112 Mo. 149 | Mo. | 1892
This is a proceeding by injunction, commenced in the circuit court of Johnson county, by which the plaintiff sought to restrain the defendant Burford, as road overseer, from opening a public road over and through, lands of the plaintiff, under an order of the county court.
The material averments of the petition are that “no legal notice was ever given of. the presentation of a petition for such an order; that the county commissioner did not survey, view or mark out a roadway over said land or take relinquishments of right of way for same, or ask for such relinquishments, or make any report of his action as the law requires, and that plaintiff has never, in fact, relinquished the, right of way for a road over said land; that there has never been any assessment of damages to be done the land of the plaintiff by the establishment of said road; that the
The plaintiff to sustain his case introduced the record of the proceedings in the county court.
The petition on its face alleged that the petitioners were freeholders of Ohilhowie and Post Oak townships, through which said proposed road ran; that it was signed by at least twelve freeholders of said township and it specified the proposed beginning, course and termination with not less than two points named on the direction. Revised Statutes, 1889, sec. 7796. It was presented and publicly read at the regular August term of the county court, 1887.
The record made by the county court at that term is as follows: “Now at this day is presented to the court the petition of A. J. Dunham et al., praying for the establishment of a public road, forty feet in width, in Ohilhowie and Post Oak townships, to run as follows: [Here follows a minute description of the route.] And the court having heard said petition publicly read, and it being proven to the satisfaction of the court that it is signed by at least twelve freeholders of Ohilhowie and Post Oak townships, three of whom are of the immediate neighborhood of said proposed road, and that due notice has been given according to law, and that said proposed road is of public utility and practicability, it is ordered that the county commissioner proceed to view, survey and mark out said road and report the practicability of said road, together with the distances and situation of the ground, the names of the parties granting the right of way and the estimated cost of building needed bridges at the next regular term of this court.”
At the next November term the county road commissioner filed his report, showing the land-owners
Thereupon the county court as required by section-7799, Revised Statutes, 1889, section 8, page 247, of Laws, 1887, by its order of record appointed three-disinterested freeholders to act as a jury, view the-premises and assess the damages of those who had failed or refused to relinquish the right of way. At the next February term the commissioners thus appointed made their report, in which they returned that they had viewed the premises and assessed the damages of' each tract of land separately, and the report as to the-plaintiff was as follows: “To H. J. Lingo at end northeast northeast, section 26, township .44, and range-26 — no damages.” t
Thereupon the court made the following order: “Now, at this day is taken up the report of the commissioners heretofore appointed to assess the damages resulting to the premises of L. P. Fisher, H. J. Lingo- and others, by reason of the establishment of a public-road petitioned for by A. J. Durham et al., from which the court finds that said commissioners have viewed-the premises of the parties aforesaid, and have allowed no damages, and no objections being filed to the verdict of said jury, and it appearing to the court that said proposed road is of sufficient utility to justify opening- and improving -the same for public travel, it is, therefore, ordered that a public road, forty feet in width, be-opened and run as follows,” describing the route particularly.
The circuit court granted a perpetual injunction-against the road overseer, from which- he appeals to this; court.
That the county court was only authorized to entertain the proceeding to condemn plaintiff’s land for the road, upon notice given as required by the statute, section 7797, is not to be questioned, but it is a well-settled principle that where the jurisdiction of an inferior court depends upon a fact which said court is required to ascertain and settle by its decision, its decision is conclusive as against a collateral attack. Jackson v. State to use, 104 Ind. 516; In re Grove Street, 61 Cal. 438; People v. Hagar, 52 Cal. 171; Shawhan v. Loffer, 24 Iowa, 217; Porter v. Purdy, 29 N. Y. 106; Lewis on Eminent Domain, sec. 605; Black on Judgments, sec. 288; Elliott on Roads & Streets, 243; State ex rel. v. Smith, 105 Mo. 6.
