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USA Statutes : missouri
Title : LANDS, LEVEES, DRAINAGE, SEWERS AND PUBLIC WATER SUPPLY
Chapter : Chapter 244 Private Drainage Rights
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The owner or owners of all or any part of any tract or parcel of
swamp, wet, flat or overflowed land in this state, situated within or
without any drainage or levee district organized under any laws of this
state, shall have the right, under the provisions of this chapter, to
drain or protect such land for sanitary or agricultural purposes, without
forming such land into a district, by constructing an open ditch, laying
tile or building a levee, and such ditch, tile or levee may be
constructed through or across any tract or parcel of land situate between
such land to be drained or protected and any lake, bayou, hollow, creek,
artificial drainage ditch, river, depression or other outlet into which
the waters from such swamp, wet, flat or overflowed land can be drained,
provided the owner or owners of the land through or upon which such
ditch, tile or levee must be built be paid a sum equal to the value of
land, if any, consumed in constructing such works and the amount of
damages, if any, that will be sustained by such land from the
construction and maintenance of the improvement. (RSMo 1939 § 12455)
Prior revisions: 1929 § 10865; 1919 § 4560; 1909 § 5662
CROSS REFERENCE: County planning commission, class one counties, approval
of improvements, RSMo 64.010 to 64.200
(1974) This section gives no right to obstruct a natural watercourse to
the damage of upstream owners. Dudley Special Rd. Dist. of Stoddard Cty.
v. Harrison (A.), 517 S.W.2d 170.
1. When the owner or owners of the land to be drained or
protected and the owner or owners of the land through or across which
such improvements are to be built or constructed fail to agree as to the
location of the ditch, tile or levee or as to the value of land, if any,
to be used, or the amount of damages, if any, that will result from
constructing the improvements, the owner or owners of the land desired to
be drained or protected shall have the right to file with the circuit
clerk their petition, which shall state the method of drainage or
protection desired, the name or names of the owner or owners of the land
to be drained or protected with a description of the land owned by each,
and the name or names of the owner or owners of the land through or upon
which such drain or levee must pass, with a description of land owned by
each, and that the owners are unable to agree as to the best method to
adopt for the drainage or protection of the swamp, wet, flat or
overflowed land, the value of the land, if any, to be used for any ditch,
tile or levee, or the amount of damages, if any, that should be paid the
owner or owners of the land through or upon which the proposed
improvements must be constructed. Said petition shall pray the circuit
court that commissioners be appointed to consider any and all matters not
agreed upon by the landowners and to make a report and recommendations
for the adjustment of such disagreements.
2. A rough plat of all land that will in any way be affected by the
proposed improvements and indicating the approximate location and course
of the ditch, tile or levee, shall be filed with said petition, but such
plat need not be made by an engineer; provided, that before any such
owner or owners shall have the right to file any such petition he or they
shall first tender in writing to the owner or owners of the land through
or upon which such ditch, tile or levee is to be constructed, a sum of
money equal to the amount of the value of the land, if any, that will be
used in constructing the ditch, tile or levee, plus the damages, if any,
that will accrue to the land and the cost of the crossings, if any are
needed, which said amount, in the estimation of the owner or owners of
the land to be drained or protected, seems just compensation for the
total cost of such items, and the fact of said tender having been made
and the amount of the same shall be stated in the foregoing petition.
(RSMo 1939 § 12456, A.L. 1945 p. 852)
Prior revisions: 1929 § 10866; 1919 § 4561; 1909 § 5665
1. Such petition, as soon as so signed, shall be filed in the
office of the circuit clerk of the county in which is situate the land
that will be affected by the proposed improvements; each person not
having signed such petition, owning land that will be either damaged or
benefited by the construction of the ditch, tile or levee shall be named
as a party defendant in such action and served with a summons and a copy
of the petition, as in ordinary civil actions. If such owner or owners of
land be nonresidents of the state, then such service shall be had as
provided in the civil code of Missouri.
2. The court shall set a date to hear objections, which such date shall
be named in a notice accompanying such petition and given each owner of
land and which hearing shall not be more than twenty days from the return
date; such notice shall state the purpose sought as set out in the
petition and that the person receiving such notice shall have the right
to file objections to the petition. Any person whose land will be
affected in any manner by the proposed ditch, tile or levee shall have
the right to file his objection on or before the date set for such
hearing and before the hour of such hearing. Such objection or objections
shall be limited to a denial of the allegations as contained in the
petition.
