*1 Ad 50-57; Woerner’s Law of Amer. 271; Adams, 22 Vt. Adams ministration, pp. 355-356.]” the demurrer. properly sustained
The circuit court GC., Bobling, concur. judgment Cooley is affirmed. C., opinion foregoing Westhues, PER CURIAM: —The judges All concur. court. opinion of the adopted as the County. (2d) 371. W. S. Appellant, v. St. Louis Barker, Carl One, April Division *2 Thompson, Thompson A Mitchell, Young, Berry C. P. and' Calvin appellant. A. Brown for
George HenegJum respondent. E. *6 BBADLEY, ejectment C. This cause is in to recover (pri land property) vate taken St. County Louis for a road. The trial court sustained motion judgment defendant’s plead on the ings plaintiff appealed. It is ejectment contended that proper
not the remedy. Plaintiff’s solely case is based theоry on the that, the proceedings resulting his just without compensation utterly are so, ejectment void. If a proper remedy. al. County, v. Platte [Tebbs et S. W. 656.] The constitutionality Bevised Statutes 1929 (Mo. Ann., Stat. sec. p. 6740), permitting private property to be taken for public use, just without compensation, by nonaction Limitations) owner, is the (short general Statute of ; question. plaintiff admits The answer petition is conventional. rights acquired subject possession, to the the owner and to the entitled county pro- court, which in the proceedings in certain defendant *7 September 8, ceedings substance, That in are: pleaded, and, are record, by order de- County County, the of St. Louis of Court public necessity clared it existed for opinion that was of that the taking establishing a of certain described public road and for the property plaintiff’s in petition for land described purposes, road the being portion plead facts, to the goes thereof. The then on answer showing compliance with county proceeded that the in what is court now reply Section Bevised Statutes admitted county compliance the proceeded court in with Section but al- leged county (by permitted far non- that said section so as it the owner) public just action of com- the take land fоr use without to (on taking pensation, invalid, contrary because to Sections use) private property (due process) public for and 30 of Article- Missouri; contrary process Constitution of and to the due clause prohibiting any and any denying the clause from person state “to ’’ jurisdiction equal within its the protection laws, of the Four- the Amendment, teenth Constitution of the United States. is as follows: “The of domain is vested eminent
in the several private property counties of the state to for condemn public purpose, including any land, stone, timber, road earth, rock quarries gravel building, pits necessary establishing, or grading, repairing draining оr roads, building any bridges, said or in abut- county ments or fills opinion thereon. If the court that a be of the public road, necessity for or for' public exists the establishment of a taking any mentioned, the of property purposes land or for the herein county by shall declare, order of so the record and shall direct highway engineer days survey, within fifteen mark thereafter out taken, road, both, and describe said or land or the material to be or prepare location, and to thereof, showing a map the courses and dis- tances, upon public and the lands across proposed or which said road run, area, any will or dimensions, description the and location of property other for purposes herein, both, be taken the or and said highway engineer map shall file report said and a of proceedings his premises in the in the officeof county the clerk. Thereupon county the court shall cause published to be general some newspaper of cir- weeks, county, culation in the once each week for three consecutive giving width, beginning, notice termination, courses and distances and and sections subdivisions of the land over which proposed established, road is to be location, or the area, dimensions and de- any scriptions of other land property or both, taken, to be or sought use for property is to be taken that said land or day twenty days bridge last purposes. road within or after If any damages publication no said claim of of of property county land or be in the clerk’s such office filed insane property, guardians or curators owner said of any owning then persons property, the claim minors said county be authorized barred, owner shall be and the shall forever upon property; appropriate enter lands or other said damages any If claim for accordingly. shall order court make an any regular day filed, the first same shall be heard on the twenty county expiration of the adjourned term of the court after days county If land or last aforesaid. court and the county damages, agree owner be on the amount of the unable to fact, copy cause a reciting such court shall make 'an order county, judge court of of the circuit same to delivered to original in said cause files transcript and a record and clerk of the county clerk to the circuit shall be transmitted county court Upon receipt county. copy the order of *8 judge court, the by judge, or last the circuit the circuit aforesaid hearing for in the cause vacation, setting thereof shall an order make hearing fixing said days, within if date of fifteen and the order the in by judge vacation, be be made in it shall forthwith filed the court, judge vacation, the office of the circuit clerk. The or in shall in empaneled jury be a six not interested cause to freeholders of any county court, any the matter or of kin to the or to member of jury land, prop- landowner in other interest. Said view or shall the taken, erty, proposed the and to be and shall hear evidence determine question damages judge. the of under direction of Five the court or the a; jury concurring may of in of verdict, said return and casе a dis- agreement may jury necessity empaneled. public another for be The taking property inquired by said in shall the nowise be into circuit court, judgment judge and of court, the in the circuit thereof or vacation, in appeal by said cause shall writ not be reviewed or on (Italics ours.) of error.” portion question.