The county court hai original exclusive jurisdiction to hear and determine upon a proper petition and due notice, whether a new public road should be established over the route designated in the petition. The petition stated every fact necessary to give the court jurisdiction of the subject-matter. Twenty days’ notice of this application was required. The statute required “proof of notice having been given as required.” The county court was the tribunal authorized to hear and determine the sufficiency of the proof. It was not required by law to spread on its record the evidence by which it ascertained that notice had been given. It did find and spread on its record that “notice had been
In Daugherty v. Brown, 91 Mo. 26, a case in all respects similar to this, this court held a recital, that “due legal notice had been giveu of the intended application,” was sufficient and affirmed the judgment of the circuit court refusing to enjoin the overseer from opening the road. The decision in that case is well sustained by authority elsewhere. Hendrick v. Whittemore, 105 Mass. 23; Borden v. State, 6 Eng. (Ark.) 519; Delaney v. Gault, 30 Pa. St. 63.
II. Again it is urged that the failure of the commissioner to have a conference with the plaintiff is fatal. The record is against the plaintiff. It recites that “Lingo failed to relinquish for the reason that he claims $100.” This makes a sufficient showing. The statute only required that the commissioner should “take the relinquishments of the right of way of all persons who may give such, and shall state in his report the names of all persons who have failed or refused to give right of way and the amount they demand therefor. ”
We cannot conceive of any benefit to plaintiff from a further conference. He was reported as refusing to relinquish his right of way. This report secured to him his constitutional right to have his damages assessed to him by a jury. The commissioner could only accept the right of way that was voluntarily given.. He could not agree upon a price, and had no fund with which to pay, if he had agreed. The record discloses' he did all he was authorized by law to do.- Laws, 1887, sec. 7, p. 247; In re Gardner, 41 Mo. App. 589.
It does not appear by what method the jury reached the conclusion that plaintiff was not damaged. Only by inference can it be said that they must have concluded that there were special advantages to him, and, reasoning that his land must have had some value,, offset one against the other. Grranting they did this,, they committed no error in so doing. This has been uniformly ruled since the decision in Newby v. Platte Co., 25 Mo. 258; Jackson Co. v. Waldo, 85 Mo. 637; Daugherty v. Brown, supra.
The argument is made that, because the act of 1887 omits the provision found in section 6933 of the-revision of 1879, requiring the jury to take into consideration the advantages as well as disadvantages, in estimating damages, it was the intention of the legislature-to change the rule and require compensation for the land, unaffected by any benefits that may accrue.
The statute as passed in 1887 requires the jury “to-return under oath the amount of damages to each tract.” It does not specify how they shall arrive at that amount. But the rule had long been adopted by this court in condemnation proceedings under the statute permitting the appropriation of land of private-persons for road, railroad and telegraph corporations, that, in assessing damages of the land-owner, the jury should consider the quantity and value of land taken, and the damage if any to the tract of which it forms, a part, by reason of the road running through it,- and from the sum of these deduct the benefits, if any, peculiar to.such tract; that is to say, benefits peculiar to the tract itself, and not shared in common by it and other-lands in the same neighborhood.
This rule was adopted under statutes in which.
We think then that a proper construction of this change in the language of the statute is that the legislature simply intended to establish uniformity in the statutes, and an additional reason may be found in the fact, that the constitution of 1875 had been construed by this court as not nullifying or impairing the rule laid down in Newby v. Platte Co., supra; Daugherty v. Brown, supra; Jackson Co. v. Waldo, supra.
It follows that the circuit court erred in granting the injunction, and its judgment is reversed, and the cause is remanded with directions to dissolve the injunction and dismiss the bill.
SBPABATE OPINION.
We concur in the views of the case given in the first and second paragraphs of brother Gantt’s opinion; but, in our judgment, the proposition advanced in the third paragraph is not essential to the conclusion reached.
The effect to be given to the change in 1887 in the statute, touching the assessment of such damages, in view of prior rulings and divisions of opinion on the subject in the supreme court, depends on principles of interpretation of the constitution and statutory law which it seems to us unnecessary to discuss at present.
If the court had full jurisdiction in that proceeding its judgment on that finding cannot be reviewed in this collateral action.
Since it was adjudged that no damages were sustained, the question of offsetting benefits or advantages, under the law of 1887, does not arise for consideration in this litigation. In our view it appears preferable to refrain from expressing an opinion upon it until it be actually necessary to some judgment.