3. The circuit court shall hear such objections without unnecessary delay
and if such objections be overruled it shall appoint three disinterested
residents of the county, not of kin within the second degree of
consanguinity to any person owning land to be affected, as commissioners,
who before entering upon their duties shall be sworn to faithfully and
impartially perform the duties imposed upon them by this chapter. (RSMo
1939 § 12457, A.L. 1945 p. 852, A.L. 1990 H.B. 1070)
Prior revisions: 1929 § 10867; 1919 § 4562
(1959) Circuit court of county in which lands sought to be subjected to
an easement are located had jurisdiction of proceeding under this chapter
notwithstanding such lands were included in district organized under
chapter 242 by circuit court of adjoining county. Dillen v. Remley (A.),
327 S.W.2d 931.
Within twenty days after so qualifying, unless prevented by
sickness or some other good cause, said commissioners shall proceed to
view the premises and perform their duties. They shall be furnished by
the clerk of the circuit court a copy of the plat of the land and
proposed improvements filed with the petition under the provisions of
section 244.020. They shall mark out the most practical route and
location of the ditch, tile or levee, and they shall assess the benefits
and damages, if any, that will accrue to each tract or parcel of land,
according to ownership, because of the proposed works; they shall specify
the number of crossings, if any, that will be needed for the use and
convenience of the public or owners of the land to be affected by the
proposed works, and they shall make such recommendations as they may
consider necessary for the use of the circuit court in deciding the
cause. They shall make out their report in writing and after the same
shall have been signed by at least two of said commissioners, it shall be
filed in the office of the circuit clerk. Said commissioners may employ
an engineer or surveyor to run levels, make measurements and obtain such
other information as said commissioners may deem necessary to assist them
in their work. (RSMo 1939 § 12458, A.L. 1945 p. 852)
Prior revisions: 1929 § 10868; 1919 § 4563
Within ten days after the filing of the commissioners' report
the clerk of the circuit court shall give notice of such filing to each
landowner, and said notice shall state the hour and date at which the
circuit court, provided there be not less than five days between the
serving of such notice and the date of hearing, will hear objections to
said report. Any person whose land will be affected by the improvements
as shown by said commissioners' report, shall have the right, on or
before the date set for hearing of said report and before the hour set
for said hearing, to file his objections to said report. (RSMo 1939 §
12459, A.L. 1945 p. 852)
Prior revisions: 1929 § 10869; 1919 § 4564
Said circuit court shall hear all such objections in a summary
manner and without unnecessary delay, and should it find that no
objection should be sustained, the court shall approve and confirm said
report, but if the court shall find that any or all of the exceptions or
objections should be sustained, it shall render its decree accordingly.
All additional costs incurred by hearing and determining such objections
shall be apportioned by the circuit court to the landowners in proportion
to the objections sustained or overruled. If the report of the
commissioners as confirmed, or as modified, shows that the damages and
cost of necessary crossings exceed the amount tendered, under the
provisions of section 244.020, to the owner or owners of the land
traversed by the works, the total court cost of the case, including fees
and expenses of commissioners, shall be paid by the petitioner or
petitioners, but if the amount of such items be not greater than the
tendered amount the cost shall be paid by the objectors. (RSMo 1939 §
12460, A.L. 1945 p. 852)
Prior revisions: 1929 § 10870; 1919 § 4565
1. The word "tract" and "parcel" of land as used in this chapter
shall include town lots or other subdivisions of land according to
ownership. Persons desiring to drain or protect land under the provisions
of this chapter shall not be limited to a single ditch, tile or levee,
but two or more of each or all three may be constructed for the drainage
or protection of the same tract of land.
2. If the report of the commissioners, as approved or as amended by the
circuit court shows the total cost of the improvements, including value
of the land used, the amount of the damages and cost of crossings,
exceeds the total benefits accruing to all the land from the proposed
improvement, the court shall dismiss the case and tax the court costs
against the petitioners. Thereafter any one or more persons owning any
portion of the wet, swamp, flat or overflowed land shall have the right
to construct the ditch, tile or levee at his or their expense, but if
constructed under such conditions the other owners of land that will be
improved shall not be taxed for any of the costs. (RSMo 1939 § 12465, A.
1949 S.B. 1084)
Prior revisions: 1929 § 10875; 1919 § 4570
Any person may appeal from the decision or decree of the circuit
court as provided by law in other civil actions. Such appeal shall not
act as a supersedeas or delay construction of either the ditch or levee
or laying of the tile, but before such work shall be begun the owners of
the land to be drained or protected shall pay into the hands of the
circuit clerk for the use of the parties whose land is taken or injured,
the amount awarded to said party or parties by the circuit court. (RSMo
1939 § 12461, A.L. 1945 p. 852)
Prior revisions: 1929 § 10871; 1919 § 4566
1. The owner or owners of the land benefited shall have the
right, without obtaining permission of the circuit court, to construct
the ditch or levee or lay the tile or to arrange to have such constructed
or laid, but the damages resulting, if any, from the construction of the
same shall be paid in cash to the owner or owners of the land taken or
damaged, or the sum awarded for such items shall be placed in the
possession of the circuit clerk for the use of such persons, before such
construction shall be begun.
