129 Mo. App. 63 | Mo. Ct. App. | 1908
The proceeding was to establish a private road in Pike county, Missouri, leading from plaintiff’s land over the lands of defendants to a public
“To the Honorable County Court of Pike County, Missouri:
“Plaintiff, Daniel O. Chandler, states that he is an inhabitant of Pike county, Missouri; that he owns the east half of the southeast quarter; also the southwest fourth of the southeast quarter and the southeast quarter of the northeast quarter, all in section thirty-five in township fifty-five (55) north, range three (3) west in Pike county, Missouri, upon which he now resides with his family; that no public road passes over or through or touches said land.
“He states that there is an established public road one-half mile eastward from his said land; that he has no outlet or passway from his home or premises aforesaid except through gateways and over the lands of others.
“He therefore asks this court for an order of record establishing a private roa.d twenty (20) feet in width over the lands of Luther F. Sparks and Lois E. Reading beginning at a point in the center of a road 14.80 chains north of the southeast corner of section number thirty-five (35) and the southeast corner of section thir*66 ty-six (36) both in township fifty-five (55) N. R. three (3) west in Pike county, Missouri; thence south over the land of Luther F. Sparks sixty-nine and one-fourth (69 1-4) degrees east 7.50 chains to a point; thence south seventy-six and. one-fourth (76 1-4) degrees east 13.09 chains to a point on the Sparks line; thence south over the land of Lois E. Reading eighty-two degrees east 7.50 chains to a point; thence south eighty-four (84) degrees east 12.25 chains to a point on the public road.
•■“He further states that said road here prayed for is one of great necessity and indispensable to petitioner as he has no outlet to church, to postoffice, to market, or to school, and that the road here asked for is most direct and suitable that could be selected and is now and has been for many years the location of a roadway which passes through gates from petitioner’s said land over the premises of the defendants to the said public road.
“Plaintiff also asks this court to appoint three commissioners to view the location of the road here asked for, and assess the damages to defendants as provided by law.”
A proper notice attached to a copy of the petition was timely served on each defendant, notifying him that the petition would be presented to the county court for action on the sixteenth day of February, 1907. On the day named in the notice the county court took up the petition and, after hearing the evidence, made an order reciting the averments of the petition and concluding as follows:
“It being proven to the satisfaction of the court that due legal notice of the intended presentation of said petition to the court on this day has been given, it is therefore ordered by the court that Charles Robertson, Charles Bollomy and J. G. Oliver, be and they are hereby appointed commissioners to view the premises and to mark out such road and assess the damages*67 to the owners of the land through which it passes and make due report of their proceedings herein at the next term of this court.”
On April 5, 1907, the commissioners appeared before a notary public and made affidavit that they and each of them would “honestly, faithfully and impartially, and to the best of their ability, discharge their duties as such commissioners under the order of said court,” and afterwards filed the following report in the county court:
“We, the above-named commissioners, appointed by the county court of Pike county, Missouri, in the above-entitled cause after having taken and subscribed to the foregoing oath, and after viewing the premises of the road petitioned for in this cause by Daniel C. Chandler, and after having marked out said road, and after having assessed the damages to the owner of theland through which the proposed road "will pass, now do respectfully report that we have marked out the said road twenty feet in width over the said lands of Luther F. Sparks and Lois E. Reading, the center of which shall be located as follows, to-wit: Beginning at a point in the center of a road 11.80 chains north of the southeast corner of section numbered thirty-five (35) and the southwest corner of section thirty-six (36), both in township fifty-five (55) north, range three (3) west, in Pike county, Missouri; thence south over the land of Luther F. Sparks sixty-nine and one-fourth (69 1-1) degrees east 7.50 chains to a point; thence south seventy-six and one-fourth (76 1-1) degrees .east 13.09 chains to a point on the Sparks line; thence south over the land of Lois E. Reading eighty-two (82) degrees east 7.50 chains to a point; thence south eightv-four (81) degrees east 12.25 chains to a point on the public road, and we assess and allow Luther F. Sparks the sum of $25, as and for damages to his land over which the proposed road will pass, and we also allow and assess to the said Luther*68 F. Sparks the sum of $40 for the construction of a wire fence which the opening of the proposed road will, in our opinion, render necessary.
“We also assess and allow to Loisi E. Reading the sum of $280 as and for damages to her land over which the proposed road will pass and we also allow and assess to the said Lois E. Reading the sum of $60 for the construction of a wire fence which the opening of the said road will in our opinion render necessary.
“Respectfully submitted by the foregoing commissioners.
“J. G. Oliver,
“Charles R. Robertson,
“Charles Bollomy.”
Exceptions were filed to the report and a jury was impanelled to assess the damages. The same jury at the same time, by agreement of parties, assessed the damages of both defendants in the circuit court. Their assessments as to both defendants were below the assessments made by the commissioners. The court rendered a judgment on the verdict, sufficient in form and substance, establishing the road as prayed for in the petition, giving judgment in favor of each defendant for the amount awarded him by the jury, and adjudging that defendants pay the costs of the trial. Defendants’ contention is that because the county court failed to find when the petition was presented, petitioner was an inhabitant of Pike county, and also failed to find that the private road asked for was a road of necessity, the court did not acquire jurisdiction of the subject-matter and all subsequent proceedings were null and void. The statute (sec. 9459, R. S. 1899) on which the proceeding is based, reads in part as follows: “If any inhabitant of this State shall present a petition to the county court of the proper county, setting forth that he or she is the owner of a tract or lot of land in such county, or in an adjoining county, and that no public road passes
In Wilhite v. Wolf, 179 Mo., a road case coming under another section of the chapter on public and private roads, the court, in respect to the manner of acquiring jurisdiction of road cases, at page 479, said: “The county court’s jurisdiction to hear and determine whether the proposed change in the road should be made, was complete wheu the petition, properly signed by the requisite number of qualified citizens of the township
As jurisdiction attached to hear and determine the cause by the filing of the petition and due service of notice on defendants, we think it was immaterial at what stage of the proceedings the court found the road proposed was a road of necessity, or that petitioner was an inhabitant of Pike county. It is enough to know that the court found these facts affirmatively at some stage of the proceedings; they were found and are recited in its final judgment; this is sufficient.
Judgment is affirmed.