48 Mo. App. 254 | Mo. Ct. App. | 1892
This was an original proceeding in the circuit court of Phelps county, under section 939,' -of the Revised Statutes of 1889, to enlarge a public burial ground. The petition ¡( omitting the caption) was .as follows:
“Your petitioners, Benj. Pore, Wm. Pore, W. H. Pore, John Earpe and W. M. Stogsdill respectfully :state that the following described real estate, situated •on the southeast quarter of the northwest quarter of
The court, after a hearing, rendered the following interlocutory judgment:
“Now at this day, this cause coming on for trial, the parties, plaintiffs and defendants, appear in ^person and by counsel, and the issues herein being submitted to the court, who, after hearing all the evidence in the cause and being fully advised in the premises, finds that the petitioners and the general public of the neighborhood where such public grounds are situated are owners by user for the period of twenty-nine years as a public burial ground of the following described lands, situated on the southeast quarter of the northwest quarter, section 27, township 36, range 8, west, in Phelps county, Missouri, to-wit: Beginning at a point on the west boundary line of said southeast quarter of the northwest quarter, forty-four rods south of the northwest corner thereof, thence east five (5) rods, thence south nine (9) rods, thence west five (5) rods, thence north nine (9) rods to the place of beginning ; that it is absolutely necessary to enlarge the said public burial grounds for the use and necessities of the public as such burial grounds. That the petitioners herein are interested in said public burial ground and its enlargement; that the public and the defendants who are owners of said land cannot agree as to the price to be paid for the same. It is, therefore, ordered and adjudged that the lands within the following metes and bounds be set apart and condemned as an enlargement of said burial grounds, to-wit: Commencing at the northeast corner of the said old burial grounds, as hereinbefore set out, thence east five rods, thence south nine rods, thence' west' five rods, thence north nine rods to the place of beginning on the said southeast-northwest quarter, section 27, township 36, range 8, west, in Phelps county, Missouri, and also a strip of land
Two oE the three commissioners thus appointed filed the following report, which was subscribed and sworn to by them: “We, the undersigned commissioners, duly appointed at the August term, 1890, of the circuit court of Phelps county, Missouri, in the above-entitled cause, as commissioners to assess the damages which may be sustained by the defendants, Mary E. Hoke and her husband, Greo. W. Hoke, by. reason of the condemnation and appropriation of the lands as set forth in the finding and judgment of the court in said cause, a copy of which is hereto attached, and being duly sworn upon our oaths do say that we have fully, fairly and impartially viewed the property appropriated and condemned in said proceedings as set forth in said finding and judgment, to-wit: ‘Beginning at a point five rods east of a second point on the west boundary line of the southeast quarter of the northwest quarter of section 27 in township 36, of range 8, west, in Phelps county, Missouri, forty-four rods south of the northwest corner of the said southeast quarter of the northwest quarter, thence east five rods, thence south nine rods, thence west five rods, thence north nine rods to the place of beginning, and also a strip of land, thirty feet wide, from said tract east to the Rolla and. Houston road, for right of way to and from said burial grounds,’ and we do, under our oath as aforesaid, assess such damages at the sum of $15, and uwe recommend that said right of way of a width of thirty feet be located with its south line on a line east and west with the south line of said
The court thereupon entered the following final judgment:
“ Whereupon it is adjudged by the court that the land in said report be and the same is hereby condemned, set apart and appropriated, as an enlargement of and right of way to the original burial ground, as set out in plaintiff’s petition herein. And it is further adjudged that the petitioners ■ herein pay the costs of this proceeding.
The statute under which this proceeding was instituted reads as follows: “Whenever it shall become absolutely necessary to enlarge any public burial ground or cemetery, and when the public to the number of five or more persons, interested in the enlargement of said burial ground or cemetery, and the owner or owners of the adjoining land, cannot agree as to the price to be paid for the same, or for any other cause cannot secure a title thereto, the public, to the number of five or more persons, may proceed to condemn the same, in the same manner as provided by law for condemnation, appropriation and valuation, in cases of lands taken for telegraph and railroad purposes ; and on such condemnation, and the payment of the appraisement therein provided, the title of such land shall vest in the public for the purposes and uses only for which it was taken.” R. S. 1889, sec. 939.
The law for condemnation, appropriation and valuation, in cases of land taken for telegraph and railroad purposes, is found in article 6 of chapter 42 of the Revised Statutes, the same being the general chapter relating to corporations.
It is the settled law of this state that statutes giving summary proceedings for the condemnation of private property for public uses are strictly construed; that the steps therein required to be taken are conditions precedent to the right of condemnation, and, hence, must be
Such being the record before us, and such the law, it is plain that this proceeding is void on its face for several reasons.
I. The statute relating to the condemnation of lands for railroad, telegraph, etc., 'provides that the commissioners appointed to assess the damages “shall be freeholders, resident of the county,” etc. R. S. 1889, sec. 2736. In this case .the interlocutory judgment
II. The statute (R. S., sec. 939) authorizes this proceeding “ when the public, to the number of "five or more persons interested in the enlargement of said burial ground or cemetery, cannot agree as to the price to be paid for the same,” etc. I am of- opinion that the petition in the present case does' not comply with this statutory provision. It merely recites “ that the public of that neighborhood and the defendants cannot agree as to the price to be paid for the same ; ” and the interlocutory judgment follows the language 'of this recital.
III. The statute, under which this proceeding was instituted (R. S., sec. 939) does not authorize the condemnation of land for a road from the public highway to the public cemetery or burial ground, nor does the petition in the present case ask for the condemnation of such a road. Neverthéless the interlocutory judgment, after authorizing the condemnation of a strip of land along the east side of the cemetery, authorizes a further condemnation of a laterally projecting strip of land, thirty feet wide, running from the cemetery, as thus
IV. It will be perceived that the interlocutory judgment did not fix the location of this projecting strip of land, condemned for a road to the cemetery. It will also be perceived that the commissioners took it upon themselves to fix its location. The statute, under which the commissioners were appointed and from which they derived their powers (R. S., sec. 2736), limits their powers to the assessment of the damages to be paid the landowner, and nowhere empowers them to assist the court in locating the land to be taken, or any part of it. If so much of the interlocutory judgment as condemned the land for this right of way had been otherwise legal, the proceeding would still have been illegal, for the reason that the judgment itself failed to fix the metes and bounds of the strip of land taken for the road. Nor would this informity be helped out by the fact that the final judgment confirmed the unauthorized assumption of power on the part of the commissioners to fix such metes'and bounds.
The judgment of this court is that the judgment be reversed and the cause remanded. It is so ordered.