127 Mo. 417 | Mo. | 1895
This is a proceeding commenced in the county court of St. Louis county for the establishment of a public road, known as Forsyth Boulevard, through the land of respondent William Forsyth and others. Commissioners appointed to assess the damages of the said Forsyth made report on the fourth day of August, 1890, which was the first day of the August term of said court. To this report respondent filed exceptions on the twenty-fofirth day of said month. After a trial in said county by a jury, and judgment for the damages found, respondent appealed to the circuit court of St. Louis county, and afterward secured a change of venue to Franklin county.
In said court a motion was made to dismiss the appeal for the reason that exceptions to the report of commissioners were not filed within the time prescribed by statute. The motion was overruled. A trial resulted in a verdict and judgment for respondent for $1,000, and the county of St. Louis appealed.
The statute provides that, in case any person through whose land the proposed road runs refuses to relinquish the right of way, commissioners shall be appointed to assess his damages. The commissioners are required to report on or before the first day of the next regular term of the court thereafter. The statute then provides: “Any party in interest may file written exceptions on or before the third day of said term, if the term shall so long continue; if not, then before the end of said term, unless further time be given by the court.” Provision is then made for having a trial by a jury of six freeholders for the assessment of damages to the party excepting. Section 7799.
If no exceptions are filed as provided, and the court be opinion that the road be of sufficient public
Section 7801 provides that: “In all cases of appeals being allowed from the judgment of the county court, assessing damages, or for opening * * * any road, the' circuit court shall be possessed of the cause, and shall proceed to hear and determine the same anew.”
I. Appellant insists that, respondent having failed, to file his exceptions to the report of the commissioners, on or before the third-day of the term, the county court had no jurisdiction to grant a jury trial, and both the-judgment rendered upon such trial, and the appeal therefrom, are consequently void.
Upon the state of the record, as shown by the abstract furnished us, and by which we are governed, we do not think the question necessarily involved. The abstract simply shows: “The report of commissioners, assessing damages to respondent was filed at the August, term, 1890, of said court, on the fourth day of said month, which was the first day of the term; and thereafter on the twenty-fourth day of the same month the respondent filed his exceptions to said report.” We learn inferentially that there was a jury trial in the-county court as to the damages of respondent, and an appeal from a judgment rendered thereon.
Now the statute authorizes the county court to. extend the time for filing exceptions, and, as it recognized the exceptions filed by respondent and treated them as a sufficient basis for a trial by a jury, we must, assume that it acted legally and within its jurisdiction, until a contrary showing is made. In support of the correctness of its action we will presume that further time was given in which to file exceptions and that they were filed within such time. Such presumptions are-constantly indulged in support of the judgment and
II. The court, over the objection of appellant, permitted witnesses to testify what the value of the land appropriated was at the time of the trial, which was nearly two years after the assessment by the jury in the county court.
We are of the opinion that the court erred in this ruling. In the assessment of damages, under condemnation proceedings, the value of the land should be estimated as of the date of its appropriation. Railroad v. Town Site Co., 103 Mo. 451, and cases cited. Under the statute providing for the condemnation of land for the use of railroads, in the absence of a contrary showing, the date of the assessment by commissioners will be taken as the date of the appropriation. Railroad v. Fowler, 113 Mo. 458; Ragan v. Railroad, 111 Mo. 462. See, also, Webster v. Railroad, 116 Mo. 121.
Section 8800 of the chapter of the general statutes concerning roads and highways requires the court to order the establishment of the road upon the assessment of damages by the jury, in case a jury trial is had. Section 8801 provides that an appeal, prior to the determination thereof, shall not operate as a supersedeas of the proceedings of the county court.
In this proceeding, therefore, under the foregoing authorities, we must take the date of the assessment by the jury in the county court as the date of the appropriation. On the trial in the circu.it court, therefore, the land should have been valued .as of the date of the jury trial in the county court. In the vicinity of large cities the value of land often changes rapidly, and we can not say that the error was not prejudicial.
Judgment reversed and cause remanded.