The in italics is part the of said that is section any Plaintiff did not file claim. Section of Article Constitution of Missouri, pertinent here, property so far as private reads: “That damaged compensa- shall not be just taken or public use without compensation tion. Such of by jury shall be ascertained board commissioners of not less freeholders, than in such manner as three may by prescribed law;' paid and until the shall be to the same owner, court for into the owner, property not be disturbed shall proprietary rights of owner therein divested.” McClanahan, On (Petet conceded all fours case 297 construing S. W. 917), is now what this court One) contrary plaintiff’s contention (Division specifically held ease, court did not mention that here, except,’ the Petet the- equal Constitution, Amendment, of the Federal relative to Fourteenth protection frankly if the law. Plaintiff’s counsel concede that ruling correct, plaintiff ease, in the case Petet is then has no judgment vigorously that entered should be affirmed. But it is ably argued wrong.” that the case Petet “is “ ruling question In in the Petet case the court said: It next contended that the statute is unconstitutional because it authorizes private property public just compensa- use without tion. power Leg- The delegated eminent domain been has .general legislative islature grant power, power this may freely subject only express exercise to the limitations of the Constitution. The. limitation said to be contravened statute providing is the just compensation one for the ascertainment of jury commissioners, or board of ‘in may pre- such manner as by law,’ payment compensation scribed and the of such before the rights is disturbed or the owner’s therein are It divested. language will be noted that in which the limitation is couched gives recognition legislative itself prescribe to the discretion to procedure by just compensation to be ascertained its payment But, secured. recognition, Legislature aside from such clearly authority provide invested with ma- such methods and chinery power for the exercise domain as will in eminent opinion advantageous its be most to the and at the time same safeguard rights owner, private and, the constitutional if the procedure prescribed by adequate it is pur- reasonable and poses, it cannot be held to be invalid. controversy proceeding statute under which was had damages
provides may for the assessment of the be sustained *9 taken, the sought owner whose except lands are to be none where are claimed, by jury a freeholders, payment of six thereof be- the pro- appropriation fore the purposes. of the lands to road It further property sought vides that all owners whose is be taken shall be to given thereof, notice damages the claims for that of such of them as fail a claim 20 days to file within thereafter shall be forever provision barred. It is this latter that assailed. said that is It is private the owner of property cannot of deprived property be his just compensation by without nonaction; mere required that it some positive affirmative act on his to constitute a waiver of con- his right compensation. stitutional to such It must be conceded that ordinarily the owner will not be right barred of his to recover dam- ages for appropriation of property by his public to a use mere passive acquiescence therein within any period short of that fixed Limitations; Statute of this positive because duty no upon rests 996 duty is
bim under this statute But to take affirmative action. being given owner, upon requires due imposed It upon him. use, file public sought taken for a to be property is to notice that his hav- penalty of damages, under claim for specified within time his a gives entirety due in its ing right foreclosed. statute his thereto private property take right public to recognition to the of both com- just payment of to the that of the owner public for and to use through the requires the former taking. It pensation before such for ascertainment proceeding county court to initiate the oppor- compensation ample latter payment and affords the of such These present respect claim with thereto. tunity his and be heard to requiremеnts satisfy with opinion the constitutional provisions in our public for use.” respect taking private property to of that authority support the conclusion reached was cited to No “satisfy constitutional 7840 what is now Section provisions pub for requirements private property respect with to the self-enforcing, is Constitution lic use.” Section Article our city which “not may supplemented by charter does but be statute provide but means provision, contravene the constitutional City Louis, 320 carrying provision. of St. [Tremayne out” such (2d) l. S. W. c. and cases there cited.] 2 Lewis, (3 Ed.), In is stated: Eminent Domain section it interpreted by the expressly, “"Where оr as the Constitution either courts, compensation requires property made for taken to be first public use, upon a law initiative the owner and re which easts the quires prosecute him time compensation his claim for within a to barred, limited or a Constitution is invalid. Where under such therewith, complying appropriated to use without right compensation barred, except owner’s not adverse possession period.” prescriptive for the (2 Nichols, 344: “The Ed.),
