91 Mo. 26 | Mo. | 1886
This is a proceeding by injunction, to restrain and enjoin the defendant, Brown, as road overseer, and the judges of the county court of Audrain county, from opening a road over the land of plaintiff. The grounds alleged for the relief asked are, that the road was never legally established; that no notice of filing a petition to establish the road had been given ; that the county court acquired no jurisdiction to establish the road; that the right of way had never been legally acquired over the land, and that no compensation had been received by plaintiffs for the right of way.
I. It is insisted that the notice is insufficient, not because it was not put up in three public places in the township, twenty days before the first day of the regular term of the county court, but because it does not appear to have been signed by any person. While, by section 6935, Revised Statutes, it is made necessary that the petition, when presented, should not only be signed, but that it should be signed only by a certain designated class of persons, no such requirement is made by section 6936, as to notice of the presentation of such petition, and, in the absence thereof, we cannot assume to make a requirement which the legislature omitted. To
II. The jurisdiction of the county court to establish and open a new road, is predicated upon the fact that a notice has been given, as required by section 6936, and the presentation of a petition, in conformity with said notice, as provided by section 6935; and, unless these things appear on the face of the proceedings of the court, its judgment is cor am non judice. In this case these jurisdictional facts sufficiently appear in the record of the proceedings had, it being recited in the order of the court as follows : “And it appearing, on the face of the petition, that the signers thereto were twelve householders, in Cuivre township, and that three of them lived immediately on the line of the road sought to be established,” etc. On this notice and petition the county court, after reciting in the order the. presentation of the petition, and that it had been proved, to the satisfaction of the court, that due legal notice had been given of the intended application, then ordered the commissioner to view and mark out the road petitioned for. The record further shows that the commissioner made his report, which was approved, and, upon such approval, that three disinterested householders were appointed to act and assess damages ; that they made a report to the effect that no persons are entitled to dam
These proceedings seem to be regular enough, and the case of Whitely v. Platte County, 73 Mo. 30, and others like it, to which we have been referred, are not analogous to this, for it did not appear in the Whitely case that the required notice had been given.
It is further insisted that, under the constitution of 1875, article 2, section 21, the compensation for land taken for a public use must be in money, and that commissioners, appointed to assess damages for land thus taken, cannot, in estimating damages, take into consideration the peculiar advantages to that which is not, by reason of the use to which that taken is to be devoted, but must assess the money value of that which is taken, without reference to the advantages to that not taken, and that such money value must be paid to the owner, or into court, for him, before his proprietary rights can be disturbed. Previous to the adoption of the constitution of 1875, the rule was firmly established, in this state, by the case of Newby v. Platte County, 25 Mo. 258, and has uniformly been adhered to since, that damages for property taken for a public use may be compensated for, or paid in benefits peculiar to that which is not taken, but not in such benefits as are common to the public at large. We are of the opinion that this rule has neither been nullified nor impaired by the section of
Judgment affirmed.