supreme Court of the United States, in the same case (1. c. 265), said:' “The State in its discretion may lay such assessments in proportion to position, frontage, area, market value, or to benefits estimated by commissioners/’ and cites numerous authorities. In the Egyptian Levee case this, court through Judge NaptoN, said: “In every form of taxation, whether general or local, it is certainly desirable and proper that the burden should be distributed as near as may be in proportion to the benefit derived; and constitutional injunctions and restrictions, where they have been attempted on this subject at all, are designed to promote this end. But where there is an absence of constitutional provisions, it is not in the power of the courts to enforce any fancied scheme of equality seeming to them more just than the one adopted by the Legislature. The latter' department of government is wisely entrusted with the entire control of this subject; and if practical injustice is done, the remedy is in the hands of the people. Equality of 'taxation may, however, be regarded as one of those Utopian visions, which neither philosopher nor legislator has ever yet realized.”

Upon principle as well as upon authority the doctrine is well settled in this State that the Legislature might itself from its own information fix the boundaries of an incorporated drainage district; and also fix the amount of special assessments for the performance of the work, placing the same at a level rate founded upon a unit of drainage area ,or upon a proceeding to ascertain the actual benefit accrued to each particular tract; and that it might also delegate any or all these powers to an appropriate agency to he chosen or created by it. There is no more reason to say that it must call to its assistance a court of general jurisdiction in such cases than that it should require the judgment of a court of general jurisdiction in applying the frontage system as a basis for taxation for street improvements or in the assessment of lands for general taxation. In either case, it appoints its own agent and if that agent be a court it may make the power of that court as full and final as if it were vested in a board of commissioners or an assessor.

All these things were evidently in the mind of the Legislature in the preparation of this law. Its initial purpose was evidently to provide an agency with ample facilities for the conduct of the necessary inquiry, including the legal knowledge and judicial discrimination requisite to a clear understanding of the legislative purpose, and to provide ample notice to all persons who might be affected by the result of the proceeding. For this duty it selected the circuit courts of those counties in which the property to be assessed or condemned or any part thereof should he situated. We see no reason to find fault with this selection. That tribunal was necessarily the one in which'proceedings must be had for the appropriation of lands and assessment of damages on account of the property to he taken or injuriously affected in the execution of the plans of the corporation. The payment of these damages was one of the purposes for which benefits must be assessed, and the amount of which was inseparably interwoven ■with, tlie tax upon which their payment would depend. Their assessment involved, under the Constitution, a judicial question as to the public use, as well as a trial hy jury, which is an instrument of judicial inquiry.

It was not only natural, but it seems to us to- have been wise and prudent that the Legislature should, in the interest of facilitating its work, have divided those proceedings which were purely legislative in their nature from those that were constitutionally beyond its control and required judicial action for their validity, and this is exactly what it did. In determining whether or not the order of incorporation should be made the court was required to proceed “in a summary manner;” that is to say, forthwith and without regard to the established course of legal proceeding, disregarding everything h:ut the sufficiency and truth of the articles of association before it, and, should it find that the district should be incorporated, enter its finding and decree accordingly. The district then organized itself hy the election of supervisors, their organization and appointment of officers for the preparation of the plan of reclamation and securing the appointment by the court of commissioners to appraise the land required for rights of way, holding! basins and other drainage works, and to assess benefits and damages accruing to all lands in the district hy reason of the execution of the plan. [Sec. 14.] The same section provides that the public highway, railroad and other rights of way, roadways, railroads and other property, shall he assessed according to the increased efficiency and decreased maintenance cost of roadways hy reason of the protection to he derived from the proposed works and improvements. Upon the coming in of this- report the clerk of the circuit court is required to give public notice of that fact and “the drainage district or any owner of land or other property in said district” might then file exceptions to the report “or to any assessment for either benefits or damages,” and the circuit court is required to hear and determine the same “in a summary manner so as to carry out liberally tlie purposes and needs of the district,” and may amend or modify the report, and if it shall appear that the estimated cost of constructing1 the improvement is less than the benefits against the land and other property in the district the court shall approve it, as so modified and amended, and condemn the lands shown by the report to be needed for fights of way, holding basins and material, following as nearly as possible the appropriation of land for telegraph, telephone and railroad rights of way. Then follows the following provision: “Any person may appeal from the judgment of the court, and upon such appeal there may be determined either' or both of the following questions: First, whether just compensation has been allowed for property appropriated; and, second, whether proper damages have been, allowed for property prejudicially affected by the improvements.” [Sec. 16.] Section 36 provides that no appeal taken under the act should operate as a super-sedeas.