And in Domain section Eminent constitutionality limiting the time within which an owner of statutes apply compensation land taken un- eminent domain must right altogether question less he is to recоver is a that to lose the it many jurisdictions never arises in In held of the states. some compensation cannot be made con- constitutional upon application owner, ditional" such states it can- not, fortiori, upon application made conditional within his requirement compensation time. In limited other states the taking puts upon con- paid in advance of the burden shall be demning owner, compensation have party hunt out his deter- . .” tender it to him. . mined and " al., 318 Mo. Morgan v. Willman et 1 S. W. was to *10 enjoin and city Joseph foreclose a deed trust of St. and others (land of the possession been con- from condemned land hаd removing site) the build- from 1924) hall and (in for city demned paid for. and was determined interest plaintiff’s until ings thereon, con- prior to the and land were the owners Willmans The de- to trust thereon they gave a deed of proceedings, demnation 27, $3500, June dated a note Hager, to secure fendant, trustee, was of trust Gardner. Deed to years payable in five and due note. $3500 the owner of the Morgan became duly recorded. Plaintiff Gardner, were Hager que, cestui and the the trustee Willmans, The were proceedings condemnation parties to the made defendant the. named directed to publication was personally Also, served. there publication which was concerned,” persons all defendants “and to hearing in the giving notice of “duly according law,” published to persons “and all other defendants condemnation suit to the named other manner or in ownership who are interested reason of hearing, The proceeding.” to in this participate who are entitled 7, 1924, at January held according publication, to be to the was County, “at 9:30 Buchanan One, court, Division m., in circuit a. proceed- person in this any . interested place time . . and) and have ing mentioned may appear place above the time at and be appear commissioners may to be before said heard same after may except report heard and the commissioners to the days any after has been time within filed the circuit court at report Plaintiff, holder filing of the commissioners.” said trust, appear. The $3500 did not note secured the deed of judgment to the Will- proceedings condemnation final and as went to city of land, $12,500 placed man thereon. The lots a value of was through get to Joseph, officers, St. the Willmans its endeavored to accept was they not, and this amount turned $12,500, but would city court, “paid into over to the clerk of the circuit but not court” as thei Will- Later, there was no court order. June аccepted $12,500 mans from circuit court and the clerk judgment, their satisfied the condemnation so far as it concerned land, paid plaintiff but to limited satisfaction “our interest” nothing. mortgagee June Plaintiff’s foreclosure suit was filed judgment was judgment and went to October The etc., city contractors, petition that as to was Joseph, of St. dismissed, plaintiff given judgment against but Willmans was attorney’s interest, provided $3500 note and and for fee as appealed. the note. Plaintiff
The contention of taken plaintiff was that her had been just compensation. particular use without statutes require involved in the condemnation case did “not the named de- fendants, parties interested, file other the condemnation suit a claim or deny claims for compensation; neither does the statute compensation any party interested eon- appear who fails
998 compensation a claim for proceeding or who fails to file demnation Morgan respect therein.” In the in the case was dif situation Morgan appeal judg ferent to On in the case, the situation here. with ment was reversed and cause' remanded directions to reinstate petition judgment plaintiff petition. the and enter for as asked in her 198) In opinion (318 151, the course of the 1 S. W. l. c. the “Conceding, argument, сourt said: plaintiff! for of was the sake that legally party proceeding by a made to the condemnation of reason general publication therein, the order of nevertheless to her 2 compensation, guaranteed by of 21, Article our State Con stitution, wholly is con appear unaffected her to the failure proceeding compensation therein, pro demnation or file a claim for vided, course, damaged public of property her be taken or for that proceeding.” use in such Washington many Illinois, Constitution of Nebraska and use, states, damaging private
other
property
public
on
or
for
Drainage
266
al.,
In
similar to ours.
v. Gar Creek
Dist. et
Moore
necessary
Ill.
Kime Cass W. Cas. ousting” county possession purpose was “for of from of high strip of! land. land was of a The defense was that way “regularly question On of the landowner be established.” ing compensation before or at barred because of “failure to demand Legislature rightly taking,” could time of the court said: “If the require initiatory act a con of affirmative and as the landowner one they might require him precedent obtaining damages, dition to might onerous, or, any other, or a series of acts which be difficult circumstances, impossible performance, and so the con some wholly sеriously guaranty might impaired stitutional thus away. letter, opinion spirit, if1not the frittered We are of requires seeking appropriate the Constitution to private damages should, to its use unless have been waived unequivocal steps mo act, some affirmative and take of its own payment, tion ascertain their and that amount and secure their passive acquiescence by mere an appropriation individual unaccompanied by any conduct indicative of affirmative property, unless, statutory period thereto, not, continued for the assent should rights.” regarded of his are limitations, be a waiver There as Cas., contrary in 8 Ann. note the Kime case cases to the cited l. c. Askam King County, Wash. 36 Pac.
