Anderson v. Pemberton, 89 Mo. 61

Anderson v. Pemberton

89 Mo. 61 | Mo. | 1886

Sherwood, J,

This appeal arises out of proceedings instituted in the county court of Johnson county for the opening of a new road, and those proceedings-were had under the provisions of the act of 1883. Session Acts, 157.

I. Those provisions require that commissioners be-appointed for the assessment <ef damages, and that such commissioners make their report on or before the first day of the next regular term of the county court. Those-provisions also require that should the premises of more than one owner or other person interested be included in the same proceedings or order of court, then the damages shall be stated separately, together with the name of each person interested and a specific description of the-property or premises for which such damages are-assessed. There were several owners of the premises in question, and the statutory provisions were not complied, with:

1. The report contained no description of any land.

2. Nor was it filed on or before the first day of the-next regular term of the county court, nor were the commissioners qualified, nor did they enter on the discharge-of their duties until several days after the term commenced.

Their appointment had thus become functus officio, and had spent its force. If they could enter on the discharge of their duties several days after they were required by the statute to make report and return in writing showing those duties had been performed, then might they do so several weeks, months, or years, after the statutory designated time. The behests of the law cannot thus lightly be disregarded, the statute must be-followed in these proceedings. And so it has been held. *65that where a similar order had expired before its execution, all subsequent proceedings were unauthorized. Road in Reserve, etc., 2 Grant Cases [Pa.] 204. And it was holden, also, in the instance just cited, that the confirmation of the report nunc pro tunc, would not cure the prior failure to comply with the law. And this court-has uniformly spoken in no uncertain tones respecting' the exercise of the right of eminent domain, one of the highest exhibitions of the sovereignty of the state, that our institutions furnish. Thus, in Leslie v. St. Louis, 47 Mo. 477, when discussing this topic, it was very appositely said: “The power to take private property for public use without the consent of the owner is in derogation of the rights of the citizen and can only be justified on grounds of absolute necessity, * * * and when exercised must be strictly adhered and complied with. It is no answer to say that certain things in a given enactment, conferring the authority, do not appear to be essential. Everything is essential which the law has said should be done before this high prerogative right can be carried out and enforced.” So, also, in Ellis v. Railroad, 51 Mo. 200, when discussing the same point, it was said: “In this statutory and summary proceeding, this legal coiop de main, in derogation of common law and common right, the utmost strictness is required in order to give validity, and unless upon the face of the proceedings had, it affirmatively appear that every essential pre-requisite of the statute conferring the authority has been fully complied with, every step from inception to termination will be cor am non judice.” On the same point see Whitely v. Platte Co., 73 Mo. 30; Colville v. Judy, lb. 651.

II. Mrs. Rose was the owner of an eighty acre tract passed over by the proposed road, she and her husband having lived there for some fourteen years, being placed in possession by her father under a parol gift, had paid *66'taxes and made lasting and valuable improvements thereon, and was the equitable owner at least; Anderson v. Shockley, 82 Mo. 250; West v. Bundy, 78 Mo. 407. And perhaps she might be regarded as the legal ownef) owing to the length of time of her confessedly adverse possession, and on the .county map the tract appears in -her name as owner. Besides, the county road commissioner was informed of the fact of her ownership when he went out to view the land. In such circumstances she ought to have been made a party to the proceedings, and to have had her damages assessed, and in the circuit court, where the trial is under the statute de novo (Jefferson County v. Cowan, 54 Mo. 234), she had the right to make her ownership known, and to demand that her damages ¡be assessed before her property be taken. State v. Runyon, 24 N. J. L. 256; State v. Bennett, 25 N. J. L. 329; Carpenter v. Grisham, 59 Mo. 247.

III. And it has been ruled that in such proceedings that' they are proceedings in entirety, if void as to one of the parties in interest, void as to all. Brush v. Detroit, 32 Mich. 43. If this be the true rule, it would certainly find application here, for the land of Mrs. Rose lies between the terminal points of the proposed road, and until her damages are assessed and paid, the road cannot be opened.

The judgment should be reversed.

All concur, but Black, <B, who dissents.