| Mo. | Oct 15, 1886
This litigation grows out of establishing a public road in Johnson county.
I. Looking over the evidence in the cause, I see no reason to doubt the correctness of the conclusion reached, both in the county and in the circuit court, that three of the petitioners lived in the “immediate neighborhood” of the proposed road, in the sense those words are employed in the statute. On this point, evidence was adduced, pro and con., in the county court, and again in the circuit court, and the finding in this regard should not be disturbed. And it was admitted that the petition was signed by twelve freeholders, as required by law.
II. The report of the commissioners appointed by the county court to assess the damages caused by opening the road, was filed in vacation, anterior to the term at which they were required to report. At that term, and on the second day thereof, the report being informal, and not sufficiently specific, the commissioners were directed to file an amended report, which they thereupon did, and their report was approved, and the damages assessed being paid to those who were entitled thereto, except Bole jack, for whom the damages assessed were paid into court, the county court ordered the road opened, and continued to its next term the exceptions filed by the remonstrators, who claimed that the damages assessed were insufficient, and asked for a jury to assess their damages. The remonstrators then appealed 10 the circuit court, where, on trial anew, the same result was reached as in the county court. I have no doubt of the power of the county court to have the report of the commissioners amended, the first report having been filed in due time, and being informal, the report in such case occupying the position of a verdict (Woodrew v. Younger, 61 Mo. 395" court="Mo." date_filed="1875-10-15" href="https://app.midpage.ai/document/woodrow-v-younger-8005183?utm_source=webapp" opinion_id="8005183">61 Mo. 395), and where a verdict is
III. And when the case was appealed to the circuit court, the whole case was removed by the appeal for a trial de novo, exceptions and all. Colville v. Judy, 73 Mo. 651" court="Mo." date_filed="1881-04-15" href="https://app.midpage.ai/document/colville-v-judy-8006810?utm_source=webapp" opinion_id="8006810">73 Mo. 651. If, therefore, the remonstrators were desirous of having their exceptions heard, and of having their damages, etc.,, assessed by a jury, they should have called the attention of the circuit court to the matter, and insisted on their rights. Having failed to do this at the opportune time in the circuit court, they cannot rely on the point in this court; for now it must be deemed waived.
IV. And it was competent for the road to be located after the payment of the money into court for the owner; and the quantum of damages could have been settled afterwards, as has been decided. Railroad v. Evans, 85 Mo. 307" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/st-louis--san-francisco-railway-co-v-evans--howard-fire-brick-co-8008274?utm_source=webapp" opinion_id="8008274">85 Mo. 307. The proper course for the remon-strators to pursue has already been indicated ; but this course they failed to. pursue, when opportunity for that purpose was offered them in the circuit court.
Y. In so far as the judgment of the county court, as to the route of the road, is departed from, in the judgment of the circuit court, the latter judgment will be modified in this court, by striking out the words “as near thereto as practicable,” and the judgment as thus modified, will stand affirmed ; but, inasmuch as this error was one of the grounds of this appeal, the costs of the same must be taxed against the petitioners.