In court give effect a law of language: “To this kind would this used provision Constitution, substantially our overthrow *12 be to 1, private in 16 of Article that no provides, property which Section damaged just having without compensation been shall be taken or owner. paid that, or into for the It is true if the made first court damages, claim for law pro into court and files his the owner comes any machinery having paid; if, it ascertained and but for for vides appear claim, property and file is reason he does not his the to be so having any in provision taken of the Constitution bеen without this language repeated Kin complied The in manner with.” same was 74 City Seattle, 617, caid v. Wash. 134 Pac. self-enforcing (as
If a Section 21 of provision constitutional is is Constitution) any legislation respecting 2 then Article of our provision any must facilitate enforcement and not curtail limit legislative If by provision. a act right created and conferred provisions Constitution, to limit the of the then in- a con undertakes falls. test, [Tremayne Constitution survives and the act v. St. Louis, (2d) 940; 320 6 120, 935, Mo. S. W. l. c. State ex rel. Elsas Comm, 2 Compensation al., 318 W. 1004, Mo. Workmen’s et S. l. c. 799.] hand, authority question we have in There is no wealth of on the by taking private viewing provisions it as affected constitutional on property public only for in use. The Petet case one this State perfectly point, agree in but we cannot to what there ruled and validity the reasons therefor as to the of that of Section challenged. Revised Statutes here It seems that the construc- gave scope language tion in entirely the Petet ease much to the too “in may prescribed by law,” appearing such manner as in Sec- be says tion Article our Constitution. The Constitution “that private property public shall not taken . . be . use without just compensationthat compensation he by “such shall ascertained jury freeholders, or board commissioners of not less three than (Italics ours.) may prescribed by By in such manner as law.” be compensation jury board, whom is By be ascertamedl jury etc. How shall proceed compensa- or board ascertain the tion? may prescribed by “In such manner as be law.” But Section goes beyond provides compensa- the Constitution that the tion will not be ascertained, twenty days if the landowner “within after day publication” last said to file a “claim for dam- fails ages.” We think presents situation a clear conflict between
n
Constitution, Constitution, statute, situation the and the conflicts, falls. But course, statute, far as survives and the so public taking private property for provision, our constitutional on (cid:127)use, just property, compensation does for such not end providing provision and that etc. The compensation ascertained, shall be goes provide (the compensation) toon shall be “until the same 'paid owner, to the shall not owner, property or into court for the (Italics ours.) that a con reason disturbed.” be said in Can it demnation to file statutory provision requires a landowner barred, squares with dámages, here, his claim as forever any part We think 21 of Section Article of the Constitution? requires compensation not. just clearly Constitution be both this paid, ascertained and all before landowner, taken. say here where What we effect on cases has no compensation or is action, some his affirmative waives general barred Limitation. Statute of mandatory In view of our Con very clear directions stitution not think private property use, on we do 'that Statutes twenty days’ provision Revised as can to be Limitations such sense to bar be said a Statute of *13 prescribed. a landowner fails to file a within time who claim rights, example, constitutional may It is one waive some true that al., by v. Bleish et 327 right jury in civil cases. of trial a [Hecker 28, (2d) 447, 37 l. c. Section 377, 'Mo. W. and cases there S. сited.] Missouri, things, among provides 2, other Article Constitution of enjoyed, right jury, as heretofore shall remain that “the of trial inviolate,” litigant a has waived the it that but where has been held instances, right by jury cases, appears, it in most of trial civil etc., therein, without participated litigant proceeded trial, that such to action, demanding jury. words, by waived the In other a affirmative jury. of trial constitutional a better law in our State than rule no settled “There is it unless that courts will hold to be unconstitutional not statute law manner leave no doubt organic contravenes as to in such 154, l. c. unconstitutionality.” Stallard, 250 Mo. of v. its [Bledsoe is no doubt 165, hand, 157 On if there S. W. other 77.] Constitution, part with the that or thereof is in conflict statute court, decide, declare anjr duty duty then it is of whose is in conflict part thereof conflict void or and declare the statute Co., Railroad v. with Constitution. rel. Blades Wabash ex [State we are im here, 251 S. 134, Mo. 158 W. Under the situation 26.] Statutes pelled part 7840, Revised void that declare of Section 297 McClanahan, 1929, italicized, ruling above in Petet v. 677, Mo. 917, ruling here, 249 W. is overruled. S. with our conflict We base our conclusion on 21 of 2 Constitution. Section Article of our
10.01 part of a statute not render remain invalidity “of a does enough discarding remains, after invalid where of statute der legislative intent and to furnish suffi part, tо show the the invalid intent. ex rel. v. effectuate cient means to that McDonald [State (2d) 100, 98, 326 33 S. W. l. c. there Lollis, 644, Mo. cases cited.] eliminating workable, por may 7840 the- We think Section after invalid, when in connection tion the statute we hold taken with 2 21, self-enforcing Article the Constitu provisions tion. subjects necessary process equal due
It is not to consider length plain- are at protection law, of the both of which discussed tiff’s brief. overruling case, ques the Petet of our decision this
In view
present
retroactive
tion
decision be
arises: Should the effect
only?