2. In case the owners of the land benefited are unable to agree among
themselves as to the manner of constructing the ditch or levee or laying
the tile or letting the contract for the same, the circuit court shall
have the power, upon being petitioned by a majority of persons
interested, after due notice has been given to other interested parties,
to let the work of construction out to the lowest or best bidder, and
after such costs have been determined, the circuit clerk, upon order of
the circuit court, shall apportion the total cost to each tract or parcel
of land according to ownership in proportion the benefits derived as
ascertained and determined by the court, and such cost shall become a
lien upon such land and remain the same until paid.
3. Such lien shall be enforced by suit brought on bills properly made out
and certified to by the circuit clerk, such suit to be brought in the
name of the state at the relation of the interested party or parties in
any court of competent jurisdiction. All sums collected by such suit
shall include the court cost incurred in bringing and conducting such
suit and a reasonable attorney's fee to be fixed by the court hearing
said cause. (RSMo 1939 § 12462, A.L. 1945 p. 852)
Prior revisions: 1929 § 10872; 1919 § 4567
The owners of the land benefited shall have the right at any
time after the ditch, tile or levee has been completed, to go upon the
land through or upon which such works shall have been built and repair
the same, but no right to enlarge or change the location of the ditch,
levee or tile is granted under this chapter without first obtaining
consent of the owner or owners of land traversed, either by free gift or
purchase, but the owner or owners of the land drained or protected shall
have the right to petition for privilege from the circuit court to
enlarge works already made or to make necessary additional improvements,
and such petition shall be proceeded with in the same manner as is
provided in sections 244.020 and 244.030 for original construction. (RSMo
1939 § 12463, A.L. 1945 p. 852)
Prior revisions: 1929 § 10873; 1919 § 4568
1. The parties petitioning shall be liable for all costs
incurred on account of any proceeding under this chapter. Each
commissioner shall receive for his services two dollars for each day
employed and necessary expenses incurred in addition thereto; any
surveyor for services rendered while working under the direction of the
commissioners shall be paid three dollars per day and all necessary
expenses.
2. In case it becomes the duty of the circuit court to have the work
constructed, as is provided for in section 244.090, said court shall have
the right to appoint a special commissioner, who may or may not be a
surveyor, and not owning land that is affected in any way by the works,
to take charge of the construction and report to said court from time to
time as to the progress of said construction and make a full report when
the same has been completed. Such commissioner shall, upon completion of
the work, make a final report to the court, and said court shall, if it
finds said work performed according to contract, accept and confirm said
report. (RSMo 1939 § 12464, A.L. 1945 p. 852)
Prior revisions: 1929 § 10874; 1919 § 4569
1. The petition as signed and filed under the provisions of this
chapter may be amended at any time as other pleadings in other cases.
2. The owner or owners of land within or without any levee or drainage
district organized under the laws of this state shall be permitted to
connect a ditch, tile or levee constructed under the provisions of this
chapter with any artificial ditch, drain or levee of any drainage or
levee district on such terms as the board of supervisors of such drainage
or levee district or the court, under which any such district has been
organized, may prescribe.
3. A petition filed under the provisions of this chapter and any and all
matters pertaining thereto may be heard and determined by the circuit
court at any time at a regular, adjourned or special session. (RSMo 1939
§ 12466, A.L. 1945 p. 852)
Prior revisions: 1929 § 10876; 1919 § 4571
1. Any person or persons, copartnership or corporation willfully
filling up or obstructing or impairing the usefulness of any ditch, tile
or levee constructed under the provisions of this chapter shall be deemed
guilty of a misdemeanor, and upon conviction therefor shall be fined in a
sum not less than fifty dollars nor more than two hundred dollars for
each and every offense, or such person or persons, or the agent or agents
of the copartnership or corporation responsible for such damage or injury
having been wrought, may be confined in the county jail not less than
thirty days nor more than six months.
2. The owner or owners of the land desired to be drained shall have the
right to go upon or send an engineer or surveyor upon the land through or
upon which the ditch, tile or levee is to be built, without first
obtaining consent from the owner or owners of such land, for the purpose
of making measurements, running levels and obtaining other information to
be used in forming conclusions pertaining to the slope of the land,
length of the improvements and proper location of the same; provided,
that notice of the purpose and intention of such act be first given in
writing to the owner of the land through or across which the works are to
be constructed. (RSMo 1939 § 12467)
Prior revisions: 1929 § 10877; 1919 § 4572; 1909 § 5670
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