It will be seen that the act in question distinctly divides the duties of the court into two separate parts. The first of these is the examination of the report of the commissioners in the light of all objections made thereto, for the purpose of ascertaining the practicability of the scheme of reclama^ tion. This depended entirely upon whether or not it would pay in benefits for its own cost; otherwise, it would have no function either in justice or reason and the entire plan of paying for the benefits it might confer from the sum of such benefits would fail, because they were not worth the price. This made the ascertainment of the expected benefits the primary subject of the inquiry. The next was the ascertainment of the cost of the work which must be paid for out of this fund, including the amount which would have to be paid as damages for lands taken and injuriously affected. This also must, to facilitate the public improvement, be ascertained in a summary manner. All these matters, excepting the assessment of damages, were legislative in their character and might have been accomplished through the direct action of the Legislature and its administrative agencies. [Houck v. Drainage District, supra.] The condemnation of property for public use is made a judicial question, and the assessment of damages requires, if the parties desire it, a trial which can only be had in a judicial tribunal. The continued existence and functions of the corporation which had already been created depended upon the sufficiency of the fund for the payment of the cost, of which the damages assessed were, in this case, only an insignificant part, while the benefits were ample. An appeal which would only effect the element of damages would not, therefore, necessarily delay or render dangerous the prosecution of the work, while an appeal or other review g’oing to the assessment of benefits might destroy the corporation. The design of the Legislature to avoid such a dilemma, is evident on the face of the act, both in the provision limiting the appeal to the question of damages and in the provision that it should not “he permitted to act as a supersedeas or to delay any action or the prosecution of any work begun under the provisions of this law. ’ ’ The question is not therefore one of interpretation for the purpose of ascertaining the legislative will, hut whether there is any rule of law to prevent us from giving effect to this plain expression of it.

We fail to see any constitutional or other reason why the intention of the Legislature, evident upon the face of this act, to confine our fight of review in these cases to the assessment of damages upon, appeal1 takén within the time provided by statute, should not he respected. The right of review in any case is purely statutory and may, in cases coming within the purview of those provisions of the code authorizing appeals and writs of error, be made available in either mode. The right to enact these statutes includes the right to, repeal or modify them or limit their application in any manner not inconsistent with some provision of the Constitution limiting the legislative power in that respect. In special proceedings guasi-judicial in tlieir nature like the one before ns and providing affirmatively for a limited review, we see no reason why the legislative right should b.e extended beyond its terms, either with respect to its extent or the mode prescribed by the Legislature for its exercise. As to the application of the code provisions with respect to appeals and writs of error in special proceedings in which no provision is made for review we express no opinion.

III. This proceeding was, in substance, provided for the purpose of forming and capitalizing a public corporation for a public purpose. While private corpora-lions are capitalized by voluntary contribution of funds voluntarily contributed and transferred to ^ eorporation to be owned and managed by it for the use in the prosecution of the private enterprise, the fund in this case was to be raised by assessment of “benefits” against the unwilling as well as the wiling, and the principal object of the proceeding in the circuit court was to fix the amount which each person having the statutory interest must contribute to the funds for furtherance of that interest in the enterprise. All persons and corporations subject to this forced contribution were, by the terms of the act, entitled to notice of the proceeding by which they were to be bound. The judgment to be rendered was an entirety, fixing the amount of the enforced contribution on each and could not be extinguished or modified as to one without affecting the interests of all. It might dissolve the corporation by leaving it without funds for the prosecution of the -enterprise, or it might lessen the amount to be contributed by some at the expense of all the others. The corporation itself occupied, to a great extent, the position of a by-stander waiting the result of a contest among the property-holders of the district as to how much each should be held liable to contribute in the common cause, and prepared to administer the fund should it be raised. If, after the final judgment of the. circuit court which settled this controversy, there was to be a review of the proceeding in this court, all the satisfied would be arrayed against the dissatisfied, and would be entitled to notice and to appear and assert their rights. It seems absurd to say, as intimated by the plaintiffs in error, that the corporation formed by the tentative decree should become the representative of either group of contestants in a proceeding in this court to reverse or modify the decree, which fixed their rights as between themselves. If this court is to be substituted for the court to which the Legislature had delegated the power to decide these issues it must of course have the same parties before it that were before the circuit court in the inquiry in which the alleged error was committed.

These parties were all here upon the three appeals which were dismissed to make way for this writ. “When these appeals were taken at the term during which the case was tried, they came here upon the same notice which brought them into the circuit court for the purpose of that inquiry. With the dismissal of the appeals their duty of attendance ceased. If a writ of error should still lie under the provisions of the general code they might come back as plaintiffs in error under the provisions of Sections 2054 and 2058, Revised Statutes 1909, which require that all persons against whom any judgment shall have been recovered shall join in the writ unless otherwise provided, or as defendants in error under the terms prescribed in Section 2071, which requires notice in writing to be served on them twenty days before the return day of the writ. It is not necessary that we should classify these parties with either group. The Legislature no doub:t took the difficulty of doing this into consideration, among other things, in providing the limited remedy by appeal, but whether all these hundred or more parties should be made plaintiffs or defendants there has been no attempt in this ease to bring them in by notice in either capacity and for this reason alone the writ should either be “quashed” as provided in Section 2058 or “dismissed” • as provided in Section 2071. " . ,

For the reasons we have stated we think the writ of error should be dismissed, which is accordingly done.

PEE CUEIAM: — The foregoing” opinion of' BitowN, C., is adopted as the opinion of the court.

All of the judges concur; Bond, P. Jin the result only.