if
overruled decision is
prospective
or
Our rule
adjective
dealing
procedure,
is, procedural
one
with a rule of
subsequent overruling
prospecr
decision
law, then the
effect of the
dealing with sub
only;
if
decision is one
tive
but
the overruled
overruling
subsequent
law, then the effect
decision
stantive
Co.,
561,
337
Tieman
& Material
Mo.
retroactive.
v.
Coal
[Koebel
524;
Koplar (Mo. App.), 85 W.
(2d)
85 S.
l.
v.
S.
519,
W.
c.
Eberle
al.,
May
Co.
(2d)
923;
Department
l. c.
State
rel.
et
919,
ex
Stores
(2d)
53;
al.,
44,
v.
Mo.
38 W.
l. c.
State ex
567,
Haid et
327
S.
rel.
330 Mo.
S. W.
Pipe
Supply
al.,
v.
Midwest
&
Co. Haid et
183;
(2d)
Pipe
Rosskopf,
Co.
al.
ex rel. Blackmer & Post
et
v.
State
City (Mo.),
287;
Lober v. Kansas
Mo.
55 S. W.
W.
(2d) 815;
208 S.
S. W.
l. c.
Kloeke,
Klocke v.
825;
Douglass County,
Bank
146 Mo.
l. c.
Mountain Grove
Adjective procedural law is law legal rights, procedure; aiding protecting defined rights obtaining redress for prescribes enforcing the method law is that J., their “Substantive p. invasion.” C. 1197.] [1 *14 rights, opposed as to creates, regulates and of law which defines enforcing law, method of adjective prescribes the or remedial 963; p. J.,C. rights obtaining for their invasion.” redress [36 378, 11 S. W. Co., 321 Mo. Mining Maurizi v. Western Coal & proce law 268, and l. c. distinction between substantive The 272.] rights duties which and dural law is “substantive law relates to that machinery give law action,” procedural rise to a cause of while “is 140 (Ohio), carrying on Erie Railroad Co. the suit.” v. [Jones N. E. 366.] brought Douglass 677, plaintiff In County Pike, v. 101 U. of S. Missouri, suit in to recover Court, the Federal Eastеrn District of from issued County Pike from bonds coupons on overdue detached
1002 Judgment county rendered in of on county. was favor by the pursuant were issued plaintiff’s petition. The bonds its to demurrer authorizing townships Legislature, to vote of to an act railroads. The act construction of in facilitate the bonds order to rel. North Mo. Cent. 1869, in State 1868, in and in ex went into effect Court, 504, County was Linn Mo. act Railroad Co. The v. effect, although basically constitutional, be least in to held, at Brassfield, (State rel. Woodson v. subsequent opinion in ex a court 342) County (in the Linn 331, l. pointed it did not out that Mo. c. “with re constitutionality the Act case) of of consider act) spеct (the required to authorize” the to the number of votes it issue of bonds.' At County January bonds were issued
The Pike April (State Term, 1878, Brassfield, in cases ex. rel. Woodson v. two County, 353), Lafayette Mo. Act supra, of and Webb v. authorizing the issue of such bonds held unconstitutional. Not- was withstanding court, ruling in these last-mentioned cases this Douglass County in Supreme United v. Court of the States of ‘‘ plaintiff recover. court The Pike, supra, held that could The said: judicial change in give respect is a to rule to of construction true a operation existing and con- effect in on contracts statute same its amendment; given legislative that rights would to a tract that to retroaсtive. After a statute has say, prospective, make it but not becomes, judicial construction, the construction so been settled rights concerned, acquired far it are as much a as under contract change of itself, of decision to the statute as the text purposes all contracts as an intents the same in its effects on legislative So far as of the law means enactment. amendment rights concerned, saying .have no in that this case we hesitation according the law as it was parties are to be determined to question put on judicially to when in were construed the bonds paper.” the market as commercial ap- supra, cited Klocke, 208 S. W.
