Chicago, Santa Fe & California Railway Co. v. Eubanks

32 Mo. App. 184 | Mo. Ct. App. | 1888

Ellison, P. J.

— This is a’ proceeding by the railway company under the statute to condemn a right of way over and through the lands of the defendant in Chariton county, Missouri. The petition was filed on the twenty-first day of May, 1887, and is in the ordinary form. Due notice of the pendency of the petition was served upon the defendant, and on the fourth day of June, 1887, commissioners were appointed to assess his damages. Their report was filed in the office of the circuit clerk of Chariton county,-on the ninth day of June, 1887, fixing his damages at sixteen hundred dollars. On the fourteenth day of June, 1887, notice to the defendant of the filing of the commissioners’ report was issued by the circuit clerk, and served upon the defendant on the first day of July, 1887. On the fourteenth day of June, 1887, the railway company filed written exceptions to the report of the commissioners, “for the reason that said, award of damages is excessive, and that the damages really sustained are far below those awarded by said commissioners. ’ ’ The exceptions concluded with a prayer for the appointment of a jury to assess the damages. At the October term of the Chariton circuit court, the defendant moved to strike out the exceptions filed by the plaintiff, “because said exceptions were not filed within the time required by the Revised Statutes of the state of Missouri.” This motion was sustained by the court, and plaintiff appeals.

The only question in this case is the correctness of the action of the circuit court in striking out the exceptions filed by the railway company, without a hearing on their merits, upon the ground that they were not filed within the time required by law. In the determination of that question, the proper construction of section 896 of the Revised Statutes is involved. So much of the section as is applicable to the point at issue reads, as follows: “Upon the filing of such report of said commissioners, the clerk of the court wherein the same is filed shall duly notify the party whose property is affected of the filing thereof ; and the report of said commissioners may be reviewed by the court in which the proceedings are had, on written exceptions, filed by either party in the clerk’s office, within ten days after the service of the notice aforesaid.”

The defendant seeks to sustain the judgment below by invoking the well-recognized principle of law, that the right of eminent domain can only be exercised in the strictest conformity to the statute granting the right; that the statute should receive a guarded construction and be in no wise extended beyond its legitimate meaning. Defendant assumes that the literal terms of the statute sustain the judgment of the trial court, and that to reverse it, we must avoid a strict construction.

The statute is, that in order for plaintiff to be heard on its exceptions, it must file them within ten days after service of notice of the filing of the report. ■ The commissioners’ report was filed on the ninth of June ; on the fourteenth of June notice was issued to defendant, and on the same day plaintiff filed its exceptions, but the notice was not served on defendant until the first of July. On this state of facts defendant contends that the exceptions were not filed within ten days after service of the notice.

Taking the statute literally, the question would turn on the meaning of the word “within.” The primary meaning is, “ in the inner part or side of.” Worcester gives as examples these: ‘ ‘ Go, shut thyself within thy house.” Ezek. 3:24. “That -which is within the cup and platter.” Matt. 23 : 26. This meaning is. therefore not applicable, as I think, to the word as used in the statute. The word is otherwise defined by both Worcester and Webster as, “not beyond” ; and it is in this sense that it is used in the statute. The word “ within ” is not one of such preciseness as to have but one meaning, and in construing a statute, we must adopt that meaning always which has application to the subject.

The statute unquestionably meant that the exceptions should not be filed at a later period than ten days after.service of notice. The expression, “after the service of the notice,” was not intended to mean that the exceptions could not be filed till after the notice was served, but only as fixing a time when the ten days were to begin to run. I can see no reason in any other view. When the report of the commissioners is filed, either party, on inspection, can determine whether he wishes to except to its provisions. I can conceive of no reason or necessity in waiting till notice is served.

The meaning of the statute is, that the exceptions shall be on file within ten days after service of notice ; whether they are placed on file before or after the service can make, no difference. Statutes of other states, using substantially the language of ours, though not on the subject of eminent domain, have been construed by the courts of those states in harmony with the view we have taken. Levert v. Read, 54 Ala. 529; Young v. Orpheus, 119 Mass. 179; Sanburn v. Ins. Co., 16 Gray, 455; Allerton v. Corless, 101 Mass. 40.

The judgment is reversed and the cause is remanded.

All concur.