In Klocke pears and in- Henry Klocke, October, died childless that remainder seized of a vested testate. At the time of death he was his mother) land devised (subject certain a life of his fee estate March, 1914. to him under father. The mother died the will his Henry Klocke mother, Shortly after death the widow of the belonged to brought suit her partition the land which she claimed alleged death, she was husband at the time of his that entitled Klocke, Henry one-half defendants, therein. sisters of interest will, alleged Henry never and devisees under the Klocke was same possession intervening life land, because of the estate- mother, reason, plaintiff dower, and for was not entitled to not being dower, entitled to to take she was not entitled to elect *15 1003 in interest lieu of dower. The trial court one-half sustained the theory defendants, Henry and held Kloeke that the widow right, title, interest, ques share or estate” in the land in “had no been theory tion. The of defendants had announced as the law in 63 Thomas, 33, appeal, judg Von Arb v. 163 S. W. 94. On Mo.
ment of the trial court in the case and the Kloeke was reversed con given in struction the Yon Arb ease was held untenable and as held, however, decision in that case was overruled. was that the It ruling prospective only. effect оf the in Kloeke v. Kloeke would be part 7840, That 1929, Section Revised Statutes in the vesting private several of eminent domain “to counties condemn^ property purpose” right, public for road substantive but the part portion pro thereof which have held to be void we prescribed by enforcing right. cedure for said section substantive present any situation differs from we or cases have cited that, found from on in point, here, this State the case we are overruling wholly statute, not an untenable construction of a valid overruling sustaining but validity we are a decision the constitutional procedural statute, of a portion proсedural of a which However, portion, is, part, rule, void, we because unconstitutional. our eyes probable consequence, we close to the should cannot our ruling In case, supra, here retroactive. the Koebel it is ruled be (337 561, 524) 85 l. S. W. c. that “courts of final decision may overruling former define and declare the effect of a decision decision, is, operate prospectively only,” that whether not shall 287 citing Ry. Refining & Co., Northern Co. v. Sunburst Oil Great Sup. 360, U. 53 85 In 358, S. Ct. Ed. A. L. R. 254. L. “A defining
last-mentioned case it is stated: state in the limits may precedent adherence to make a choice' itself between principle operation may It of forward that of relation backward. say highest overruled, though its court, decisions of later are Indeed, law none less for are intermediate transactions. there (cf. intimating, broadly Flanagan, cases Tidal Oil U. S. too Co. 197), Sup. give 68 L. Ct. Must Ed. that it them effect; expressed may but never has been that it so treat them doubt ’’ pleases, injustice hardship thereby if it will whenever averted. decision, holding present
“We hold that effect of Section overruling part, Revised Statutes void in the Petet case, ruling far here, prospective as it conflicts with shall be so our only retroactive, except plaintiff. and not as He has borne bringing future, give will, burden of abоut a result property assurance to the owner that his cannot taken except by compliance use with Article of Constitution, possession prescriptive period. adverse *16 judgment remanded, should be reversed and the cause and it Ferguson Hyde, GG., concur. so ordered. and foregoing adopted opinion Bradley, C.,
PER CURIAM: —-The judges All as concur. court. opinion al., Rela at the relation of W. et State M. Anderson Missouri Judge St. tors, v. as the Circuit Court Witthaus, John County, Division thereof. 102 S. W. 99. No. Louis Banc, February Court en Boyd, P. Assistant James Counsel, Ha/rgus, General O. Sam Stigatt, V. Chief Commission; Louis Counsel, Public Service Daniels, Divi- H. P. Highway Commission and Counsel, for State General, Govell B. McKittrich, Attorney Boy Engineer; sion Commander, Casteel, B. General, for M. Hewitt, Attorney Assistant Officer, Troop Commanding Patrol, Leigh, L. Highway T. State C.